HomeMy WebLinkAboutCAO 02-20Cfy �t
DICKERING
Report to Council
Report Number: CAO 02-20
Date: May 13, 2020
From: Tony Prevedel
Chief Administrative Officer
Subject: City of Pickering purchase from Ontario Infrastructure and Land Corporation and
sales to Shirva Investment and Developments Corporation and 10466921 Canada
Inc.
- Part of PINs 26402-0106(LT) and PIN 26402-0110(LT), Seaton Innovation
Corridor
- Files: L-4610-007-2019
Recommendation:
1. That Council approve the following agreements:
(a) Agreement of Purchase and Sale of approximately 12.7 acres of employment lands
(Parcel 3) described as Part of PIN 26402-0106(LT), Part Lots 21 and 22,
Concession 5, Pickering, being Parts 5 and 6 on Plan 40R-25010, dated October 22,
2019 between Her Majesty the Queen in Right of Ontario as Represented by the
Minister of Government and Consumer Services, as vendor, and the City, as
purchaser;
(b) Agreement of Purchase and Sale of a 5.28 acre portion of the lands noted in 1(a)
above from the City, as vendor, to Shirva Investment and Developments
Corporation, as purchaser;
(c) Agreement of Purchase and Sale of a 1.12 acre portion of the lands noted in 1(a)
above from the City, as vendor, to 10466921 Canada Inc., as purchaser;
(d) Agreement of Purchase and Sale of approximately 12 acres of employment lands
(Parcel 5) described as Part of PIN 26402-0110(LT), Part Lots 21 and 22
Concession 5, Pickering, being Part 5 and 6 on 40R-30895, dated October 22, 2019
between Her Majesty the Queen in Right of Ontario as Represented by the Minister
of Government and Consumer Services, as vendor, and the City, as purchaser;
2. That City staff be directed to: (i) waive, on the City's behalf, the City Sale Condition
contained in Section 6.04(a) of both the Agreements of Purchase and Sale noted in
paragraphs 1(a) and 1(d) above, and (ii) not make an Environmental Objection pursuant to
section 5 of either of the Agreements of Purchase and Sale noted in paragraphs 1(a) and
1(d) above;
3. That City staff be directed to proceed with completion of all the said Agreements of
Purchase and Sale;
CAO 02-20 May 13, 2020
Subject: City of Pickering purchase from Infrastructure Ontario Page 2
4. That Council authorize the Director, Finance & Treasurer to fund the City's net purchase
price of $586,842 related to 1(a) above, together with Seaton Landowner Group servicing
costs, as provided for in Finance & Taxation's 2019 Capital Budget from account
5203.1903.6265 to be recovered from future benefiting land owners;
5. That Council authorize the Director, Finance & Treasurer to finance the net project cost of
$1,878,304 related to 1(d) above as follows:
(a) the sum of $560,000 as provided for in the 2020 Capital Budget, to be increased to
$758,000, the term approved for 20 years to be revised to 10 years, to be financed
by the issue of debentures by the Regional Municipality of Durham over a period not
to exceed 10 years;
(b) the sum of $21,000 to be funded by a transfer from the Seaton Landowners Group
Financial Impact Agreement (FIA) Reserve Fund;
(c) the sum of $819,000 as provided for in the 2020 Capital Budget to be increased to
$1,098,000 to be financed by the issue of debentures by The Regional Municipality
of Durham over a period not to exceed 10 years to address the funding shortfall of
the Development Charges -Protection Services Reserve Fund ("DC -Protection
Services RF"), and this amount be repaid from future development charge
collections;
(d) the sum of $1,304 to be funded from property taxes;
(e) the annual repayment charges in the amount of approximately $91,150 be included
in the annual Current Budget for the City of Pickering commencing 2020, or such
subsequent year in which the debentures are issued, and continuing thereafter until
the debenture financing is repaid, and any financing cost to be paid out of the
Current Budget;
(f)
(g)
the annual repayment charges in the amount of approximately $132,025 be included
in the annual Current Budget for the City of Pickering commencing 2020, or such
subsequent year in which the debentures are issued, and continuing thereafter until
the debenture financing is repaid from future development charge collections as the
first source of repayment, and the cost of the annual repayment charges be included
in the next Development Charges Background Study;
the Treasurer be authorized to make any changes, adjustments, and revisions to
amounts, terms, conditions, or take any actions necessary in order to effect the
foregoing;
6. That the draft debenture by-laws (Attachment No. 8) attached to this report be enacted;
7 That the Director, Finance & Treasurer be given the authority to fund the estimated post
security costs of $238,000;
CAO 02-20 May 13, 2020
Subject: City of Pickering purchase from Infrastructure Ontario Page 3
8. That the Director, Finance & Treasurer be given the authority to finance the estimated costs
of $1,700,000 for the ongoing obligations to the trustee and Region by undertaking an
internal loan for a period not to exceed 10 years; and
9. That the appropriate City of Pickering officials be authorized to take the necessary actions
as indicated in this report.
Executive Summary: For more than two years, the City has negotiated with the Province of
Ontario for the purchase of five parcels of employment lands within Seaton. The City's primary
purpose throughout these negotiations has been to acquire employment lands with a view to
selling them to employers who will in turn create jobs within Pickering and generate much-needed
economic activity. This will fulfill an important objective of the Central Pickering Development Plan.
Ultimately, these negotiations have resulted in agreements to acquire two of the five parcels. Staff
recommend that the City proceed with the purchases of parcels 3 and 5, as shown on Attachment
No. 1.
Parcel 3 is shown in purple on Attachment No. 1. Parcel 3 comprises approximately 12.7 acres,
out of which approximately 5.28 acres will be sold to Shirva Investment and Developments
Corporation ("Shirva"). Shirva intends to construct an office building of approximately 150,000 ft.2.
Approximately 1.12 acres of Parcel 3 will be sold to 10466921 Canada Inc. That company intends
to construct a gas station and related convenience store. The balance of Parcel 3 consists of a
local road (future Kubota Drive) and a storm water management pond.
Parcel 5 is shown in orange on Attachment No. 1. Parcel 5 comprises approximately 12 acres,
and will be held by the City as a site for a future fire hall and storm water management pond.
Staff recommend that Council approve all four of the above -noted Agreements of Purchase and
Sale. These Agreements are scheduled to be completed on July 23, 2020.
Financial Implications: The City is the purchaser and end user of Parcel 5. Parcel 5 will be
held for future use as a fire hall and storm water management pond. Parcel 3 is being purchased
for resale to end users and for City infrastructure (local road and storm water management pond).
The City's share of land for Parcel 3 is presented below:
Total Acres - Parcel 3
Less:
Shirva Inv. & Development
Corp.
10466921 Canada Inc.
12.70
5.28
1.12 6.40
City Acreage for Parcel 3 6.30
The City's acquisition cost for Parcel 3 is $586,842. This cost will be recovered from future
landowners in the Pickering Innovation Corridor. Future purchasers of lands that benefit from the
CAO 02-20 May 13, 2020
Subject: City of Pickering purchase from Infrastructure Ontario Page 4
City's pond and local road will be required to pay a fair percentage of the City's cost as a condition
of site plan approval.
The total purchase cost of Parcel 5 at closing is $1,878,304. The breakdown of the financing of
this project is presented below:
Parcel 5 Financing Strategy
Debt Component:
DC Debenture Debt
City Share Debt
Financial Impact Res.
Property Taxes
Total
$ 1,098,000
758,000 $ 1,856,000
21,000
1,304
$ 1,878,304
In addition to the above costs, the City is required to post security in the amount of $238,000 with
the Trustee under the Seaton Landowners' Group Cost Sharing Agreement. It is staff's
understanding that the security will be returned to the City in approximately two years as the
construction of services within Seaton proceeds.
Recommendation 8 provides the Treasurer the authority to fund various capital costs related to
Seaton development over the next two years through an internal loan. The City may be subject to
cash calls over the next two years pursuant to the Seaton Landowners' Group Cost Sharing
Agreement. Staff are currently in negotiations with the landowners' group to determine if these
costs can be waived, and it has been indicated to the Chief Administrative Officer that an
agreement to such waiver is forthcoming. In such event, the cash call payable by the City will be
substantially reduced or eliminated. In the interim, it is prudent to budget for them.
Discussion: In accordance with Council direction, the Chief Administrative Officer
executed the four Agreements of Purchase and Sale referred to in Recommendation No. 1 above.
The key provisions of each Agreement are as follows:
Agreement of Purchase and Sale for the purchase by the City of Parcel 3 (12.7 acres of
employment lands) from Her Majesty the Queen in Right of Ontario as Represented by the
Minister of Government and Consumer Services (the "Province") — Attachment No. 2
Lands purchased: Approximately 12.7 acres of employment lands within Seaton.
Purchase price: $1,564,990 subject to adjustment based on measured land area
($158,000/acre for Table Lands and $79,000/acre for storm water management pond lands).
Closing date: July 23, 2020.
CAO 02-20 May 13, 2020
Subject: City of Pickering purchase from Infrastructure Ontario Page 5
Environmental Condition: Section 5.02 of the Agreement provides that the City can make an
Environmental Objection to completing the purchase if it discovers hazardous substances or
contaminants on the Lands. Specifically, section 5.02(d) of the Agreement allows the City to elect
to terminate the Agreement in the event that there is a hazardous substance or contaminant on
the Lands which the Province is unwilling to remedy. The City therefore retained EXP Engineering
Consultants to conduct an Environmental Site Assessment (ESA) of the lands. EXP completed the
Phase 1 and 2 ESA in accordance with the Environmental Protection Act and Ontario. In the
course of performing the ESA, EXP reviewed available background information relating to past
uses of the land (including mapping, plans, reports and aerial photographs), as well as information
available through the EcoLog Environmental Risk Information Service. EXP also carried out an
inventory request of the Ministry of the Environment and Climate Change and the Technical
Standards and Safety Authority to search for any reports of prior issues or spills on the Lands.
EXP also conducted a site inspection and an interview of personnel knowledgeable with the lands.
The conclusion of the ESA is that there are no materially significant environmental concerns with
the lands. The ESA further concluded that there is no evidence of potentially contaminating
activities on the lands, and that there were no areas of potential environmental concern. Based on
the conclusions of the ESA, City staff recommend that there is no need to make an environmental
objection pursuant to section 5.02 of the Agreement or to terminate the Agreement on the basis of
any environmental objection pursuant to Section 5.02(d).
City Sale Condition: Section 6.04 of the Agreement provides that the obligation of the City
to complete the transaction is conditional upon the approval of Pickering City Council. The
Agreement provides that such approval is "in the sole and unfettered discretion of the City" and
that such approval may be "arbitrarily and unreasonably withheld". City staff negotiated this
condition to ensure that Council retained control over whether or not to proceed with the purchase.
The City has retained Torys LLP to perform all commercially normal title and off -title searches in
respect of the Lands to ensure that there are no title problems or other issues that might impair
the marketability of the Lands or the ability of the Province to deliver to the City a valid and
registrable Transfer of the Lands on closing. Torys LLP has confirmed to City staff that it has
completed all necessary searches, and that the searches have not disclosed any problem with the
marketability of the Lands or the Province's title thereto.
In view of the clear results of the title and off -title searches, City staff recommend that Council
approve the waiver of the City sale condition. This will cause the Agreement to become a firm,
binding and unconditional obligation enforceable against both the Province and the City. The City
would then be obligated to close the transaction in accordance with the terms of the Agreement.
Participation Covenant: Schedule "G" to the Agreement is a Participation Agreement which the
Province requires the City to enter into as a condition of the purchase of the Lands. In accordance
with applicable Provincial policy, the Participation Agreement obligates the City to account to the
Province for profit earned by the City upon any sale of the Lands within ten years after the City's
initial purchase.
Servicing costs: As a condition of purchasing the lands, the City is obligated to assume all
servicing costs associated with the lands pursuant to the Seaton Landowners Group Cost Sharing
Agreement. These costs are set out on the Schedule prepared by SCS Consulting Group
CAO 02-20 May 13, 2020
Subject: City of Pickering purchase from Infrastructure Ontario Page 6
(Attachment No. 6 to this Report). Please note, however, that these costs will be assumed
proportionately by future developers of adjacent properties, including the City's purchasers, Shirva
and 10466921 Canada Inc.
Agreement of Purchase and Sale for the purchase by the City of Parcel 5 (12 acres of
employment lands) from the Province — Attachment No. 3
Lands purchased: Approximately 12 acres of employment lands within Seaton, inclusive of a
heritage structure. (Fire Services has confirmed that the heritage structure will not materially
impede use of the site for a fire hall.)
Purchase price: $1,341,420, subject to adjustment based on measured land area
($158,000/acre for Table Lands and $79,000/acre for storm water management pond lands).
Closing date: July 23, 2020.
Environmental Condition: Section 5.02 of the Agreement provides that the City can make an
Environmental Objection to completing the purchase if it discovers hazardous substances or
contaminants on the Lands. Specifically, section 5.02(d) of the Agreement allows the City to elect
to terminate the Agreement in the event that there is a hazardous substance or contaminant on
the Lands which the Province is unwilling to remedy. The City therefore retained EXP Engineering
Consultants, to conduct an Environmental Site Assessment (ESA) of the lands. EXP completed
the Phase I and 2 ESA in accordance with the Environmental Protection Act. In the course of
performing the ESA, EXP reviewed available background information relating to past uses of the
land (including mapping, plans, reports and aerial photographs), as well as information available
through the EcoLog Environmental Risk Information Service. EXP also carried out an inventory
request of the Ministry of the Environment and Climate Change and the Technical Standards and
Safety Authority to search for any reports of prior issues or spills on the Lands. EXP also
conducted a site inspection and an interview of personnel knowledgeable with the lands. The
conclusion of the ESA is that there are no materially significant environmental concerns with the
lands. Based on this, City staff recommend that there is no need to make an environmental
objection pursuant to section 5.02 of the Agreement or to terminate the Agreement on the basis of
any environmental objection pursuant to Section 5.02(d).
City Sale Condition: Section 6.04 of the Agreement provides that the obligation of the City
to complete the transaction is conditional upon the approval of Pickering City Council. The
Agreement provides that such approval is "in the sole and unfettered discretion of the City" and
that such approval may be "arbitrarily and unreasonably withheld". City staff negotiated this
condition to ensure that Council retained control over whether or not to proceed with the purchase.
The City has retained Torys LLP to perform all commercially normal title and off -title searches in
respect of the Lands to ensure that there are no title problems or other issues that might impair
the marketability of the Lands or the ability of the Province to deliver to the City a valid and
registrable Transfer of the Lands on closing. Torys LLP has confirmed to City staff that it has
completed all necessary searches, and that the searches have not disclosed any problem with the
marketability of the Lands or the Province's title thereto.
CAO 02-20 May 13, 2020
Subject: City of Pickering purchase from Infrastructure Ontario Page 7
In view of the clear results of the title and off -title searches, City staff recommend that Council
approve the waiver of the City sale condition. This will cause the Agreement to become a firm,
binding and unconditional obligation enforceable against both the Province and the City. The City
would then be obligated to close the transaction in accordance with the terms of the Agreement.
Participation Covenant: Schedule "G" to the Agreement is a Participation Agreement which the
Province requires the City to enter into as a condition of the purchase of the Lands. In accordance
with applicable Provincial policy, the Participation Agreement obligates the City to account to the
Province for profit earned by the City upon any sale of the Lands within ten years after the City's
initial purchase.
Servicing costs: As a condition of purchasing the lands, the City is obligated to assume all
servicing costs associated with the lands pursuant to the Seaton Landowners Group Cost Sharing
Agreement. These costs are set out on the Schedule prepared by SCS Consulting Group
(Attachment No. 7 to this Report). Please note, however, that the Seaton Landowners' Group has
indicated a willingness to eliminate, or at least significantly reduce, these costs to reflect the fact
that the City is using these lands for a future fire hall and will not profit from any development of
them.
Agreement of Purchase and Sale for the sale of a 5.28 acre portion of Parcel 3 to Shirva
Investment and Developments Corporation — Attachment No. 4
Lands sold: Approximately 5.28 acres of employment lands within Seaton Parcel 3.
Sale price: $834,240, subject to adjustment based on measured land area ($158,000/acre).
Deposit: The full sale price has already been paid by Shirva as a deposit.
Closing date: July 23, 2020
Purchaser's conditions: Shirva has waived the conditions included in the Agreement for its
benefit.
Key provisions: The Agreement of Purchase and Sale requires Shirva to assume all servicing
costs associated with the lands pursuant to the Seaton Landowners' Group Cost Sharing
Agreement, and to pay the City's legal and other acquisition costs for the lands as an adjustment
on closing.
Schedule "G" of the Agreement of Purchase and Sale contains a Right of First Refusal for the
benefit of the City. It entitles the City to buy back the land at the original sale price if Shirva fails to
obtain a building permit for construction within 5 years of closing.
Agreement of Purchase and Sale for the sale of a 1.12 acre portion of Parcel 3 to 10466921
Canada Inc. — Attachment No. 5
Lands sold: Approximately 1.12 acres of employment lands within Seaton.
Sale price: $176,960, subject to adjustment based on measured land area ($158,000/acre).
CAO 02-20 May 13, 2020
Subject: City of Pickering purchase from Infrastructure Ontario Page 8
Deposit: The full sale price has already been paid by the purchaser as a deposit.
Closing date: July 23, 2020
Purchaser's conditions: 10466921 Canada Inc. has waived the conditions included in the
Agreement for its benefit.
Key provisions: The Agreement of Purchase and Sale requires 10466921 Canada Inc. to
assume all servicing costs associated with the lands pursuant to the Seaton Landowners' Group
Cost Sharing Agreement, and to pay the City's legal and other acquisition costs for the lands as
an adjustment on closing.
Schedule "G" of the Agreement of Purchase and Sale contains a Right of First Refusal for the
benefit of the City. It entitles the City to buy back the land at the original sale price if 10466921
Canada Inc. fails to obtain a building permit for construction within 5 years of closing.
Attachments:
1. Map of Parcels 3 and 5.
2. Agreement of Purchase and Sale for purchase of Parcel 3 from the Province.
3. Agreement of Purchase and Sale for purchase of Parcel 5 from the Province.
4. Agreement of Purchase and Sale for sale of 5.28 acres of Parcel 3 to Shirva.
5. Agreement of Purchase and Sale for sale of 1.12 acres of Parcel 3 to 10466921 Canada Inc.
6. Schedule of servicing costs prepared by SCS Consulting Group re Parcel 3 lands.
7. Schedule of servicing costs prepared by SCS Consulting Group re Parcel 5 lands.
8. Draft Debenture By-laws for Funding of Fire Hall Land Purchase.
Prepared By: Prepared By:
Paul Bigioni Stan Karwowski
Director, Corporate Services & City Solicitor Director, Finance & Treasurer
CAO 02-20
May 13, 2020
Subject: City of Pickering purchase from Infrastructure Ontario Page 9
Prepared By:
Fiaz Jadoon
Director, Economic Development & Strategic Projects
PB:ks
Recommended for the consideration
of Pickering City Council
Tony Prevedel, P.Eng.
Chief Administrative Officer
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Attachment No. 2 to Report CAO 02-20
Execution Version
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS REPRESENTED BY THE
MINISTER OF GOVERNMENT AND CONSUMER SERVICES
as "Vendor"
and
THE CORPORATION OF THE CITY OF PICKERING
as "Purchaser"
AGREEMENT OF PURCHASE AND SALE
(Employment Land — 2019 Parcel 3)
38997-2001 28256802.2
TABLE OF CONTENTS
SECTION 1 DEFINITIONS 1
SECTION 2 AGREEMENT OF PURCHASE AND SALE 7
SECTION 3 DEPOSIT / PAYMENT OF PURCHASE PRICE 8
SECTION 4 IIARMONIZED SALES TAX 9
SECTION 5 "AS IS WHERE IS", PURCHASER'S INSPECTION PERIOD, AND
ENVIRONMENTAL INDEMNITY 10
SECTION 6 CLOSING CONDITIONS 13
SECTION 7 SALE APPROVAL 15
SECTION 8 CLASS EA REQUIREMENTS / ABORIGINAL CLAIMS 15
SECTION 9 RISK 17
SECTION 10 VENDOR'S WARRANTIES, REPRESENTATIONS AND COVENANTS 18
SECTION 11 PURCHASER'S WARRANTIES, REPRESENTATIONS AND COVENANTS 18
SECTION 12 SEVERANCE 19
SECTION 13 REFERENCE PLAN(S) 19
SECTION 14 TITLE 19
SECTION 15 NO ASSIGNMENT ETC. 20
SECTION 16 DEVELOPMENT AGREEMENTS 20
SECTION 17 PREPARATION OF TRANSFER/DEED DOCUMENTS AND FEES/COSTS 22
SECTION 18 TENDER 22
SECTION 19 ADJUSTMENTS 22
SECTION 20 ELECTRONIC REGISTRATION 23
SECTION 21 CLOSING DELIVERABLES 23
SECTION 22 NOTICE 25
SECTION 23 CONFIDENTIALITY 26
SECTION 24 GENERAL 26
SECTION 25 IRREVOCABLE PERIOD 27
38997-200128256802.2
AGREEMENT OF PURCHASE AND SALE
BETWEEN:
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO
AS REPRESENTED BY THE MINISTER OF GOVERNMENT AND
CONSUMER SERVICES
(hereinafter collectively called the "Vendor")
- and -
THE CORPORATION OF THE CITY OF PICKERING
(hereinafter called the "Purchaser")
RECITALS:
OF THE FIRST PART
OF THE SECOND PART
A. The Vendor is the owner in fee simple of the property defined as the "Lands" in Section 1.01(vv)
of this Agreement.
B. Vendor and OILC hereby confirm that OILC is the designated agent of the Vendor.
C. The Lands are within the area covered by the "Central Pickering Development Plan" issued
pursuant to the Ontario Planning and Development Act, 1994, S.O. 1994, c.23.
D. The Lands are subject to the Development Agreements, and the Purchaser has agreed to assume
the Development Agreements as they relate to the Lands.
E. The Lands are subject to the Lease(s), and the Purchaser has agreed to assume the Lease(s) as they
relate to the Lands.
F. The Purchaser has offered to purchase the Property from the Vendor on the terms and conditions
hereinafter set forth.
NOW THEREFORE in consideration of the mutual covenants hereinafter set forth and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1
DEFINITIONS
1.01 Definitions
Unless the context expressly or by necessary implication indicates a contrary meaning, the terms
defined in this Section 1.01 for all purposes of this Agreement, shall have the meanings set out below:
38997-2001 28256802.2
(a) "Adjustments" means the adjustments to the Purchase Price provided for and determined
pursuant to this Agreement.
(b) "Affiliate" has the meaning set out in the Business Corporations Act, R.S.O. 1990, c. B.
16.
(c) "Agreement" means collectively, this agreement of purchase and sale, all Schedules
attached hereto and every properly executed instrument which by its terms amends,
modifies or supplements this Agreement.
(d) "Applicable Laws" means, collectively, all statutes, laws, by-laws, regulations, ordinances
and orders of any governmental Authority, including without limitation all Land Use
Regulations.
(e) "Approval Term" has the meaning ascribed to it in Section 7.03.
(f) "As Is Where Is" has the meaning ascribed to it in Section 5.01.
(g) "Assignee" has the meaning ascribed to it in Section 15.02.
(h) "Assignment and Assumption Agreement" means an agreement by which the Vendor
shall assign and the Purchaser shall become a party to a Development Agreement, Lease
or Permitted Encumbrance and whereby the Purchaser assumes the responsibility of the
Vendor with regard to the Property pursuant to such Development Agreement, Lease or
Permitted Encumbrance.
(i)
"Attribution Development Charges" means the Regional Attribution Water Supply DC
and the Regional Attribution Sanitary Sewerage DC (as such terms are defined in the Phase
1 RFEA) from time to time.
(j) "Attribution Prepayment" means the sum of the "Regional Attribution Water Supply DC
Prepayment" and the "Regional Attribution Sanitary Sewerage DC Prepayment" (as such
terms are defined in the Phase 1 RFEA) from time to time.
(k) "Authority" means any governmental or quasi -governmental authority, regulatory
authority, government department, agency, commission, board, tribunal, body or
department, or any court, whether federal, provincial or municipal, having jurisdiction over
the Property, or the use thereof, and includes the City and the Region.
(1)
(m)
"Buildings" means, individually or collectively, as the context requires, all buildings,
structures and fixed improvements located on, upon or under the Lands, and all
improvements and fixtures of the Vendor contained in, upon or on such buildings and
structures which are used in the operation of same, and "Building" means any one of the
Buildings.
"Business Day" means any day on which the Government of Ontario normally conducts
business.
(n) "City" means the City of Pickering.
-3-
(o) "City Sale Approval" means the necessary internal approvals required for the Transaction
by the Council for the City.
(p) "Class EA" means the Class Environmental Assessment Process for the Ministry of
Infrastructure as it applies to OILC realty activities (being as at the Execution Date, the
"Ministry of Infrastructure Public Work Class Environmental Assessment (Office
Consolidation)", as approved April 28, 2004 and amended on September 11, 2008 and on
October 31, 2012), as approved, amended, or renewed from time to time by the Minister
of the Environment and Climate Change pursuant to Section 14 of the Environmental
Assessment Act, R.S.O. 1990, c. E.18.
(q)
"Class EA Requirements" has the meaning ascribed to it in Section 8.01.
(r) "Closing" means the closing of the Transaction, including without limitation, the payment
of the Purchase Price and the delivery of the closing documents in accordance with the
provisions of this Agreement.
(s) "Closing Date" means the day which is thirty (30) Business Days next following the date
the Purchaser waives or satisfies its condition(s) contained in Section 5 and Section 6.04
of this Agreement.
(t) "Community Use Land" has the meaning ascribed to it in the Seaton CSA.
(u) "Contaminant" has, for the purposes of this Agreement, the same meaning as that
contained in the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended, and shall
include the requirements of any and all guidelines and/or policies issued by the Ontario
Ministry of the Environment and Climate Change and/or the Ministry of Labour.
(v) "Cost Shared Service" has the meaning ascribed to it in the Seaton CSA.
(w) "Crown Right Request" has the meaning ascribed to it in Section 12.01.
(x) "DC Credit Recovery Payment" has the meaning ascribed to it in Section 16.03.
(y) "Deposit" has the meaning ascribed to it in Section 3.01.
(z) "Developable Area Share" has the meaning ascribed to it in the Seaton CSA.
(aa) "Development Agreements" means, collectively, the Phase 1 RFEA, the Seaton CSA, the
Pickering FIA, the Seaton -Durham CSA and the Master Parks Agreement, and
"Development Agreement" means any one of such agreements.
(bb) "Development Agreement Payment" means any payment required to be made, or security
to be provided, to an Authority, to the Vendor, or to a trustee named under a Development
Agreement, by the Purchaser at Closing hereunder and whether required by an Assignment
and Assumption Agreement or otherwise, and includes, but is not limited to, the DC Credit
Recovery Payment, Attribution Prepayment, Development Agreement Security,
Development Charge Payments, and Private Land Landowner Equivalency Payment.
-4 -
(cc) "Development Agreement Security" means any security required to be delivered by a
Private Landowner pursuant to a Development Agreement, whether by letter of credit or
otherwise.
(dd) "Development Charge Credits" means the development charge credits earned pursuant
to the Phase 1 RFEA.
(ee) "Development Charge Prepayments" means the prepayments on account of the Regional
Attributions Development Charges required to be paid to the Region pursuant to the Phase
1 RFEA upon the development of Employment Lands.
(ff)
(gg)
"Drainage Area Share" has the meaning ascribed to such term in the Seaton CSA.
"Durham Owners" has the meaning ascribed to it in the Seaton -Durham CSA.
(hh) "Employment Lands" means those lands designated as "Prestige Employment Lands" in
the `Central Pickering Development Plan'.
(ii) "Environmental Law" means, collectively, all Applicable Laws and agreements with
governmental Authorities and all other applicable federal and provincial statutes,
municipal and local laws, common law and deed restrictions, all by-laws, regulations,
codes, licences, permits, orders, directives, guidelines, decisions rendered by any
governmental Authority relating to the protection of the environment, natural resources,
public health, occupational health and safety or the manufacture, processing, distribution,
use, treatment, storage, disposal, packaging, transport, handling, containment, clean-up or
other remediation or corrective action of any Hazardous Substance, and all authorizations
issued pursuant to such Applicable Laws, agreements or statutory requirements.
(jj) "Environmental Objection" has the meaning ascribed to it in Section 5.02.
(kk) "Environmental Reports" means the reports relating to the environmental condition of
the Lands as identified in Schedule C.
(11) "Execution Date" means the date on which this Agreement has been executed and
delivered by all parties hereto.
(mm) "Expiry Date" has the meaning ascribed to it in Section 7.03.
(nn) "Further Class EA Extension Period" has the meaning ascribed to it in Section 8.02(d)(i).
(oo) "Further Extension Period" has the meaning ascribed to it in Section 8.03(b).
(pp) "Hazardous Substance" includes, but is not limited to any hazardous or toxic chemical,
waste, by-product, pollutant, contaminant, compound, product or substance, including
without limitation, any Contaminant, asbestos, polychlorinated biphenyls, petroleum and
its derivatives, by-products or other hydrocarbons and any other liquid, solid or gaseous
material the exposure to, or manufacture, possession, presence, use, generation, storage,
transportation, treatment, release, disposal, abatement, cleanup, removal, remediation or
handling of, which is prohibited, controlled or regulated by any and is defined in or
pursuant to any Environmental Law.
-5-
(qq) "Heritage Requirements" has the meaning ascribed to it in Section 8.01(b).
(rr) "HST" has the meaning ascribed to it in Section 4.01 of this Agreement.
(ss) "Initial Class EA Extension Period" has the meaning ascribed to it in Section 8.02.
(tt) "Initial Extension Period" has the meaning ascribed to it in Section 8.03.
(uu) "Inspection Period" means that period of time which is seventy (70) Business Days
following the Execution Date.
(vv) "Lands" means, collectively, the Table Lands and the SWP Lands.
(ww) "Land Use Regulations" means collectively, any land use policies, regulations, by-laws,
or plans of any Authority that apply to the use of the Property, including the existing
Official Plans, zoning by-laws and zoning orders.
(xx) "Land Transfer Tax Affidavit" has the meaning ascribed to it in Section 17.01.
(yy) "Lease(s)" means all leases or licences of any portion of the Lands in force at Closing.
(zz) "Master Parks Agreement" means the Master Parks Agreement dated May I, 2017
entered into by the City, and the owners of other development land in the Seaton
Community for the purpose of establishing arrangements pertaining to the satisfaction of
the park dedication requirements for the Seaton Community.
(aaa) "Municipality" means the municipality (or municipalities) where the Property is located.
(bbb) "Offer Date" means the date the offer herein is submitted to the Vendor by the Purchaser.
(ccc) "OILC" means Ontario Infrastructure and Lands Corporation.
(ddd) "Open Data" means data that is required to be released to the public pursuant to the Open
Data Directive;
(eee) "Open Data Directive" means the Management Board of Cabinet's Open Data Directive,
updated on April 29, 2016, as same may be amended from time to time;
(fff) "Participation Agreement" means the Participation Agreement attached hereto as
schedule G and to be entered into between the Vendor and the Purchaser at Closing.
(ggg)
"Permitted Encumbrances" means, collectively, the encumbrances listed in Schedule B
and any encumbrances created under the terms of this Agreement.
(hhh) "Phase 1 RFEA" has the meaning ascribed to such term in the Seaton CSA.
(iii) "Phase 1 RFEA Lands" has the meaning ascribed to such term in the Phase 1 RFEA.
(jjj) "Phase 1 Development" has the meaning ascribed to such term in the Seaton CSA.
(kkk) "Pickering FIA" means the Financial Impacts Agreement dated November 26, 2015
entered into by the City, and the owners of other development land in the Seaton
-6 -
Community for the purpose of confirming arrangements pertaining to the financing and
construction of certain infrastructure and other related matters affecting the development
of lands in Seaton.
(111) "Private Landowner" has the meaning ascribed to such term in the Seaton CSA.
(mmm) "Private Landowner Equivalency Payment" has the meaning ascribed to it in Section
16.06.
(nnn) "Property" means, collectively, all of the right, title and interest of the Vendor in and to
the Lands and the Buildings.
(000) "Property Documents" means the documents in OILC's current possession and related to
the Property, as set out in Schedule C, and shall include, but shall not be limited to:
(ppp)
(qqq)
(rrr)
(A) executed copies of any assignable service contracts, operating agreements
and management agreements;
(B) copies of assignable guarantees and warranties of materials, workmanship,
labour and materials relating to the Property that are still in effect;
(C) copies of the Environmental Reports, heritage reports, archaeological
reports or any other report relating to the physical, geotechnical or
environmental condition of the Property;
(D) a copy of the Lease;
(E) copies of all Permitted Encumbrances which are not registered against title
to the Property; and
(F) any plan of survey of the boundaries of the Property.
"Provincial Successor" has the meaning ascribed to such term in the Seaton CSA.
"Purchase Price" means the total amount determined by Section 2.02 that shall be paid by
the Purchaser to the Vendor for the Property, exclusive of HST and subject to the
Adjustments.
"Purchaser's Reports" has the meaning ascribed to it in Section 5.06.
(sss) "Region" means the Regional Municipality of Durham.
(ttt) "Regional Infrastructure" has the meaning ascribed to it in the Seaton CSA.
(uuu) "Requisition Date" has the meaning ascribed to it in Section 14.01.
(vvv) "Sale Approval" means the necessary internal governmental approvals required for the
Transaction including, but not limited to, the approval of the Lieutenant Governor -in -
Council pursuant to Section 9 of the Ministry of Infrastructure Act, 2011 S.O. 2011, C. 9,
Sched. 27.
(www) "Sale Approval Date" means the date that the Sale Approval was granted.
-7-
(xxx) "Seaton Community" means the developable land as determined by the Central Pickering
Development Plan, as may be further refined, and as determined by the Seaton CSA.
(yyy)
"Seaton CSA" means the Amended and Restated Cost Sharing Agreement dated
November 26, 2015 between the Vendor and other owners of development land in the
Seaton Community to provide for the sharing of the costs of development in the Seaton
Community.
(zzz) "Seaton -Durham CSA" means an agreement dated November 26, 2015 between the
Vendor, the Private Landowners and the Durham Owners to provide for the recovery of
certain costs of construction of Regional Infrastructure to be incurred by the Vendor and
the Private Landowners pursuant to the Phase 1 RFEA from the Durham Owners.
(aaaa) "Seaton Trustee" means the trustee as provided for in the Seaton CSA, as it is from time
to time. As of the Execution Date, the Seaton Trustee is North Pickering Community
Management Inc.
(bbbb) "Servicing Costs" has the meaning ascribed to it in Section 16.07.
(cccc) "Subsequent Phase" means development of land in the Seaton Community, the
development of which is not covered by the Phase 1 RFEA, and for which no allocation of
sewer or water capacity has currently be granted by any Authority.
(dddd) "SWP Lands" means part of those lands described in Schedule A-1, and shown shaded
in and referenced as "Stormwater Pond" on the sketch plan attached hereto as
Schedule A-2. [NTD — to be updated upon receipt of final mapping]
(eeee) "Table Lands" means part of those lands described in Schedule A-1, and shown shaded in
on the sketch plan attached hereto as Schedule A-2, excluding, for greater certainty,
the SWP Lands. [NTD — to be updated upon receipt of final mapping]
(ffff) "Transaction" means, collectively, the purchase and sale of the Property provided for in
this Agreement and all other matters contemplated in this Agreement.
(gggg) "Vendor" means Her Majesty the Queen in right of Ontario as represented by the Minister
of Government and Consumer Services and includes, for the purpose of any exculpatory
clause and indemnity included in this Agreement in favour of the Vendor, OILC, any
ministries, agencies, representatives, servants, employees, agents, invitees, officers,
directors, contractors and licensees of Her Majesty the Queen in right of Ontario and OILC,
and their brokers, service provider(s) and any other entity over whom the Vendor or OILC
may reasonably be expected to exercise control.
SECTION 2
AGREEMENT OF PURCHASE AND SALE
2.01 The Vendor agrees to sell, transfer and assign to the Purchaser all of the right, title and interest of
the Vendor in the Property and the Purchaser agrees to purchase, acquire and assume the Property
from the Vendor for the Purchase Price which shall be paid by the Purchaser to the Vendor for the
Property, exclusive of HST and subject to the Adjustments on the Closing Date.
8-
2.02 The Purchase Price shall be calculated by multiplying the area of the Lands in acres by a per acre
price of:
(a) SEVENTY-NINE THOUSAND DOLLARS ($79,000.00) per acre with respect to the
SWP Lands; plus
(b) ONE HUNDRED AND FIFTY-EIGHT THOUSAND DOLLARS ($158,000.00) per
acre with respect to the Table Lands.
It is estimated that the area of the Table Lands is approximately 7.11 acres more or less and the
area of the SWP Lands is approximately 5.59 acres, which would result in a Purchase Price of ONE
MILLION FIVE HUNDRED AND SIXTY-FOUR THOUSAND NINE HUNDRED AND
NINETY DOLLARS ($1,564,990.00). Prior to Closing the area of the Lands shall be conclusively
determined by the reference plan to be prepared in accordance with Section 13.01 hereof.
2.03 The Purchaser shall NOT be entitled to direct title of the Property to any other person or entity at
Closing.
SECTION 3
DEPOSIT / PAYMENT OF PURCHASE PRICE
3.01 The Purchaser will pay to Vendor's solicitor in trust, by certified cheque or wire transfer:
(a) Upon the submission of this offer to purchase, the amount of $78,249.50, being equal to
five percent (5%) of the estimated Purchase Price, as estimated at Section 2.02 hereof, as
a deposit to be credited towards the Purchase Price on the Closing Date; and
(b) Within two Business Days of the Execution Date a further amount of $78,249.50, being
equal to five percent (5%) of the estimated Purchase Price, as estimated at Section 2.02
hereof, as a further deposit to be credited towards the Purchase Price on the Closing Date
(collectively, the "Deposit").
3.02 The parties authorize OILC to invest the Deposit with a Canadian bank as identified in Schedule I
of the Bank Act, R.S., 1991, c. B.46 (Canada) in a term or certificate of deposit (such investment to
be available to OILC through its trust account bank and which investment allows liquidation of the
investment as necessary for the anticipated Closing Date or earlier termination of this Agreement
as herein provided) if OILC determines, acting reasonably, that anticipated interest to be eamed
will justify any related expenses, considering the rate of interest to be earned and the anticipated
time the Deposit will be held before Closing. Any and all interest earned thereon shall accrue to
the benefit of and, subject to Sections 3.03 and 5.03, be paid to the Purchaser forthwith following
the Closing Date or earlier termination of this Agreement.
3.03 In the event that this Agreement is terminated due to a specific default by the Purchaser, then the
Deposit, together with all interest accrued thereon, shall be forfeited to the Vendor as liquidated
damages.
3.04 If the Transaction is completed, the Deposit shall be credited against the Purchase Price due on
Closing and all interest accrued thereon shall be paid to the Purchaser or as it may direct forthwith
following Closing.
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3.05 On Closing the Purchase Price shall be paid and satisfied as follows:
(a) by release of the Deposit to the Vendor; and
(b) the balance of the Purchase Price, as adjusted pursuant to this Agreement shall be paid on
the Closing Date by the Purchaser to OILC in trust by way of wire transfer, such payment
being deemed to have been made when OILC's financial institution confirms receipt of
such wire transfer.
3.06 In addition to the Purchase Price, at Closing the Purchaser shall pay, or cause to be paid, all
Development Agreement Payments to the Vendor, to the applicable Authority, or to the applicable
trustee under a Development Agreement, as applicable.
3.07 The Purchaser acknowledges that at Closing it will be required to provide, or cause to be provided,
Development Agreement Security to the appropriate Authority pursuant to one or more of the
Development Agreements.
3.08 The Transaction shall be completed on the Closing Date at the offices of the Vendor's solicitors.
SECTION 4
HARMONIZED SALES TAX
4.01 The Purchase Price does not include the Harmonized Sales Tax ("HST") payable by the Purchaser
in respect of the purchase of the Property pursuant to the Excise Tax Act, R.S.C. 1985, c. E.15
(Canada) (the "Act"). Subject to Section 4.02, the Purchaser agrees to pay to the Vendor, on the
Closing Date, as a condition of completion of this Transaction by wire transfer, certified cheque or
bank draft, all HST payable as a result of this Transaction in accordance with the Act.
4.02 Notwithstanding Section 4.01 above, the Vendor shall not collect HST from the Purchaser in this
Transaction if, on Closing, the Purchaser is registered under the Act and in that event, the Purchaser
shall:
(a) file returns and remit such HST to the Receiver General for Canada when and to the extent
required by the Act; and
(b) provide to the Vendor, on the Closing Date, a certificate confirming that the Purchaser is
registered under the Act for the purposes of collecting and remitting HST, and confirming
its HST registration number under the Act, together with an indemnity in favour of the
Vendor for any and all HST, fines, penalties, actions, costs, losses, claims, damages or
expenses and/or interest which may become payable by, or assessed against, the Vendor as
a result of the Vendor's failure to collect HST from the Purchaser on the Closing Date,
such certificate and indemnity to be in a form satisfactory to the Vendor's solicitor, acting
reasonably,
failing which the Purchaser shall pay to the Vendor on Closing the HST payable by the Purchaser
with respect to this Transaction and the Vendor shall remit such HST to the appropriate Authority
in accordance with the Act.
4.03 The Purchaser's obligations under this Section 4 shall survive and not merge on Closing.
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SECTION 5
"AS IS WHERE IS",
PURCHASER'S INSPECTION PERIOD, AND ENVIRONMENTAL INDEMNITY
5.01 The Purchaser acknowledges and agrees that:
(a) in entering into this Agreement, the Purchaser has relied and will continue to rely entirely
and solely upon its own inspections and investigations with respect to the Property,
including, without limitation, the physical and environmental condition of the Property and
a review of any documentation respecting the Property, and the Purchaser acknowledges it
is not relying on any information furnished by the Vendor or any other person on behalf
of, or at the direction of, the Vendor in connection therewith;
(b) the Purchaser is purchasing and shall accept, assume and take title to the Property and any
improvements thereon in an "As Is, Where Is" condition. The term "As Is, Where Is"
means in its condition or state on the Offer Date, without any agreement, representation or
warranty of any kind whatsoever, either express or implied on the part of the Vendor, as to
the condition of the soil, the subsoil, the ground and surface water or any other
environmental matters, the condition of the Lands, suitability for development, physical
characteristics, profitability, the condition of the Buildings, or any other matter respecting
the Property whatsoever, including without limitation, compliance with Environmental
Law, the existence of any Hazardous Substance or Contaminant, the use to which the
Property may be put and its zoning, the development potential of the Property or the ability
of the Purchaser to obtain approvals with respect to the Purchaser's intended development
of the Property, or as to the accuracy, currency or completeness of any information or
documentation supplied to the Purchaser in connection with the Property; and
(c) the Vendor shall have no obligations or responsibility to the Purchaser after Closing with
respect to any matter relating to the Property or the condition thereof. The provisions of
this Section 5.01 shall survive and not merge on Closing.
Without limiting the foregoing, the Purchaser accepts, assumes and takes title to the Property
subject to the land uses currently permitted on the Property by the applicable Land Use Regulations
and the Purchaser shall not make and is not authorized by the Vendor to make, prior to completion
of this Transaction, any applications to the Municipality or any governmental Authority for changes
or variances to the uses currently permitted on the Property, including without limitation changes
or variances to official plans and/or zoning by-laws applicable to the Property.
5.02 During the period of time commencing on the Execution Date and expiring on the expiration of the
Inspection Period, the Purchaser may carry out whatever investigations it considers necessary to
satisfy itself with respect to the condition of the soil, the subsoil, the ground and surface water or
any other environmental matter relating to the Property, including, without limitation, compliance
with Environmental Law, the existence of any Hazardous Substance or Contaminant.
If as a result of such investigations the Purchaser has or acquires evidence within the Inspection
Period that there exists a condition of non-compliance with Environmental Law or the presence of
a Hazardous Substance or Contaminant on, in, at, under, emanating from or onto the Property that
would be in excess of the guidelines for any of the permitted uses under the current zoning by-law
affecting the Property, the risk or presence of which the Purchaser is not prepared to assume, then
the Purchaser shall, by written notice, provide such evidence to the Vendor within the Inspection
Period by way of a report of a recognized and qualified environmental consultant who shall specify
in detail the nature of the non-compliance, Hazardous Substance or Contaminant and quantify the
remediation cost (collectively, an "Environmental Objection"). Upon receipt of an
Environmental Objection, the Vendor may, at its option and in its sole discretion:
(a) undertake, as the Purchaser's sole and exclusive remedy, to take such actions,
complete such work and/or implement such measures, in the Vendor's sole
discretion as to means and methods, as may be necessary to correct the matter of
non-compliance prior to the Closing Date or as soon as reasonably possible after
the Closing Date if compliance prior to Closing is not, in the Vendor's opinion,
reasonably possible;
(b) credit the Purchaser, as the Purchaser's sole and exclusive remedy, the quantified
cost of correcting the matter of non-compliance as an adjustment to the Purchase
Price, in which event the Purchaser shall, on Closing, expressly assume the
obligation and undertake to correct the matter of non-compliance as soon as
possible after the Closing Date and shall indemnify and save harmless the Vendor
from and against any and all claims, demands, costs, damages, expenses and
liabilities whatsoever arising from the Purchaser's failure to remediate the
Hazardous Substance, Contaminant and/or matter of non-compliance;
(c) terminate this Agreement in which event the Deposit shall, subject to Section 5.03,
be returned to the Purchaser with accrued interest, and without further liability to
the Vendor; or
(d) refuse to do either (a), (b), or (c) above in which event the Purchaser shall have the
option of either: (i) completing the Transaction without adjustment to the Purchase
Price; or (ii) terminating this Agreement in which event the Deposit shall, subject
to Section 5.03, be returned to the Purchaser with accrued interest, and without
further liability to the Vendor.
The Vendor shall have ten (10) Business Days from receipt of the Environmental Objection to
make its election under (a), (b), (c) or (d) above by notice in writing to the Purchaser and in the
event the Vendor fails to make an election within said ten (10) Business Day period, the Vendor
will be deemed to have elected option (d) above. The Purchaser shall have ten (10) days from the
date of the Vendor's election or deemed election under (d) above to elect, by notice in writing to
the Vendor, to terminate or complete as per paragraph (d) above and in the event the Purchaser fails
to make an election within said ten (10) day period the Purchaser shall be deemed to have elected
to complete the Transaction without adjustment to the Purchase Price.
5.03 During the Inspection Period, the Vendor will permit the Purchaser together with its employees,
agents or consultants access to the Property, at reasonable times and upon a minimum of two (2)
Business Days' prior written notice to the Vendor, to carry out, at the Purchaser's sole expense and
risk, such investigations, tests and inspections as the Purchaser deems necessary, provided that the
Purchaser takes all reasonable care in the conduct of such investigations, tests and inspections. All
tests, investigations and inspections conducted by the Purchaser or its representatives shall be
commenced and completed prior to the expiration of the Inspection Period and shall be carried out
as expeditiously as possible and at times and in such manner so as to not interfere with any tenants,
occupants or licensees on the Property or the operation and maintenance of the Property. The
Purchaser covenants and agrees to promptly repair or pay the cost of repair of any damage
occasioned during or resulting from such investigations, tests and inspections of the Property
conducted by the Purchaser or its representatives and to return the Property to substantially the
- 12 -
same condition it was in prior to such investigations, tests and inspections. The Vendor assumes no
responsibility for and the Purchaser shall indemnify and save harmless the Vendor from and against
any and all claims, demands, costs, damages, expenses and liabilities whatsoever arising from the
Purchaser's and/or its agents' or consultants' presence on the Property or the Purchaser's and/or its
agents' or consultants' activities on or in connection with the Property. The Vendor shall be entitled
to deduct from the Deposit paid by the Purchaser hereunder the amount of any losses, costs, claims,
third party actions, damages and expenses which the Vendor may suffer as a result of a breach of
this Section 5.03. The obligations in this Section 5.03 shall survive termination of this Agreement
for a period of two (2) years and shall not merge on Closing.
5.04 Intentionally Deleted.
5.05 The Vendor agrees to provide to the Purchaser, within five (5) days of the Execution Date, the
Property Documents listed in Schedule C. The Purchaser acknowledges and agrees that: (i) the
Property Documents are being provided to the Purchaser for informational purposes only and the
Vendor makes no representations or warranties whatsoever with respect to the content,
completeness or accuracy of the Property Documents, or the environmental or any other condition
of the Property; (ii) the Vendor shall not be liable to the Purchaser, its agents, employees or lending
institution in any way for any error, omission or inaccuracy contained in any Property Document;
and (iii) as of the Closing Date, the Purchaser shall become solely liable for all conditions and
Hazardous Substances and/or Contaminants existing at the Property, whether known or unknown
by the Purchaser, and whether or not such conditions or Hazardous Substances and/or
Contaminants are disclosed in the Property Documents or have been discovered by Purchaser in
the course of its due diligence or other investigations or inspections of the Property.
5.06 The Purchaser covenants and agrees that the Property Documents provided by the Vendor and any
and all third party reports, findings, recommendations, opinions and information resulting from the
Purchaser's due diligence ("Purchaser's Reports") and the information contained therein shall be
held in accordance with the confidentiality provisions set out in section 23. If this Agreement is
terminated for any reason, the Purchaser will promptly return to the Vendor all Purchaser's Reports
and Property Documents without keeping copies. The Purchaser shall deliver to the Vendor
forthwith following receipt, copies of any and all Purchaser's Reports the Purchaser commissions
or obtains during the course of its investigations.
5.07 In the absence of the Purchaser delivering: (i) an Environmental Objection; and (ii) a notice to
terminate the Agreement under Section 5.02(d), the Purchaser shall be conclusively deemed to
accept the Property in its As Is, Where Is condition, having waived all requisitions concerning any
matters relating to the Property, save for any valid requisition on title made prior to the expiry of
the Requisition Date, and the Purchaser shall accept full responsibility for all conditions related to
the Property, and the Purchaser shall comply, at its sole cost, with all orders relating to the condition
of the Property issued by any competent government Authority, court or administrative tribunal,
including any order issued against the Vendor including without limitation, any non-compliance
with Environmental Law or relating to the existence of any Hazardous Substance or Contaminant.
5.08 As an inducement to, and as further consideration for, the Vendor agreeing to sell the Property to
the Purchaser upon the terms and conditions set forth in this Agreement, the Purchaser covenants
and agrees that, effective as of the Closing Date, the Purchaser shall forever release and covenant
not to sue the Vendor and its affiliates, subsidiaries, related legal entities, employees, directors,
officers, appointees and agents with respect to anything arising out of the environmental or any
other condition of the Property or the presence of Hazardous Substances or Contaminants in, on,
under, or emanating from or onto the Property, regardless of whether such environmental
13
conditions or the presence of Hazardous Substances or Contaminants is known or unknown by the
Purchaser and regardless of whether such condition is set forth in the Property Documents, the
Purchaser's Reports or any other report, document or information discovered during the course of
the Purchaser's due diligence or otherwise. The foregoing release and covenant not to sue shall
apply to all claims at law or in equity, including, but not limited to, claims or causes of action for
personal injury or death, property damage, statutory claims under Environmental Laws and claims
for contribution.
5.09 From and after the Closing Date, the Purchaser shall be responsible for, and hereby agrees to
indemnify, defend and save harmless the Vendor and its employees, directors, officers, appointees
and agents from, any and all costs (including legal, consultant and witness costs and fees), claims,
demands, actions, prosecutions, administrative hearings, fines, losses, damages, penalties,
judgments, awards (including awards of costs) and liabilities (including sums paid in settlement of
claims), that may arise as a result of the condition of the Property, the presence of Hazardous
Substances or Contaminants in, on or under the Lands, the Buildings or any structure or paved
surface, or in any environmental medium (including, but not limited to, the soil, groundwater, or
soil vapour on or under, or emanating from the Property), any order issued by any Authority in
connection with the condition of the Property, or any loss, damage, or injury caused either directly
or indirectly as a result of the condition of the Property including, without limitation, non-
compliance with Environmental Law or the existence of any Hazardous Substance or Contaminant.
Without limiting the generality of the foregoing, this indemnification shall specifically cover costs
incurred, from and after the Closing Date, in connection with any claim for personal injury and/or
death, property damage, investigation of site conditions and/or any clean-up, remedial, removal,
monitoring or restoration work required by any federal, provincial, or local government agency or
political subdivision because of the presence of Hazardous Substances, in, on or under the Lands,
the Buildings or any environmental medium, structure or paved surface or emanating therefrom.
5.10 The parties agree to execute and exchange at the time of Closing such further documentation as
either party reasonably requests, including, but not limited to, an agreement whereby the Purchaser
shall reaffirm the release, covenant not to sue and indemnifications regarding the condition of the
Property and environmental matters set forth in this Section 5 in the form attached hereto as
schedule F. Notwithstanding the foregoing, the release, covenant not to sue and indemnifications
set forth in this Section 5 shall become effective and enforceable automatically upon the
registration of the Transfer/Deed of Land in respect of the Property in favour of the Purchaser, and
Purchaser shall be bound by them, regardless of whether or not Purchaser executes any separate
instrument at the time of Closing.
5.11 Unless otherwise expressly set out herein, this Section 5 shall not merge but shall survive the
Closing Date and shall be a continuing obligation of the Purchaser.
SECTION 6
CLOSING CONDITIONS
6.01 The obligation of the Vendor to complete the Transaction is conditional upon fulfillment of each
of the following conditions on or before the Closing Date or any earlier date or time specified in
this Agreement:
(a) the Vendor shall have obtained the Sale Approval pursuant to Section 7 of this Agreement;
- 14 -
(b) all of the terms, covenants and conditions of this Agreement to be complied with or
performed by the Purchaser shall have been complied with or performed in all material
respects at the times contemplated in this Agreement;
(c) the representations and warranties of the Purchaser set forth in this Agreement shall be true
and accurate in all material respects as if made as of the Closing;
(d) the Purchaser shall have executed all documents required to assume the obligations of the
Vendor pursuant to the Development Agreements, including all required Assignment and
Assumption Agreements; and
(e) all documents and deliveries required to be executed and/or delivered by the Purchaser
shall have been executed and delivered to the Vendor in accordance to this Agreement.
6.02 The conditions set forth in Section 6.01 are for the sole benefit of the Vendor and may be waived
in whole or in part by the Vendor, or by its solicitors on its behalf, in the sole and absolute discretion
of the Vendor by written notice to the Purchaser. The conditions are conditions precedent to the
obligation of the Vendor to complete the herein Transaction on the Closing Date.
6.03 If a condition set forth in Section 6.01 is not fulfilled within the applicable time period, if any, and
the Vendor fails to notify the Purchaser or the Purchaser's solicitors that such condition has been
waived or the time period for compliance has been extended within the applicable time period
allowed, if any (save and except for any condition which is to be satisfied on the Closing in
connection with which it is hereby agreed that upon successful completion of the Transaction, such
condition shall be deemed to have been satisfied), at the Vendor's sole option, this Agreement shall
be null and void, notwithstanding any intermediate act or negotiations, and (i) in the event the
Agreement is terminated as a result of the non -fulfilment of the condition set forth in Section
6.01(a), neither the Vendor nor the Purchaser shall, subject to Section 5.03, be liable to the other
for any loss, costs or damages, and the Deposit shall, subject to Section 5.03, be returned to the
Purchaser with interest and without deduction, and (ii) in the event the Agreement is terminated as
a result of the non -fulfilment of any of the conditions set forth in Section 6.01(b), 6.01(c) or 6.01(d),
the Deposit shall be forfeited to the Vendor as liquidated damages and without derogating from any
claims or causes of action the Vendor may have pursuant to this Agreement and at law against the
Purchaser arising from the Purchaser's default therein.
6.04 The obligation of the Purchaser to complete the Transaction is conditional upon fulfillment of the
following conditions on or before the expiration of the Inspection Period:
(a) the City has obtained the City Sale Approval, which approval may be provided in the sole
and unfettered discretion of the City and which the Vendor acknowledges may be
arbitrarily and unreasonably withheld.
6.05 The condition set forth in Section 6.04 is for the sole benefit of the Purchaser and may be waived
in whole or in part by the Purchaser, or by its solicitors on its behalf, in the sole and absolute
discretion of the Purchaser by written notice to the Vendor. The condition is a condition precedent
to the obligation of the Purchaser to complete the herein Transaction on the Closing Date.
6.06 If the condition set forth in Section 6.04 is not fulfilled within the applicable time period and/or the
Purchaser fails to notify the Vendor or the Vendor's solicitors that such condition has been waived,
this Agreement shall be null and void, and the Deposit shall, subject to Section 5.03, be returned
to the Purchaser with interest and without deduction.
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SECTION 7
SALE APPROVAL
7.01 The obligation of the Vendor to complete the Transaction is conditional upon fulfillment of the
following condition: within ninety (90) days from the Offer Date, the Vendor shall have obtained
the Sale Approval, which approval the Purchaser acknowledges may be arbitrarily and
unreasonably withheld. The Vendor shall notify the Purchaser if and when such approval is
obtained, and the date of such notification if obtained shall be the date of commencement of the
Inspection Period.
7.02 The Purchaser agrees that should the Vendor be unable to satisfy the condition set out in Section
7.01 within the said ninety (90) day period, then the Vendor may, at its option and in its sole
discretion, extend this time period for an additional sixty (60) days by notice in writing to the
Purchaser within the initial ninety (90) day period.
7.03 The Purchaser acknowledges that any Sale Approval that the Vendor obtains with respect to the
Property may be subject to the limitations stated therein, including but not limited to a limitation
that such approval shall be valid for a specified period of time from the date of such Sale Approval
(the "Approval Term"), in which event such Sale Approval shall cease to be valid on the date
upon which the Approval Term concludes (the "Expiry Date"), or on such date that such other
limitation(s), if any, is/are not met and satisfied. In the event that the Vendor shall have obtained a
Sale Approval for the Property in satisfaction of the condition set out in Section 7.01, and in the
event that the completion of the Transaction has not occurred on or before the Expiry Date set out
in such Sale Approval or such date that such other limitation(s), if any, is/are not met and satisfied,
notwithstanding any waiver of the condition set out in Section 7.01, this Agreement shall then be
null and void, the Deposit and any interest accrued thereon shall, subject to Section 5.03, be
returned to the Purchaser and neither the Vendor nor the Purchaser shall, subject to Section 5.03,
be liable to the other for any loss, costs or damages.
SECTION 8
CLASS EA REQUIREMENTS / ABORIGINAL CLAIMS
8.01 The obligation of the Vendor to complete the Transaction is conditional upon fulfillment of the
following condition on or before the Closing Date: the Vendor shall have completed the Class EA
for the Property and the Transaction (collectively, the "Class EA Requirements"). For purposes
of this condition, the Class EA Requirements shall, without limitation, include and be deemed to
include the following specific requirements:
(a) the requirements of the Environmental Assessment Act, R.S.O. 1990, c.E. 18, as approved,
amended, or renewed from time to time, as they apply to the Property and the Transaction
(the "Environmental Requirements"); and
(b) the requirements of the Standards & Guidelines for Conservation of Provincial Heritage
Properties issued by the Ministry of Tourism, Culture and Sport pursuant to Section 25.2
of the Ontario Heritage Act, R.S.O. 1990, c.O.18, as approved, amended, or renewed from
time to time, as they apply to the Property and the Transaction (the "Heritage
Requirements").
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8.02 Notwithstanding any other provision of this Agreement, the completion of the Transaction is
subject to continuing compliance to the Closing Date with all Class EA Requirements. In the event
that prior to the Closing Date:
(a) any governing Authority makes or issues, or the Vendor receives any notice or
communication from any governing Authority that it is considering whether to make or
issue, any order or directive pursuant to the Class EA Requirements that necessitates that
the Vendor, in addition to the actions and measures taken aforesaid, take other or different
actions or measures to comply with the Class EA Requirements (including, without
limitation, an order or directive requiring the Vendor to comply with Part II of the
Environmental Assessment Act);
(b) a written request has been made to the Minister of the Environment, of which the Vendor
has notice, that other or different measures be taken to comply with the Class EA
Requirements;
then the Vendor may, at its option and in its sole discretion, extend the Closing Date for at least an
additional thirty (30) days (the "Initial Class EA Extension Period") by notice in writing to the
Purchaser during which time the Vendor shall:
(c) use reasonable efforts to determine whether the request in subsection (b) above has been
satisfied or has been refused; and
(d) at its option and in its sole discretion, either:
(i)
comply with such order or directive (as the same may be modified or withdrawn)
at its own expense, in which event the Vendor may extend the Closing Date up to
(but no more than) three times, for a further period of thirty (30) days each (for a
maximum of ninety (90) days in the aggregate) (collectively, the "Further Class
EA Extension Period"); or
(ii) within the Initial Class EA Extension Period or at any time within the Further Class
EA Extension Period, terminate this Agreement by written notice to the Purchaser,
in which case this Agreement shall be null and void and of no further force and
effect and the Deposit and any interest accrued thereon shall, subject to Section
5.03, be returned to the Purchaser and neither party shall be further liable to the
other pursuant to this Agreement other than the Purchaser's obligations pursuant
to Section 5.03 of this Agreement.
8.03 Notwithstanding any other provision of this Agreement, if at any time prior to the Closing Date the
Vendor receives notification or otherwise becomes aware of any claim or potential claim
whatsoever for an interest in respect of the Property, by any First Nation or other aboriginal group
or individual, in relation to any constitutional right, treaty right, land claim, surrender agreement
or consultation right, including, without limitation, an interest in the title to the Property, a right to
the use of the whole or any part of the Property, a restriction on the use of the Property or any part
thereof for any purpose, a restriction on access to the Property or any part thereof, a claim for
compensation, arising out of any interest or claimed interest in the Property or a right of
consultation in relation to the Property, then the Vendor may at its option and in its sole and
unfettered discretion extend the Closing Date for at least an additional thirty (30) days (the "Initial
Extension Period") by notice in writing to Purchaser during which time the Vendor shall:
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(a) determine in its sole and unfettered discretion if such claim, potential claim or interest is
capable of being satisfied or whether appropriate releases can be obtained from all
interested parties to enable the Vendor to complete the sale of the Property to the Purchaser
by the Closing Date free and clear of any such claim, potential claim or interest;
(b) enter into arrangements which enable the Vendor to complete the sale of the Property in
accordance with Section 8.03(a), for which purpose it may extend the Closing Date up to
(but no more than) three times, for a further thirty (30) days each (for a maximum of ninety
(90) days in the aggregate) (collectively, the "Further Extension Period"); or
(c) within the Initial Extension Period or at any time within the Further Extension Period, have
the right to terminate this Agreement by written notice to the Purchaser in which case the
Agreement shall be null and void and of no further force and effect and neither party shall
be further liable to the other pursuant to this Agreement other than the Purchaser's
obligations pursuant to Section 5.03 of this Agreement.
8.04 If at any time prior to Closing, the Vendor receives notification or otherwise becomes aware of any
requirements imposed by an Authority, including without limitation any additional Heritage
Requirements, not otherwise contemplated in this Section 8 and with which the Vendor must
comply as a condition of completing the Transaction, then the Vendor may at its option and in its
sole and unfettered discretion extend the Closing Date up to three (3) times for a period of thirty
(30) days each time (maximum ninety (90) days) by notice in writing to Purchaser during which
time the Vendor shall:
(a) determine in its sole and unfettered discretion if such requirement can be satisfied so as to
enable the Vendor to complete the sale of the Property to the Purchaser by the Closing
Date; or
(b) have the right, with or without a determination pursuant to subsection (a) above, to
terminate this Agreement by written notice to the Purchaser in which case the Agreement
shall be null and void and of no further force and effect and the Deposit plus any interest
accrued thereon shall, subject to Section 5.03, be returned to the Purchaser and neither
party shall be further liable to the other pursuant to this Agreement other than the
Purchasers obligations pursuant to Section 5.03 of this Agreement.
SECTION 9
RISK
9.01 Until completion of this Agreement on the Closing Date, the Property shall be and remain at the
risk of the Vendor, except as otherwise provided in Section 5. The Purchaser acknowledges that
the Vendor, in respect of damage to the Property, is self-insured. In the event of damage to the
Property on or before the Closing Date (other than damage occasioned during or resulting from
the Purchaser's and/or its agents, consultants or representatives entries and/or activities on or to the
Property, in which event Section 5.03 shall govern) (the "Pre -Closing Damage"), the Vendor may
elect (i) to forthwith repair the Property to the same state and condition as it was in at the Offer
Date in which event the Purchaser will complete the Transaction without an abatement in the
Purchase Price; or (ii) to reduce the Purchase Price by an amount equal to the cost required to
complete the repair as estimated by an independent qualified architect or engineer jointly retained
by the Vendor and the Purchaser, acting reasonably and at arm's length in which event the
Purchaser will complete the Transaction and accept a price reduction equal to such cost, or (iii) to
terminate this Agreement in which case the Deposit shall, subject to Section 5.03, be immediately
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returned to the Purchaser, with interest and without deduction, and neither party shall, subject to
Section 5.03, have any further rights or obligations hereunder.
9.02 From and including the Closing Date, the Property shall be entirely at the risk of the Purchaser and
the Purchaser shall accept and assume any and all responsibilities and liabilities arising out of or in
any way connected with the Property whether they arose before, on or after the Closing Date and,
without being limited by the foregoing, any state, nature, quality or condition in, on, under or near
the Property existing as of the Closing Date, whenever and however arising, whether known or
unknown and whether environmental or otherwise, and whether such responsibilities and liabilities
are imposed by law, equity or any governing Authority.
SECTION 10
VENDOR'S WARRANTIES, REPRESENTATIONS AND COVENANTS
10.01 The Vendor represents and warrants to the Purchaser that the Vendor is not a non-resident of
Canada within the meaning and intended purpose of Section 116 of the Income Tax Act, R.S.C.
1985, c.1 (5th Supp.).
10.02 Any information provided by the Vendor or its agents, including the Property Documents, and any
comments made by the Vendor, its employees, officers, directors, appointees, agents or consultants
are for the assistance of the Purchaser in allowing it to make its own inquiries. The Vendor makes
no representations or warranties as to, and takes no responsibility for, the accuracy or completeness
of the Property Documents or any other information it has provided to the Purchaser.
SECTION 11
PURCHASER'S WARRANTIES, REPRESENTATIONS AND COVENANTS
11.01 The Purchaser represents and warrants to the Vendor that the Purchaser does not have a conflict of
interest with the Vendor or OILC or with any of their respective directors, officers, appointees,
employees or agents. The Purchaser agrees to provide a Statutory Declaration in the form attached
hereto as Schedule D at the time of execution by the Purchaser of this Agreement. The Purchaser
acknowledges that in the event that the information upon which the Statutory Declaration was
provided has changed, the Purchaser shall inform the Vendor of such change up to and including
the Closing Date.
11.02 The Purchaser represents and warrants to the Vendor that the execution, delivery and performance
by the Purchaser of this Agreement, and each agreement to be executed and delivered pursuant
hereto at Closing, to which the Purchaser is a party are within the Purchaser's legal power and
jurisdiction and, subject to the Purchaser obtaining the City Sale Approval in accordance with the
condition set forth in Section 6.04, will have been duly authorized and approved by all necessary
action on the part of the Purchaser.
11.03 The Purchaser represents and warrants to the Vendor that this Agreement has been, and, subject to
the Purchaser obtaining the City Sale Approval in accordance with the condition set forth in Section
6.04, each agreement to be executed and delivered by the Purchaser pursuant to this Agreement,
will be duly and validly executed and delivered by the Purchaser, and this Agreement constitutes,
and each agreement to be executed and delivered pursuant hereto at Closing, when so executed and
delivered will constitute, the legal, valid and binding obligation of the Purchaser, enforceable
against the Purchaser in accordance with their respective terms.
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11.04 The Vendor shall deliver and the Purchaser shall accept possession of the Property on the Closing
Date in an As Is Where Is condition, subject to: (i) the Lease(s); (ii) the Development Agreements;
and (iii) the Permitted Encumbrances.
11.05 As of the Closing Date, the Purchaser shall assume and be responsible as owner for the management
and administration of the Property and the Vendor shall have no further responsibility whatsoever
therefor.
11.06 Without limiting the generality of the foregoing, the Purchaser shall comply with the terms of the
Permitted Encumbrances, any agreement entered into by the Vendor with any Authority relating to
the Property, all other agreements relating to public utilities and municipal services, the Land Use
Regulations, all relevant municipal by-laws and all registered restrictions. The Purchaser further
agrees and acknowledges that it shall be bound by any contractual obligations which the Vendor
may have entered into concerning the Property prior to the Closing Date.
SECTION 12
SEVERANCE
12.01 The Purchaser acknowledges that the Vendor will invoke "Crown Right" to sever property (i.e. the
ability of the Crown to divide land referenced under the subdivision control provisions of the
Planning Act) in connection with the Transaction.
SECTION 13
REFERENCE PLAN(S)
13.01 The parties acknowledge that the Property may not be conveyed until such time as a reference
plan(s) has been deposited with the Durham Land Registry Office. The Vendor agrees to prepare
and deposit in the Durham Land Registry Office, a reference plan(s) of survey of the Lands. The
Purchaser shall provide the Vendor with a draft reference plan for review prior to the deposit of
such reference plan. The Purchaser shall pay, as an adjustment on Closing, the cost of preparing
the above described reference plan(s) up to a maximum of $5,000.00. The Purchaser acknowledges
that the southern boundary of the Lands that abut the 407 ETR corridor shall be established using
the most current reference plans deposited by the Ministry of Transportation. The area of the Lands
shall be conclusively determined by the above described reference plan.
SECTION 14
TITLE
14.01 The Purchaser shall have until the day which is twenty (20) Business Days before the Closing Date
(the "Requisition Date") to investigate title to the Property at the Purchaser's expense. The
Purchaser agrees not to call for the production of any title deed, abstract, survey or other evidence
of title to the Lands except such as are in the possession of OILC or the Vendor.
14.02 On the Closing Date, the Purchaser shall accept title to the Property in an As Is Where Is condition
subject to the following:
(a) the Land Use Regulations;
(b) the Development Agreements and notices thereof;
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(c) the Lease(s);
(d) all Community Use Land obligation pursuant to the Seaton CSA; and
(e) the Permitted Encumbrances.
The Purchaser agrees to satisfy itself with respect to compliance with all such agreements,
easements, restrictions or covenants, encumbrances and regulations referred to herein and agrees
that the Vendor shall not be required to provide any evidence of compliance with same.
14.03 If, prior to the expiry of the Requisition Date, the Purchaser furnishes the Vendor in writing with a
valid objection to title which the Vendor is unwilling or unable to remove, remedy and satisfy and
which the Purchaser will not waive, this Agreement shall be terminated notwithstanding any
intermediate acts or negotiations with respect to such objection, the Deposit shall, subject to Section
5.03, be returned to the Purchaser with interest and without deduction and the Vendor shall not be
liable for any costs or damages suffered by the Purchaser arising out of such termination or
otherwise out of this Agreement.
14.04 The Vendor hereby consents to the relevant Municipality releasing to the Purchaser any information
in its records in connection with the Property and the Vendor agrees to execute and deliver such
necessary authorizations as the Purchaser may reasonably require in this regard but any such
authorization shall specifically prohibit the right of or a request for an inspection of the Property
by the Municipality or any other Authority.
SECTION 15
NO ASSIGNMENT ETC.
15.01 The Purchaser shall not assign or register this Agreement, or any assignment of this Agreement, or
any part of either, or register a caution in relation thereto, without, in each instance, obtaining the
prior written consent of the Vendor, which consent may be arbitrarily and unreasonably withheld.
15.02 If the Vendor consents to an assignment of this Agreement to a third party (the "Assignee"), the
Purchaser shall cause the Assignee and the Purchaser, to covenant in writing in favour of the
Vendor to be jointly and severally bound by and to jointly and severally perform their respective
obligations of this Agreement. The Purchaser shall not be released from its liabilities and
obligations hereunder in the event of an assignment to an Assignee.
15.03 In the event of any assignment of this Agreement to an Assignee, such Assignee shall provide a
similar representation, warranty and Statutory Declaration as required of the Purchaser in Section
11.01
SECTION 16
DEVELOPMENT AGREEMENTS
16.01 The Purchaser agrees that at Closing it shall, as part of its acquisition of the Property, assume the
obligations of the Vendor regarding the Property pursuant to the Development Agreements, and it
covenants to make all payments required by such Development Agreements and provide any
Development Agreement Security required pursuant to any such Development Agreement, whether
such security is to be lodged with an Authority or otherwise, upon the execution of any applicable
Assignment and Assumption Agreement with the intent that the Purchaser shall be treated equally
with the other Private Landowners, except as explicitly provided in the Development Agreements.
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16.02 The Purchaser acknowledges that the Development Agreements may have been registered against
title to the Property and further acknowledges that the development of the Property is subject to the
Development Agreements.
16.03 The Purchaser acknowledges and agrees that the Vendor has made payments and incurred expenses
which are subject to recovery by the Vendor through the issuance of Development Charge Credits
pursuant to the terms and conditions of the Phase 1 RFEA. The Purchaser agrees that at Closing,
and as a condition of Closing, that it shall reimburse the Vendor for all costs that the Vendor has
incurred which would be recoverable by the Vendor in the form of Development Charge Credits to
be issued pursuant to the Phase 1 RFEA in respect of the Lands. The Purchaser acknowledges and
agrees that the Seaton Trustee shall determine the amount Development Charge Credits entitlement
earned and attributable to the Lands based on the Developable Area Share of the Lands in the
Seaton Community, whether or not the Lands are within the Phase 1 Lands, and shall take into
account indexing as provided for in the Phase 1 RFEA. The payment from the Purchaser to the
Vendor pursuant to this section shall be referred to herein as the "DC Credit Recovery Payment".
16.04 The Purchaser acknowledges that the Pickering FIA creates obligations with regard to the funding
of certain infrastructure in Seaton under the jurisdiction of the City. The Purchaser covenants and
agrees that it will abide by the terms and conditions of the Pickering FIA, and will execute any
Assignment and Assumption Agreement as reasonably required by the Vendor or the City.
Furthermore, the Purchaser acknowledges that the infrastructure projects to be funded pursuant to
the Pickering FIA are Cost Shared Services under the Seaton CSA, and the costs of which are to be
cost shared pursuant to the terms of the Seaton CSA.
16.05 The Purchaser acknowledges that the Lands include Phase 1 RFEA Lands and, therefore, prior to
the issuance of a building permit with respect to the development of such lands, unless otherwise
provided for in a front ending agreement relating to Subsequent Phase development, the Purchaser
will have to pay, in addition to any Attribution Development Charges payable with respect to the
development of the Lands, the Attribution Prepayment applicable to the Property. The Phase 1
RFEA provides that Development Charge Credits earned by virtue of the payment of the
Attribution Prepayment are not able to be utilized to satisfy the Attributions Development Charges
payable upon the issuance of building permits for lands that are Phase 1 RFEA Lands, and further
such Development Charge Credits will be administered by the Seaton Trustee.
16.06 The Purchaser acknowledges that on Closing the Purchaser will be a Provincial Successor (as such
term is defined in the Seaton CSA). Furthermore, by virtue of being a Provincial Successor the
Purchaser acknowledges and agrees that at Closing it will have to make a payment to the Seaton
Trustee in an amount to be determined by the Seaton Trustee pursuant to the terms of the Seaton
CSA, which will bring the Purchaser into a position in which the Purchaser will have funded the
costs of Regional Infrastructure pursuant to the Phase 1 RFEA on the same basis as the other Private
Landowners within the Seaton Community, this payment to be referred to herein as the "Private
Landowner Equivalency Payment".
16.07 The Purchaser acknowledges and agrees that at Closing, it will make a payment to the Vendor in
an amount equal to the portion of the costs incurred by the Vendor for Cost Shared Services
applicable to the Lands up to the Closing Date as confirmed by the Seaton Trustee, unless otherwise
provided for herein, whether on a Developable Area Share or Drainage Area share or otherwise as
applicable (referred to herein as "Servicing Costs").
16.08 The Purchaser acknowledges that the Lands include Community Use Lands and that such
Community Use Lands are to be transferred to an Authority or the Seaton Trustee pursuant to the
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terms of the Seaton CSA. The Purchaser acknowledges and agrees that it will abide by the terms
of the Seaton CSA with regard to such Community Use Lands which requires that they be conveyed
to an Authority or the Seaton Trustee, and further that the Assignment and Assumption Agreement
with regard to the Seaton CSA will specifically provide for such transfer of the Community Use
Lands.
16.09 The Seaton -Durham CSA provides for the recovery of certain costs of the construction of Regional
Infrastructure that relate to the over -sizing of such services for which Development Charge Credits
are not available. The Purchaser acknowledges that the Vendor has not made and is not making
any representations or warranties that any such construction costs will be recovered from the
Durham Owners.
SECTION 17
PREPARATION OF TRANSFER/DEED DOCUMENTS AND FEES/COSTS
17.01 The Transfer/Deed of the Lands will be prepared by the Vendor, except for the Affidavit of
Residence and Value of the Consideration ("Land Transfer Tax Affidavit"), which will be
prepared by the Purchaser.
17.02 The Purchaser shall pay its own legal costs and registration costs. The Purchaser shall be
responsible for the payment of any applicable Land Transfer Tax and registration fees and any other
taxes and fees which may be payable in connection with the registration of the transfer deed of the
Property.
SECTION 18
TENDER
18.01 Any tender of money or documents pursuant to this Agreement may be made on the Vendor or the
Purchaser or their respective solicitors. Money must be tendered in Canadian funds by electronic
wire, bank draft or negotiable cheque certified by a Canadian chartered bank, trust company, or
credit union. The Vendor and the Purchaser acknowledge and agree that insofar as the tender of
any documents to be electronically registered is concerned, the tender of same will be deemed to
be effective and proper when the solicitor for the party tendering has completed all steps required
by Teraview in order to complete this Transaction that can be performed or undertaken by the
tendering party's solicitor without the cooperation or participation of the other party's solicitor,
and specifically when the tendering party's solicitor has electronically "signed" the TransferiDeed
of Land and any other closing document, if any, to be electronically registered for completeness
and granted access to the other party's solicitors to same, but without the necessity for the tendering
party's solicitor actually releasing such documents to the other party's solicitor for registration.
SECTION 19
ADJUSTMENTS
19.01 Adjustments between the Vendor and the Purchaser shall be made on the Closing Date for taxes,
local improvement rates, utility costs, rents, legal costs and other matters or items which are
ordinarily the subject of adjustment for the purchase and sale of a property similar to the Property
in the Province of Ontario. Such Adjustments shall be made on the basis that, except as may be
otherwise expressly provided for in this Agreement:
23
(a) the Vendor shall be responsible for all expenses and liabilities and entitled to all income
from the Property up to the Closing Date; and
(b) the Purchaser shall be responsible for all expenses and liabilities and entitled to all income
from the Property from and including the Closing Date.
19.02 Adjustments that cannot be determined on the Closing Date shall be determined by the parties as
soon after the Closing Date as is reasonably possible. Any amounts payable by one party to the
other, as determined by the parties, acting reasonably, shall be paid within thirty (30) days of the
request for such payment. On the Closing Date, the Vendor and the Purchaser shall exchange
undertakings to re -adjust the foregoing items, if necessary.
19.03 All Adjustments to be made under Section 19.01 shall be completed on or before the date which is
no later than six (6) months from the Closing Date and no re -adjustment may be made by either
party thereafter.
SECTION 20
ELECTRONIC REGISTRATION
20.01 Where the Property is in an area where electronic registration is mandatory and the Transaction
will be completed by electronic registration pursuant to Part III of the Land Registration Reform
Act, R.S.O. 1990, c. L.4, and the Electronic Registration Act, S.O. 1991, c.44, and any amendments
thereto, the Vendor and Purchaser acknowledge and agree that the exchange of closing funds, non -
registrable documents and other closing deliverables provided for herein and the release thereof to
the Vendor and Purchaser will:
(a) not occur at the same time as the registration of the transfer/deed (and any other documents
intended to be registered in connection with the completion of this Transaction); and
(b) be subject to conditions whereby the lawyer(s) receiving any of the closing deliverables
will be required to hold same in escrow and not release same except in accordance with the
terms of a document registration agreement between the said lawyers, the form of which is
as recommended from time to time by the Law Society of Upper Canada (the "Document
Registration Agreement").
SECTION 21
CLOSING DELIVERABLES
21.01 Subject to the provisions of this Agreement, the Vendor covenants that it shall execute or cause to
be executed and shall deliver or cause to be delivered to the Purchaser or the Purchaser's solicitors
on or before the Closing Date, each of the following:
(a) possession of the Property in an As Is Where Is condition, subject to the Leases, and subject
to the rights of others as set out in the Permitted Encumbrances;
(b) an assignment of the Lease, whether complete or partial, the Development Agreements and
Permitted Encumbrances, as applicable;
(c) notice to the tenant pursuant to the Lease informing it of the sale of the Lands and directing
it to make future rent payments to the Purchaser;
24 -
(d) an executed Transfer/Deed of Land in registrable form duly executed by the Vendor in
favour of the Purchaser (save for any Land Transfer Tax Affidavit);
(e) an undertaking to re -adjust the statement of Adjustments, if necessary, upon written
demand;
a direction regarding the payment of funds;
statement of Adjustments;
Document Registration Agreement as set out in Schedule E; and
such other deeds, conveyances and other documents as the Purchaser or its solicitors may
reasonably require in order to implement the intent of this Agreement.
21.02 Subject to the provisions of this Agreement, the Purchaser covenants that it shall execute or cause
to be executed and shall deliver or cause to be delivered to the Vendor or the Vendor's Solicitors
on or before the Closing Date:
(a) confirmation of wire transfer for the balance of the Purchase Price and Adjustments due on
the Closing Date;
(b) confirmation of wire transfer for any Development Agreement Payment payable to the
Vendor, including the DC Credit Recovery Payment, the Private Landowner Equivalency
Payment, and Servicing Costs;
(c) a certified cheque, bank draft or confirmation of wire transfer for any Development
Agreement Payment payable to the applicable trustee under a Development Agreement;
(d) confirmation of delivery of Development Agreement Security to any applicable authority
or trustee under a Development Agreement, if applicable
(e) an undertaking to re -adjust the statement of Adjustments, if necessary, upon written
demand;
(f) HST Declaration and Indemnity, as contemplated in Section 4, if applicable;
(g)
an updated Statutory Declaration in the form set out in Schedule D is required in the event
that there have been any changes to the information contained in the Statutory Declaration
provided to the Vendor prior to the Execution Date pursuant to Section 11.01;
(h) an updated Statutory Declaration in the form set out in Schedule D is required in the event
that there have been any changes to the information contained in the Statutory Declaration
provided to the Vendor prior to the date of execution of this Agreement pursuant to Section
11.01;
(i)
Document Registration Agreement in the form attached as Schedule E;
(j) an Assignment and Assumption Agreement for the Leases;
-25-
(k) an Assignment and Assumption Agreement for each of the Development Agreements, in
substantially the same forms as were delivered as part of the closing of the Prior Purchased
Lands;
(1) a Participation Agreement in form attached hereto as schedule G;
(m) an Assumption Agreement for the Permitted Encumbrances, as applicable;
(n) the Purchaser's Closing Agreement in the form attached hereto as schedule F;
(o) such other deeds, conveyances, resolutions and other documents as the Vendor or its
solicitors may reasonably require in order to implement the intent of this Agreement.
SECTION 22
NOTICE
22.01 Any notice under this Agreement is sufficiently given if delivered personally or if sent by ordinary
prepaid mail or prepaid courier or electronic facsimile machine (including e-mail) addressed to the
Purchaser at:
The Corporation of the City of Pickering
One The Esplanade
Pickering
Ontario, L 1 V 6K7
Attention: Paul Bigioni, Director, Corporate Services and City Solicitor
Telephone: (905) 420-4660 ext. 2048
Email: pbigioni(0pickerinm.ca
and to the Purchaser's Solicitors at:
Torys LLP
79 Wellington Street West
Suite 3000
Box 270, TD Centre
Toronto
Ontario, M5K 1N2
Attention: Dan Ford / Andy Gibbons
Telephone: (416) 865-73721(416) 865-8226
Email: dford(a),torys.com 1 agibbons(M..torvs.com
and to the Vendor at:
c/o Ontario Infrastructure and Lands Corporation
Sales and Acquisitions
1 Dundas Street West
Suite 2000
- 26 -
Toronto, ON M5G 2L6
Attention: Vice President, Sales and Acquisitions
Facsimile: 416-327-3942
And:
Attention: Director, Legal Services (Real Estate and Leasing)
777 Bay Street,
Suite 900
Toronto, ON M5G 2C8
Facsimile: 416-326-2854
or at such other addresses as the Vendor and the Purchaser may designate from time to time. Any
such notice shall be conclusively deemed to have been given and received upon the same day if
personally delivered or sent by facsimile or email, or, if mailed, three (3) Business Days after the
same is mailed. Any party may, at any time by notice given in writing to the other party, change
the address for service of notice on it.
SECTION 23
CONFIDENTIALITY
23.01 The Vendor and Purchaser agree to take all necessary precautions to maintain the confidentiality
of the terms and conditions contained herein. The parties acknowledge that this Agreement and any
information or documents that are provided hereunder may be released pursuant to the applicable
provisions of the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, as
amended and the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990,
c. M.56, as amended and Open Data may be released pursuant to the Open Data Directive. This
acknowledgment shall not be construed as a waiver of any right to object to the release of this
Agreement or of any information or documents.
23.02 The Purchaser agrees to ensure that the Purchaser, its officers, employees, agents and sub-
contractors shall, subject to Section 23.01, maintain the confidentiality and security of all materials
and information which is the property of the Vendor and in the possession or under the control of
the Purchaser pursuant to this Agreement. The Purchaser agrees to ensure that the Purchaser, its
officers, employees, agents and sub -contractors shall not directly or indirectly disclose or use, either
during or following the term of this Agreement, except where required by law, any material or
information belonging to the Vendor pursuant to this Agreement, without first obtaining the prior
written consent of the Vendor for such disclosure or use and in the event of termination of this
Agreement, the Purchaser will be responsible for returning all such documentation and information
to the Vendor without making copies.
SECTION 24
GENERAL
24.01 Time shall in all respects be of the essence of this Agreement, provided that the time for doing or
completing any matter provided for in this Agreement may be extended or abridged by an
- 27 -
agreement in writing, signed by the Vendor and the Purchaser or by an agreement between their
respective solicitors who are hereby expressly authorized in this regard. If anything in this
Agreement is to be done on a day which is not a Business Day, the same shall be done on the next
succeeding Business Day.
24.02 This Agreement shall be binding upon, and enure to the benefit of, the Vendor and the Purchaser
and their respective successors and permitted assigns. The Vendor and the Purchaser acknowledge
and agree that the representations, covenants, agreements, rights and obligations of the Vendor and
the Purchaser under this Agreement shall not merge on the completion of this Transaction, but shall
survive completion and remain in full force and effect and be binding upon the parties, save and
except as may be otherwise expressly provided for in this Agreement.
24.03 Whenever the singular is used in this Agreement, it shall mean and include the plural and whenever
the masculine gender is used in this Agreement it shall mean and include the feminine gender if the
context so requires.
24.04 This Agreement constitutes the entire agreement between the parties and there is no representation,
warranty, collateral agreement or condition affecting this Agreement or the Property, except as
specifically set forth in this Agreement. This Agreement may not be modified or amended except
by an instrument in writing signed by the parties hereto.
24.05 This Agreement and the rights and obligations of the Vendor and the Purchaser shall be determined
in accordance with the laws of the Province of Ontario.
24.06 Wherever this Agreement makes reference to a requirement for the consent or approval of the
Vendor, such consent must be prior written consent and may be arbitrarily and unreasonably
withheld in the sole and absolute discretion of the Vendor.
24.07 No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver
of any other provision (whether or not similar) nor shall any waiver constitute a continuing waiver
unless otherwise expressed or provided.
24.08 If any provision of this Agreement or part thereof or the application thereof to any person or
circumstance, to any extent, shall be determined to be invalid or unenforceable, the remainder of
this Agreement or the application of such provisions or part thereof to any person, party or
circumstance other than those to which it is held invalid or unenforceable shall not be affected
thereby. Each covenant, obligation and agreement in this Agreement shall be separately valid and
enforceable to the fullest extent permitted by law.
24.09 Each of the parties hereto shall from time to time hereafter and upon any reasonable request of the
other and in such form as may be satisfactory to both parties hereunder, execute and deliver, make
or cause to be made all such further acts, deeds, assurances and things as may be required or
necessary to more effectually implement and carry out the true intent and meaning of this
Agreement.
SECTION 25
IRREVOCABLE PERIOD
25.01 Signature of this Agreement by the Purchaser and the submission thereof to the Vendor constitutes
an offer under seal, which is irrevocable for twenty-five (25) days from the date it is submitted to
the Vendor and open for acceptance by the Vendor during said twenty-five (25) day period. This
- 28 -
offer, once accepted on the Execution Date, constitutes a binding contract of purchase and sale.
This offer may be made and accepted by electronic transmission, including electronic signature
provided that the original hard copy, with original signatures is received by both parties within five
(5) days of the electronic acceptance. The Purchaser, in submitting this offer, acknowledges that
there has been no promise or representation or assurance given to the Purchaser that any of the
terms and conditions in this offer are or will be acceptable to the Vendor.
[no further text on this page]
- 29 -
IN WITNESS WHEREOF the parties hereto have executed this Agreement as evidenced
by their properly authorized officers in that behalf as of the day and year first above written.
OFFERED BY the Purchaser this j Z day of 1444,(ok , 2019.
THE CORPORATION OF THE CITY OF
PICKERING
By:
By:
Name: ✓v�--eek-�
� p
Title: ry �1,/ � i `S e
l ,jam
Name:
Title:
I/We have authority to bind the
Corporation
ACCEPTED BY the Vendor this ZZ a y of 114 , 2019.
HER MAJESTY THE QUEEN IN RIGHT
OF ONTARIO as represented by
[HE MINISTER OF GOVERNMENT AND
CONSUMER SERVICES as represented by
ONTARIO INFRASTRUCTURE AND
LANDS CORPORATIN
By:
By:
Nam
Title:
!
V, Sales, Easea4eih 41 it71fr
an -i a(
Name:
Title:
1
Authorizing Signing Officer
SCHEDULE A-1
DESCRIPTION OF LANDS
PART LOT 24, CONCESSION 5 PICKERING
(Areas to be determined upon completion of the reference plan prepared pursuant to Section 13.01, and in
accordance with the mapping at Schedule A-2)
38997-200128256807.2
SCHEDULE A-2
SKETCH OF LANDS
Seaton Lands - Bundle 6 Transaction 3
SCHEDULE B
PERMITTED ENCUMBRANCES
(a) General Encumbrances:
(i)
the Leases and any notices of such lease registered on title to the Lands, including
all easements, rights of way, restrictions, restrictive covenants, servitudes and
other similar rights in land contained in the Lease, which exist as of the Closing
Date and any leasehold mortgages or security interests relating to tenants or the
tenants' interest in respect thereof and which do not encumber the interest of the
landlord thereunder;
(ii) liens for real property taxes (which term includes charges, rates and assessments)
or charges for electricity, power, gas, water and other services and utilities in
connection with the Property or for construction in connection with the Property
for amounts the payment of which is not yet due or delinquent;
(iii) any easements, rights of way, restrictions, building schemes, licences, restrictive
covenants and servitudes, rights of access or use, airport zoning regulations and
other similar rights in land (including, without limitation, rights of way and
servitudes for sewers, drains, gas and water mains, electrical power, telephone and
cable conduits, poles, wires or cables) granted to, reserved or taken by any person
which do not, in the aggregate, materially and adversely impair the use or
marketability of any of the Property for the purposes for which it is presently held,
and any rights reserved or vested in any Authority or public or private utility by
the terms of any lease, licence, franchise, grant, agreement or permit, subdivision,
development, servicing, encroachment, site plan, parking or other similar
agreement with any Authority or public or private utility;
(iv) title defects or irregularities which do not, in the aggregate, materially and
adversely impair the use of the Property for the purpose for which it is presently
held;
(v) any cost sharing, common use, reciprocal or other similar agreements relating to
the use and/or operation of the Property and/or adjoining properties provided the
same are complied with in all material respects and all security given by the parties
thereto to each other to secure their respective obligations thereunder;
(vi) any subsisting reservations, limitations, provisos, conditions or exceptions,
including royalties, contained in the original grant of the Property from the Crown;
(vii) any rights of expropriation, access or use, or any other right conferred or reserved
by or in any statute of Canada or the Province of Ontario;
(viii) the provisions of all applicable laws including by-laws, regulations, ordinances,
land use contracts, development agreements and similar instruments relating
(without limitation) to development, use and zoning;
(ix) encroachments by any improvements on the Property over adjoining lands and
easements or rights of way and/or any improvements on adjoining lands
encroaching on the Property which do not materially and adversely affect the
present use of the Property;
(x) all registered and unregistered agreements, easements, rights, covenants and/or
restrictions in favour of municipalities, publicly or privately regulated utilities or
adjoining owners, or that otherwise run with the Lands; and
(xi) any encroachments that are shown on existing surveys or as may be revealed by
an up-to-date survey.
(b) Specific Encumbrances:
(i) All instruments registered on title to the Property as of the Closing Date, including but
not limited to:
1. Notice of the Phase 1 RFEA;
2. Notice of the Pickering FIA;
3. Notice of the Seaton CSA;
4. Notice of the Seaton -Durham CSA.
SCHEDULE C
PROPERTY DOCUMENTS
[Note: Vendor to provide within five (5) days of Execution Date in accordance with Section 5.05.]
Canada
Province of Ontario
TO WIT:
I,
SCHEDULE D
STATUTORY DECLARATION
IN THE MATTER OF THE TITLE TO <>
AND IN THE MATTER OF A SALE THEREOF from HER
MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS
REPRESENTED BY THE MINISTER OF GOVERNMENT
AND CONSUMER SERVICES (the "Vendor") to THE
CORPORATION OF THE CITY OF PICKERING (the
"Purchaser")
, of the , in the Province of Ontario,
DO SOLEMNLY DECLARE, that:
1. I am the
matters hereinafter declared.
{title} of the Purchaser and as such have knowledge of the
2. The Purchaser and Ontario Infrastructure and Lands Corporation ("OILC") are arm's length parties
and the Purchaser has received no special knowledge nor special consideration in entering into the above
Agreement of Purchase and Sale, which would lead to the presumption that the parties are not arm's length
parties.
3. The Purchaser and the Vendor are arm's length parties and the Purchaser has received no special
knowledge nor special consideration in entering into the above Agreement of Purchase and Sale, which
would lead to the presumption that the parties are not arm's length parties.
4. Except as expressly set out in Schedule A to this Declaration:
(a) to the best of the knowledge and belief of the undersigned, there are no outstanding legal
disputes or actions between the Vendor and Purchaser;
(b) the Purchaser is not in conflict with OILC with respect to the above transaction; and
(c) the Purchaser is not in conflict with the Vendor with respect to the above transaction.
AND I make this solemn Declaration conscientiously believing it to be true, and knowing that it is of the
same force and effect as if made under oath and by virtue of the Canada Evidence Act.
DECLARED by the above-named
Declarant, before me at the of
, this
day of , 201_
A Commissioner, etc.
BETWEEN:
AND:
SCHEDULE E
DOCUMENT REGISTRATION AGREEMENT
DOCUMENT REGISTRATION AGREEMENT
(hereinafter referred to as the "Vendor's Solicitor")
(hereinafter referred to as the "Purchaser's Solicitor")
RE: Her Majesty the Queen in right of Ontario as represented by the Minister of Government and Consumer
Services (the "Vendor") sale to O (the "Purchaser") of the property legally described as O, City of O,
being the whole of PIN O(LT) (the "Property" pursuant to an Agreement of Purchase and Sale between
the Purchaser, as purchaser, and the Vendor, as vendor, dated O and accepted O (the "Purchase
Agreement"), Scheduled to be completed on <> (the "Closing Date")
Holding Deliveries
In Escrow
Advising of
Concems with
Deliveries
Selecting Solicitor
Responsible for
Registration
FOR GOOD AND VALUABLE CONSIDERATION (the receipt and
sufficiency of which is hereby expressly acknowledged), the parties hereto hereby
undertake and agree as follows:
1. The Vendor's Solicitor and the Purchaser's Solicitor shall hold all funds, keys and closing
documentation exchanged between them (the "Requisite Deliveries") in escrow. and shall not release
or otherwise deal with same except in accordance with the terms of this Agreement. Both the
Vendor's Solicitor and the Purchaser's Solicitor have been authorized by their respective clients to
enter into this Agreement. Once the Requisite Deliveries can be released in accordance with the
terms of this Agreement, any monies representing payout funds for mortgages to be discharged shall
be forwarded promptly to the appropriate mortgage lender)
2. Each of the parties hereto shall notify the other as soon as reasonably possible following
their respective receipt of the Requisite Deliveries (as applicable) of any defect(s) with respect to same.
3. The Purchaser's Solicitor shall be responsible for the registration of the Electronic
Documents (as hereinafter defined) unless the box set out below indicating that the Vendor's
Solicitor will be responsible for such registration has been checked. For the purposes of this
Agreement, the solicitor responsible for such registration shall be referred to as the "Registering
Solicitor" and the other solicitor shall be referred to as the "Non -Registering Solicitor":
Vendor's Solicitor will be registering the Electronic Documents
Solicitors should continue to refer to the Law Society of Upper Canada practice guidelines relating to recommended procedures to follow
for the discharge of mortgages.
Responsibility of
Non -Registering
Solicitor
Responsibility of
Registering
Solicitor
Release of Requisite
Deliveries by Non -
Registering Solicitor
Retuming
Delivenes where
Non -registration
4. The Non -Registering Solicitor shall, upon his/her receipt and approval of the Requisite
Deliveries (as applicable), electronically release for registration the Electronic Documents and shall
thereafter be entitled to release the Requisite Deliveries from escrow forthwith following the earlier
of:
a) the registration of the Electronic Documents;
b) the closing time specified in the Purchase Agreement unless a specific time has
been inserted as follows [ a.m. p.m. on the Closing Date] (the "Release
Deadline"), and provided that notice under paragraph 7 below has not been
received; or
c) receipt of notification from the Registering Solicitor of the registration of the
Electronic Documents.
If the Purchase Agreement does not specify a closing time and a Release Deadline has not been
specifically inserted the Release Deadline shall be 6.00 p.m. on the Closing Date.
5. The Registering Solicitor shall, subject to paragraph 7 below, on the Closing Date,
following his/her receipt and approval of the Requisite Deliveries (as applicable), register the
documents listed in Schedule A annexed hereto (referred to in this agreement as the "Electronic
Documents") in the stated order of priority therein set out. as soon as reasonably possible once same
have been released for registration by the Non- Registering Solicitor, and immediately thereafter
notify the Non -Registering Solicitor of the registration particulars thereof by telephone or telefax (or
other method as agreed between the parties).
6 Upon registration of the Electronic Documents and notification of the Non -Registering
solicitor in accordance with paragraph 5 above, the Non- Registering Solicitor shall be entitled to
forthwith release the Requisite Deliveries from escrow.
7. Any of the parties hereto may notify the other party that he she does not wish to proceed
with the registration= of the Electronic Documents, and provided that such notice is received by the
other party before the release of the Requisite Deliveries pursuant to this Agreement and before the
registration of the Electronic Documents, then each of the parties hereto shall forthwith return to the
other party their respective Requisite Deliveries.
Counterparts 8. This agreement may be signed in counterparts, and shall be read with all changes of gender
& Gender and/or number as may be required by the context.
Purchase 9. Nothing contained in this agreement shall be read or construed as altering the respective
Agreement rights and obligations of the Purchaser and the Vendor as more particularly set out in the Purchase
Prevails if
Conflict or Agreement, and in the event of any conflict or inconsistency between the provisions of this
Inconsistency agreement and the Purchase Agreement, then the latter shall prevail.
Telefaxing 10. This agreement (or any counterpart hereof), and any of the closing documents hereinbefore
Deliveries contemplated, may be exchanged by telefax or similar system reproducing the original, provided that
8 Providing
Originals if all such documents have been properly executed by the appropriate parties. The party transmitting
Requested any such document(s) shall also provide the original executed version(s) of same to the recipient
within 2 business days after the Closing Date, unless the recipient has indicated that he/she does not
require such original copies.
- For the purpose of this Agreement. the term -registration' shall mean the issuance of registration number(s) in respect of the Electronic
Documents by the appropnate Land Registry Office.
Dated this day of <>, 201. Dated this day of <>, 201
Name/Firm Name of Vendor's Solicitor Name/Firm Name of Purchaser's Solicitor
<7 Q
(Signature) (Signature)
Note: This version of the Document Registration Agreement was adopted by the Joint LSUC-CBAO Committee
on Electronic Registration of Title Documents on March 29, 2004 and posted to the web site on April 8, 2004.
Schedule "A"
1. Transfer from <> to <>.
SCHEDULE F
CLOSING AGREEMENT
TO: Her Majesty the Queen in right of Ontario as represented by the Minister of Government
and Consumer Services (the "Vendor")
AND TO: Ontario Infrastructure and Land Corporation (the "Vendor's Agent")
RE:
The Corporation of the City of Pickering (the "Purchaser") purchase from the Vendor of the
property legally described as Part XXX, Concession XXX, Geographic Township of
Pickering, designated as Part XXX on Plan 40R -XXX, City of Pickering, Regional
Municipality of Durham (the "Property") pursuant to an Agreement of Purchase and Sale
between the Purchaser and the Vendor dated XXX, as amended from time to time (the
"Purchase Agreement")
In consideration of and notwithstanding the Closing of the Transaction and other good and valuable
consideration (the receipt and sufficiency of which is hereby acknowledged):
1. The Purchaser agrees to accept, assume and take title the Property and any improvements thereon in an
"As Is Where Is" condition in accordance with Section 5.01 of the Purchase Agreement.
2. The Purchaser confirms that all provisions of the Purchase Agreement that by their express terms are to
survive and not merge on Closing shall survive and not merge on Closing.
3. The Purchaser confirms that all representations and warranties made by the purchaser in the Purchase
Agreement remain true and correct as if repeated here.
4. The Purchaser reaffirms all indemnities made by it in the Purchase Agreement.
5. The Purchaser reaffirms the release and covenant not to sue provided for in Section 5.08 and 5.10 of the
Purchase Agreement.
6. This Agreement shall not merge on Closing but shall survive Closing.
7. Unless otherwise defined herein, all capitalized terms used herein have the meaning ascribed to them in
the Purchase Agreement.
8. The Vendor and Vendor's Agent may rely on a signed electronically transmitted copy of this Agreement
which shall constitute and be treated for all purposes as signed original of this Agreement.
9. This Agreement shall be binding upon the successors and permitted assigns of the Purchaser and shall
enure to the benefit of the Vendor and its successors and assigns.
DATED as of the XX day of XXX, 2019.
THE CORPORATION OF THE CITY OF
PICKERING
Per:
Per:
Name:
Title:
Name:
Title:
I have authority to bind the Corporation.
SCHEDULE G
PARTICIPATION AGREEMENT
BETWEEN:
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS REPRESENTED BY THE
MINISTER OF GOVERNMENT AND CONSUMER SERVICES
-and-
THE CORPORATION OF THE CITY OF PICKERING
RECITALS:
A. Her Majesty the Queen in right of Ontario, as represented by the Minister of Government and
Consumer Services (the "Province") is the owner in fee simple of the land described in Appendix
"A" to this Participation Agreement (the "Property"). Ontario Infrastructure and Lands Corporation
confirms that it is the designated agent of the Province.
B. The Corporation of the City of Pickering (the "Transferee") is the proposed transferee of the Property
as at the date hereof pursuant to an Agreement of Purchase and Sale between the Province and the
Transferee, fully executed on «Enter Date» (the "Sale Agreement").
NOW THEREFORE in consideration of the mutual covenants hereinafter set forth, the transfer of the
Property from the Province to the Transferee and other good and valuable consideration, the parties hereto
agree as follows:
1. For the purposes of this Participation Agreement:
"Base Amount" means [NTD — enter purchase price] in respect of the Property, and recalculated
in accordance with paragraph 2 below in respect of any portion of the Property.
"Business Day" means any day on which the Government of Ontario normally conducts business.
"Closing Date" means the date upon which the Property is transferred by the Province to the
Transferee pursuant to the Sale Agreement, being «Enter Closing Date».
"Profit" means the amount by which the Sale Price exceeds the Base Amount with respect to the
Property or portion thereof.
"Purpose" has the meaning ascribed thereto in paragraph 2 below.
"Sale Price" means the value in Lawful money of Canada of all consideration and benefit paid or
agreed to be paid for the Property or portion thereof, including all buildings and improvements, by a
purchaser dealing with the Transferee, including the value of all chattels situate thereon which are
then owned by the Transferee and which are intended to pass on such sale transaction and the value
of any encumbrances or mortgages assumed by such purchaser or taken back as part of the
consideration for such sale transaction, less the aggregate of the following:
(a) the cumulative total of any and all capital improvements to the Property or portion thereof
less any amortization taken in respect thereof (as determined in accordance with generally
accepted accounting principles and to account for the depreciation of the capital
improvements and any diminution in value due to damage, faulty workmanship, construction
defects or other causes) made by the Transferee after it acquired the Property or portion
thereof;
(b) any real estate commission payable by the Transferee in disposing of the Property or portion
thereof to such a third -party purchaser in an amount not to exceed the then current industry
practice; and
(c) reasonable legal and accounting fees payable by the Transferee in disposing of the Property
or portion thereof.
"Term" means the period commencing on the date hereof and expiring on the date which is ten (10)
years following the Closing Date hereof.
"Transferee" has the meaning ascribed to such term in the Recitals hereto, and shall also include any
successor in title to the Property during the Term.
2. It is the express intention of the Province and the Transferee that there shall be no speculation with
respect to all or any portion of the Property. In the event of a sale or proposed sale of all or any
portion of the Property by the Transferee or any affiliated company of the Transferee as that term is
defined in the Business Corporations Act, R.S.O. 1990, c.B. 16, at any time during the Term, at the
option of the Province, either (i) the Province shall have the right to repurchase the Property at the
same price paid by the Transferee to the Province pursuant to the Sale Agreement, plus the cumulative
total of any and all capital improvements made by the Transferee to the Property from and after it
acquired the Property (as determined in accordance with generally accepted accounting principles
and to account for the depreciation of the capital improvements and any diminution in value due to
damage, faulty workmanship, construction defects or other causes), or (ii) one hundred percent
(100%) of any Profit as defined below shall be paid to the Province and the amount of such Profit
shall be a charge on the Property in favour of the Province until paid. In determining the Base Amount
and calculating the Profit for the proposed sale of any portion of the Property, the Base Amount shall
be adjusted and calculated on a pro -rata basis based on the acreage of such portion being transferred,
as shown by evidence (e.g. a reference plan) provided by the Transferee to the Province at no cost to
the Province, to the satisfaction of the Province. At the request of the Province, the Transferee shall
enter into a charge or other form of security, acceptable to the Province at its sole, unfettered
discretion, to secure payment of the Profit. With respect to any capital improvement costs or other
costs or expenses involved in the calculation of the Sale Price, Profit or the price at which the Province
is to repurchase the Property in accordance with this Agreement, the Transferee shall provide all
documents, records and invoices in sufficient detail, at no cost to the Province, to allow analysis and
approval of such calculation(s) by the Province.
For the purposes of this provision, the Transferee and the Province acknowledge that the purpose for
which the Property is being purchased is for [ ] (the "Purpose"). In the event
that the Transferee does not begin to use and thereafter continue to use the Property for the Purpose
within years following the Closing Date, which shall be evidenced by [NTD: TBD], then the
Province shall have the right to repurchase the Property at the same price paid by The Corporation
of the City of Pickering to the Province pursuant to the Sale Agreement and the Transferee shall
return the Property to the Province in its original condition it was in immediately prior to the transfer
of the Property from the Province to The Corporation of the City of Pickering and, if applicable, the
Transferee shall have the obligation to restore the Property to such condition at no cost to the
Province.
The Transferee acknowledges that the Province may be required to obtain certain approvals to
exercise any of the options under this Participation Agreement.
3. The Transferee acknowledges and agrees that the Province shall have all the rights and remedies of
a secured party under the Personal Property Security Act and a mortgagee under the Mortgages Act
in the event that such Transferee fails to pay any amount owing to the Province pursuant to this
Participation Agreement.
4. On the Closing Date the Transferee will register in the appropriate land registry office a Notice of
this Participation Agreement on title to the Property immediately following the transfer to the
Transferee and prior to any mortgage or other instrument.
5. The Transferee acknowledges that the provisions of this Participation Agreement run with title to the
Property, and the Transferee covenants not to sell, transfer or otherwise alienate the Property or any
part thereof to any affiliated entity or any third party unless such transferee agrees in writing to
assume the obligations of the Transferee herein and be bound by the terms of this Participation
Agreement in respect of the Property or such part thereof, as the case may be, in a form satisfactory
to the Province.
6. At least 15 Business Days prior to the scheduled completion of a transfer of title to the Property or
portion thereof, the Transferee shall deliver to the Province a sworn declaration setting forth the
proposed Sale Price and if there is any Profit, including information used to calculate the Sale Price
and Base Amount in accordance with this Participation Agreement, in reasonable detail to allow
analysis and approval of the calculation of the Sale Price and Profit (if any) by the Province. The
declaration shall also include the calculation of the Profit payable by the Transferee to the Province.
Prior to the completion of any transfer of the Property or any portion thereof by the Transferee, the
Transferee must first obtain the approval of the calculation of the Sale Price and the Profit, in writing,
from the Province, and make arrangements to pay the Profit to the Province, if any, which
arrangements must be satisfactory to the Province, acting reasonably.
7. Any notice under this Participation Agreement is sufficiently given if delivered personally or if sent
by ordinary prepaid mail or prepaid courier, electronic facsimile machine or similar electronic means
(including e-mail) addressed to the Transferee at:
and to the Transferee's solicitor at:
f 1
and to the Province at:
c/o Ontario Infrastructure and Lands Corporation
Sales and Acquisitions
1 Dundas Street West
Suite 2000
Toronto, ON M5G 2L6
Attention: Vice President, Sales and Acquisitions
Facsimile: 416-327-3942
And:
Attention: Director, Legal Services (Real Estate and Leasing)
777 Bay Street,
Suite 900
Toronto, ON M5G 2C8
Facsimile: 416-326-2854
or at such other addresses as the parties may designate from time to time. Any such notice shall be
conclusively deemed to have been given and received upon the same day if personally delivered or
sent by facsimile or similar electronic means (including e-mail), or, if mailed, three (3) Business Days
after the same is mailed. Any party may, at any time by notice given in writing to the other party,
change the address for service of notice on it.
8. This Participation Agreement may be executed and delivered in counterparts and any such
counterpart may be delivered in its original form or by facsimile transmission and each of which
when so executed and delivered shall be deemed to be an original and such counterparts together
shall constitute one and the same Agreement.
9. This Participation Agreement shall be binding upon, and enure to the benefit of the Transferee and
the Province and their respective successors and permitted assigns.
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK — SIGNING PAGE FOLLOWS]
DATED the «Day», day of «Month», «Year».
THE CORPORATION OF THE CITY OF
PICKERING
Per:
By:
Name:
Title:
Name:
Title:
UWe have authority to bind the Corporation.
DATED the «Day», day of «Month», «Year».
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO
AS REPRESENTED BY THE MINISTER OF
GOVERNMENT AND CONSUMER SERVICES AS
REPRESENTED BY ONTARIO INFRASTRUCTURE
AND LANDS CORPORATION
Per:
Name: «Director/Project Manager's Name»
Title: «Title», Sales, Easements & Acquisitions
I have the authority to bind the Corporation.
f 1
APPENDIX "A"
Attachment No. 3 to Report CAO 02-20
Execution Version
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS REPRESENTED BY THE
MINISTER OF GOVERNMENT AND CONSUMER SERVICES
as "Vendor"
and
THE CORPORATION OF THE CITY OF PICKERING
as "Purchaser"
AGREEMENT OF PURCHASE AND SALE
(Employment Land — 2019 Parcel 5)
38997-2001 28267743.1
TABLE OF CONTENTS
SECTION 1 DEFINITIONS 1
SECTION 2 AGREEMENT OF PURCHASE AND SALE 7
SECTION 3 DEPOSIT / PAYMENT OF PURCHASE PRICE 8
SECTION 4 HARMONIZED SALES TAX 9
SECTION 5 "AS IS WHERE IS", PURCHASER'S INSPECTION PERIOD, AND
ENVIRONMENTAL INDEMNITY 10
SECTION 6 CLOSING CONDITIONS 13
SECTION 7 SALE APPROVAL 15
SECTION 8 CLASS EA REQUIREMENTS / ABORIGINAL CLAIMS 15
SECTION 9 RISK 17
SECTION 10 VENDOR'S WARRANTIES, REPRESENTATIONS AND COVENANTS 18
SECTION 11 PURCHASER'S WARRANTIES, REPRESENTATIONS AND COVENANTS 18
SECTION 12 SEVERANCE 19
SECTION 13 REFERENCE PLAN(S) 19
SECTION 14 TITLE 19
SECTION 15 NO ASSIGNMENT ETC. 20
SECTION 16 DEVELOPMENT AGREEMENTS 20
SECTION 17 PREPARATION OF TRANSFER/DEED DOCUMENTS AND FEES/COSTS 22
SECTION 18 TENDER 22
SECTION 19 ADJUSTMENTS 23
SECTION 20 ELECTRONIC REGISTRATION 23
SECTION 21 CLOSING DELIVERABLES 23
SECTION 22 NOTICE 25
SECTION 23 CONFIDENTIALITY 26
SECTION 24 GENERAL 27
SECTION 25 IRREVOCABLE PERIOD 28
38997-200128267743.1
AGREEMENT OF PURCHASE AND SALE
BETWEEN:
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO
AS REPRESENTED BY THE MINISTER OF GOVERNMENT AND
CONSUMER SERVICES
(hereinafter collectively called the "Vendor")
- and -
THE CORPORATION OF THE CITY OF PICKERING
(hereinafter called the "Purchaser")
RECITALS:
OF THE FIRST PART
OF THE SECOND PART
A. The Vendor is the owner in fee simple of the property defined as the "Lands" in Section 1.01(vv)
of this Agreement.
B. Vendor and OILC hereby confirm that OILC is the designated agent of the Vendor.
C. The Lands are within the area covered by the "Central Pickering Development Plan" issued
pursuant to the Ontario Planning and Development Act, 1994, S.O. 1994, c.23.
D. The Lands are subject to the Development Agreements, and the Purchaser has agreed to assume
the Development Agreements as they relate to the Lands.
E. The Lands are subject to the Lease(s), and the Purchaser has agreed to assume the Lease(s) as they
relate to the Lands.
F. The Purchaser has offered to purchase the Property from the Vendor on the terms and conditions
hereinafter set forth.
NOW THEREFORE in consideration of the mutual covenants hereinafter set forth and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1
DEFINITIONS
1.01 Definitions
Unless the context expressly or by necessary implication indicates a contrary meaning, the terms
defined in this Section 1.01 for all purposes of this Agreement, shall have the meanings set out below:
38997-2001 28267743.1
(a) "Adjustments" means the adjustments to the Purchase Price provided for and determined
pursuant to this Agreement.
(b) "Affiliate" has the meaning set out in the Business Corporations Act, R.S.O. 1990, c. B.
16.
(c) "Agreement" means collectively, this agreement of purchase and sale, all Schedules
attached hereto and every properly executed instrument which by its terms amends,
modifies or supplements this Agreement.
(d) "Applicable Laws" means, collectively, all statutes, laws, by-laws, regulations, ordinances
and orders of any governmental Authority, including without limitation all Land Use
Regulations.
(e) "Approval Term" has the meaning ascribed to it in Section 7.03.
(f) "As Is Where Is" has the meaning ascribed to it in Section 5.01.
(g) "Assignee" has the meaning ascribed to it in Section 15.02.
(h) "Assignment and Assumption Agreement" means an agreement by which the Vendor
shall assign and the Purchaser shall become a party to a Development Agreement, Lease
or Permitted Encumbrance and whereby the Purchaser assumes the responsibility of the
Vendor with regard to the Property pursuant to such Development Agreement, Lease or
Permitted Encumbrance.
(i)
"Attribution Development Charges" means the Regional Attribution Water Supply DC
and the Regional Attribution Sanitary Sewerage DC (as such terms are defined in the Phase
1 RFEA) from time to time.
(j) "Attribution Prepayment" means the sum of the "Regional Attribution Water Supply DC
Prepayment" and the "Regional Attribution Sanitary Sewerage DC Prepayment" (as such
terms are defined in the Phase 1 RFEA) from time to time.
(k) "Authority" means any governmental or quasi -governmental authority, regulatory
authority, government department, agency, commission, board, tribunal, body or
department, or any court, whether federal, provincial or municipal, having jurisdiction over
the Property, or the use thereof, and includes the City and the Region.
"Buildings" means, individually or collectively, as the context requires, all buildings,
structures and fixed improvements located on, upon or under the Lands, and all
improvements and fixtures of the Vendor contained in, upon or on such buildings and
structures which are used in the operation of same, and "Building" means any one of the
Buildings.
(1)
(m)
"Business Day" means any day on which the Government of Ontario normally conducts
business.
(n) "City" means the City of Pickering.
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(o) "City Sale Approval" means the necessary internal approvals required for the Transaction
by the Council for the City.
(p) "Class EA" means the Class Environmental Assessment Process for the Ministry of
Infrastructure as it applies to OILC realty activities (being as at the Execution Date, the
"Ministry of Infrastructure Public Work Class Environmental Assessment (Office
Consolidation)", as approved April 28, 2004 and amended on September 11, 2008 and on
October 31, 2012), as approved, amended, or renewed from time to time by the Minister
of the Environment and Climate Change pursuant to Section 14 of the Environmental
Assessment Act, R.S.O. 1990, c. E.18.
(q)
"Class EA Requirements" has the meaning ascribed to it in Section 8.01.
(r) "Closing" means the closing of the Transaction, including without limitation, the payment
of the Purchase Price and the delivery of the closing documents in accordance with the
provisions of this Agreement.
(s) "Closing Date" means the day which is thirty (30) Business Days next following the date
the Purchaser waives or satisfies its condition(s) contained in Section 5 and Section 6.04
of this Agreement.
(t) "Community Use Land" has the meaning ascribed to it in the Seaton CSA.
(u) "Contaminant" has, for the purposes of this Agreement, the same meaning as that
contained in the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended, and shall
include the requirements of any and all guidelines and/or policies issued by the Ontario
Ministry of the Environment and Climate Change and/or the Ministry of Labour.
(v) "Cost Shared Service" has the meaning ascribed to it in the Seaton CSA.
(w) "Crown Right Request" has the meaning ascribed to it in Section 12.01.
(x) "DC Credit Recovery Payment" has the meaning ascribed to it in Section 16.03.
(y) "Deposit" has the meaning ascribed to it in Section 3.01.
(z) "Developable Area Share" has the meaning ascribed to it in the Seaton CSA.
(aa) "Development Agreements" means, collectively, the Phase 1 RFEA, the Seaton CSA, the
Pickering FIA, the Seaton -Durham CSA and the Master Parks Agreement, and
"Development Agreement" means any one of such agreements.
(bb) "Development Agreement Payment" means any payment required to be made, or security
to be provided, to an Authority, to the Vendor, or to a trustee named under a Development
Agreement, by the Purchaser at Closing hereunder and whether required by an Assignment
and Assumption Agreement or otherwise, and includes, but is not limited to, the DC Credit
Recovery Payment, Attribution Prepayment, Development Agreement Security,
Development Charge Payments, and Private Land Landowner Equivalency Payment.
-4 -
(cc) "Development Agreement Security" means any security required to be delivered by a
Private Landowner pursuant to a Development Agreement, whether by letter of credit or
otherwise.
(dd) "Development Charge Credits" means the development charge credits earned pursuant
to the Phase 1 RFEA.
(ee) "Development Charge Prepayments" means the prepayments on account of the Regional
Attributions Development Charges required to be paid to the Region pursuant to the Phase
1 RFEA upon the development of Employment Lands.
(ff) "Drainage Area Share" has the meaning ascribed to such term in the Seaton CSA.
(gg) "Durham Owners" has the meaning ascribed to it in the Seaton -Durham CSA.
(hh) "Employment Lands" means those lands designated as "Prestige Employment Lands" in
the `Central Pickering Development Plan'.
(ii) "Environmental Law" means, collectively, all Applicable Laws and agreements with
governmental Authorities and all other applicable federal and provincial statutes,
municipal and local laws, common law and deed restrictions, all by-laws, regulations,
codes, licences, permits, orders, directives, guidelines, decisions rendered by any
governmental Authority relating to the protection of the environment, natural resources,
public health, occupational health and safety or the manufacture, processing, distribution,
use, treatment, storage, disposal, packaging, transport, handling, containment, clean-up or
other remediation or corrective action of any Hazardous Substance, and all authorizations
issued pursuant to such Applicable Laws, agreements or statutory requirements.
(jj) "Environmental Objection" has the meaning ascribed to it in Section 5.02.
(kk) "Environmental Reports" means the reports relating to the environmental condition of
the Lands as identified in Schedule C.
(11) "Execution Date" means the date on which this Agreement has been executed and
delivered by all parties hereto.
(mm) "Expiry Date" has the meaning ascribed to it in Section 7.03.
(nn) "Further Class EA Extension Period" has the meaning ascribed to it in Section 8.02(d)(i).
(oo) "Further Extension Period" has the meaning ascribed to it in Section 8.03(b).
(pp) "Hazardous Substance" includes, but is not limited to any hazardous or toxic chemical,
waste, by-product, pollutant, contaminant, compound, product or substance, including
without limitation, any Contaminant, asbestos, polychlorinated biphenyls, petroleum and
its derivatives, by-products or other hydrocarbons and any other liquid, solid or gaseous
material the exposure to, or manufacture, possession, presence, use, generation, storage,
transportation, treatment, release, disposal, abatement, cleanup, removal, remediation or
handling of, which is prohibited, controlled or regulated by any and is defined in or
pursuant to any Environmental Law.
-5-
(qq) "Heritage Requirements" has the meaning ascribed to it in Section 8.01(b).
(rr) "HST" has the meaning ascribed to it in Section 4.01 of this Agreement.
(ss) "Initial Class EA Extension Period" has the meaning ascribed to it in Section 8.02.
(tt) "Initial Extension Period" has the meaning ascribed to it in Section 8.03.
(uu) "Inspection Period" means that period of time which is seventy (70) Business Days
following the Execution Date.
(vv) "Lands" means, collectively, the Table Lands and the SWP Lands.
(ww) "Land Use Regulations" means collectively, any land use policies, regulations, by-laws,
or plans of any Authority that apply to the use of the Property, including the existing
Official Plans, zoning by-laws and zoning orders.
(xx) "Land Transfer Tax Affidavit" has the meaning ascribed to it in Section 17.01.
(yy)
(zz)
"Lease(s)" means all leases or licences of any portion of the Lands in force at Closing.
"Master Parks Agreement" means the Master Parks Agreement dated May 1, 2017
entered into by the City, and the owners of other development land in the Seaton
Community for the purpose of establishing arrangements pertaining to the satisfaction of
the park dedication requirements for the Seaton Community.
(aaa) "Municipality" means the municipality (or municipalities) where the Property is located.
(bbb) "Offer Date" means the date the offer herein is submitted to the Vendor by the Purchaser.
(ccc) "OILC" means Ontario Infrastructure and Lands Corporation.
(ddd) "Open Data" means data that is required to be released to the public pursuant to the Open
Data Directive;
(eee) "Open Data Directive" means the Management Board of Cabinet's Open Data Directive,
updated on April 29, 2016, as same may be amended from time to time;
(fff) "Participation Agreement" means the Participation Agreement attached hereto as
schedule G and to be entered into between the Vendor and the Purchaser at Closing.
(ggg) "Permitted Encumbrances" means, collectively, the encumbrances listed in Schedule B
and any encumbrances created under the terms of this Agreement.
(hhh) "Phase 1 RFEA" has the meaning ascribed to such term in the Seaton CSA.
(iii) "Phase 1 RFEA Lands" has the meaning ascribed to such term in the Phase 1 RFEA.
(jjj) "Phase 1 Development" has the meaning ascribed to such term in the Seaton CSA.
(kkk) "Pickering FIA" means the Financial Impacts Agreement dated November 26, 2015
entered into by the City, and the owners of other development land in the Seaton
-6 -
Community for the purpose of confirming arrangements pertaining to the financing and
construction of certain infrastructure and other related matters affecting the development
of lands in Seaton.
(111) "Private Landowner" has the meaning ascribed to such term in the Seaton CSA.
(mmm) "Private Landowner Equivalency Payment" has the meaning ascribed to it in Section
16.06.
(nnn) "Property" means, collectively, all of the right, title and interest of the Vendor in and to
the Lands and the Buildings.
(000) "Property Documents" means the documents in OILC's current possession and related to
the Property, as set out in Schedule C, and shall include, but shall not be limited to:
(A) executed copies of any assignable service contracts, operating agreements
and management agreements;
(B) copies of assignable guarantees and warranties of materials, workmanship,
labour and materials relating to the Property that are still in effect;
(C) copies of the Environmental Reports, heritage reports, archaeological
reports or any other report relating to the physical, geotechnical or
environmental condition of the Property;
(D) a copy of the Lease;
(E) copies of all Permitted Encumbrances which are not registered against title
to the Property; and
(F) any plan of survey of the boundaries of the Property.
(ppp) "Provincial Successor" has the meaning ascribed to such term in the Seaton CSA.
(qqq) "Purchase Price" means the total amount determined by Section 2.02 that shall be paid by
the Purchaser to the Vendor for the Property, exclusive of HST and subject to the
Adjustments.
(rrr) "Purchaser's Reports" has the meaning ascribed to it in Section 5.06.
(sss) "Region" means the Regional Municipality of Durham.
(ttt) "Regional Infrastructure" has the meaning ascribed to it in the Seaton CSA.
(uuu) `'Requisition Date" has the meaning ascribed to it in Section 14.01.
(vvv) "Sale Approval" means the necessary internal governmental approvals required for the
Transaction including, but not limited to, the approval of the Lieutenant Governor -in -
Council pursuant to Section 9 of the Ministry of Infrastructure Act, 2011 S.O. 2011, C. 9,
Sched. 27.
(www) "Sale Approval Date" means the date that the Sale Approval was granted.
-7-
(xxx) "Seaton Community" means the developable land as determined by the Central Pickering
Development Plan, as may be further refined, and as determined by the Seaton CSA.
"Seaton CSA" means the Amended and Restated Cost Sharing Agreement dated
November 26, 2015 between the Vendor and other owners of development land in the
Seaton Community to provide for the sharing of the costs of development in the Seaton
Community.
(zzz) "Seaton -Durham CSA" means an agreement dated November 26, 2015 between the
Vendor, the Private Landowners and the Durham Owners to provide for the recovery of
certain costs of construction of Regional Infrastructure to be incurred by the Vendor and
the Private Landowners pursuant to the Phase 1 RFEA from the Durham Owners.
(aaaa) "Seaton Trustee" means the trustee as provided for in the Seaton CSA, as it is from time
to time. As of the Execution Date, the Seaton Trustee is North Pickering Community
Management Inc.
(bbbb) "Servicing Costs" has the meaning ascribed to it in Section 16.07.
(cccc) "Subsequent Phase" means development of land in the Seaton Community, the
development of which is not covered by the Phase 1 RFEA, and for which no allocation of
sewer or water capacity has currently be granted by any Authority.
(dddd) "SWP Lands" means part of those lands described in Schedule A-1, and shown shaded
in and referenced as "Stormwater Pond" on the sketch plan attached hereto as
Schedule A-2. [NTD — to be updated upon receipt of final mapping]
(eeee) "Table Lands" means part of those lands described in Schedule A-1, and shown shaded in
on the sketch plan attached hereto as Schedule A-2, excluding, for greater certainty,
the SWP Lands. [NTD — to be updated upon receipt of final mapping]
(ffff) "Transaction" means, collectively, the purchase and sale of the Property provided for in
this Agreement and all other matters contemplated in this Agreement.
(gggg) "Vendor" means Her Majesty the Queen in right of Ontario as represented by the Minister
of Government and Consumer Services and includes, for the purpose of any exculpatory
clause and indemnity included in this Agreement in favour of the Vendor, OILC, any
ministries, agencies, representatives, servants, employees, agents, invitees, officers,
directors, contractors and licensees of Her Majesty the Queen in right of Ontario and OILC,
and their brokers, service provider(s) and any other entity over whom the Vendor or OILC
may reasonably be expected to exercise control.
(yyy)
SECTION 2
AGREEMENT OF PURCHASE AND SALE
2.01 The Vendor agrees to sell, transfer and assign to the Purchaser all of the right, title and interest of
the Vendor in the Property and the Purchaser agrees to purchase, acquire and assume the Property
from the Vendor for the Purchase Price which shall be paid by the Purchaser to the Vendor for the
Property, exclusive of HST and subject to the Adjustments on the Closing Date.
-8-
2.02 The Purchase Price shall be calculated by multiplying the area of the Lands in acres by a per acre
price of:
(a) SEVENTY-NINE THOUSAND DOLLARS ($79,000.00) per acre with respect to the
SWP Lands; plus
(b) ONE HUNDRED AND FIFTY-EIGHT THOUSAND DOLLARS ($158,000.00) per
acre with respect to the Table Lands.
It is estimated that the area of the Table Lands is approximately 4.96 acres more or less and the
area of the SWP Lands is approximately 7.06 acres, which would result in a Purchase Price of ONE
MILLION THREE HUNDRED AND FORTY-ONE THOUSAND FOUR HUNDRED AND
TWENTY NINE DOLLARS ($1,341,420.00). Prior to Closing the area of the Lands shall be
conclusively determined by the reference plan to be prepared in accordance with Section 13.01
hereof.
2.03 The Purchaser shall NOT be entitled to direct title of the Property to any other person or entity at
Closing.
SECTION 3
DEPOSIT / PAYMENT OF PURCHASE PRICE
3.01 The Purchaser will pay to Vendor's solicitor in trust, by certified cheque or wire transfer:
(a) Upon the submission of this offer to purchase, the amount of $67,071.00, being equal to
five percent (5%) of the estimated Purchase Price, as estimated at Section 2.02 hereof, as
a deposit to be credited towards the Purchase Price on the Closing Date; and
(b) Within two Business Days of the Execution Date a further amount of $67,071.00, being
equal to five percent (5°'o) of the estimated Purchase Price, as estimated at Section 2.02
hereof, as a further deposit to be credited towards the Purchase Price on the Closing Date
(collectively, the "Deposit").
3.02 The parties authorize OILC to invest the Deposit with a Canadian bank as identified in Schedule I
of the Bank Act, R.S., 1991, c. B.46 (Canada) in a term or certificate of deposit (such investment to
be available to OILC through its trust account bank and which investment allows liquidation of the
investment as necessary for the anticipated Closing Date or earlier termination of this Agreement
as herein provided) if OILC determines, acting reasonably, that anticipated interest to be earned
will justify any related expenses, considering the rate of interest to be earned and the anticipated
time the Deposit will be held before Closing. Any and all interest earned thereon shall accrue to
the benefit of and, subject to Sections 3.03 and 5.03, be paid to the Purchaser forthwith following
the Closing Date or earlier termination of this Agreement.
3.03 In the event that this Agreement is terminated due to a specific default by the Purchaser, then the
Deposit, together with all interest accrued thereon, shall be forfeited to the Vendor as liquidated
damages.
-9-
3.04 If the Transaction is completed, the Deposit shall be credited against the Purchase Price due on
Closing and all interest accrued thereon shall be paid to the Purchaser or as it may direct forthwith
following Closing.
3.05 On Closing the Purchase Price shall be paid and satisfied as follows:
(a) by release of the Deposit to the Vendor; and
(b) the balance of the Purchase Price, as adjusted pursuant to this Agreement shall be paid on
the Closing Date by the Purchaser to OILC in trust by way of wire transfer, such payment
being deemed to have been made when OILC's financial institution confirms receipt of
such wire transfer.
3.06 In addition to the Purchase Price, at Closing the Purchaser shall pay, or cause to be paid, all
Development Agreement Payments to the Vendor, to the applicable Authority, or to the applicable
trustee under a Development Agreement, as applicable.
3.07 The Purchaser acknowledges that at Closing it will be required to provide, or cause to be provided,
Development Agreement Security to the appropriate Authority pursuant to one or more of the
Development Agreements.
3.08 The Transaction shall be completed on the Closing Date at the offices of the Vendor's solicitors.
SECTION 4
HARMONIZED SALES TAX
4.01 The Purchase Price does not include the Harmonized Sales Tax ("HST") payable by the Purchaser
in respect of the purchase of the Property pursuant to the Excise Tax Act, R.S.C. 1985, c. E.15
(Canada) (the "Act"). Subject to Section 4.02, the Purchaser agrees to pay to the Vendor, on the
Closing Date, as a condition of completion of this Transaction by wire transfer, certified cheque or
bank draft, all HST payable as a result of this Transaction in accordance with the Act.
4.02 Notwithstanding Section 4.01 above, the Vendor shall not collect HST from the Purchaser in this
Transaction if, on Closing, the Purchaser is registered under the Act and in that event, the Purchaser
shall:
(a) file returns and remit such HST to the Receiver General for Canada when and to the extent
required by the Act; and
(b) provide to the Vendor, on the Closing Date, a certificate confirming that the Purchaser is
registered under the Act for the purposes of collecting and remitting HST, and confirming
its HST registration number under the Act, together with an indemnity in favour of the
Vendor for any and all HST, fines, penalties, actions, costs, losses, claims, damages or
expenses and/or interest which may become payable by, or assessed against, the Vendor as
a result of the Vendor's failure to collect HST from the Purchaser on the Closing Date,
such certificate and indemnity to be in a form satisfactory to the Vendor's solicitor, acting
reasonably,
failing which the Purchaser shall pay to the Vendor on Closing the HST payable by the Purchaser
with respect to this Transaction and the Vendor shall remit such HST to the appropriate Authority
in accordance with the Act.
-10-
4.03 The Purchaser's obligations under this Section 4 shall survive and not merge on Closing.
SECTION 5
"AS IS WHERE IS",
PURCHASER'S INSPECTION PERIOD, AND ENVIRONMENTAL INDEMNITY
5.01 The Purchaser acknowledges and agrees that:
(a) in entering into this Agreement, the Purchaser has relied and will continue to rely entirely
and solely upon its own inspections and investigations with respect to the Property,
including, without limitation, the physical and environmental condition of the Property and
a review of any documentation respecting the Property, and the Purchaser acknowledges it
is not relying on any information furnished by the Vendor or any other person on behalf
of, or at the direction of, the Vendor in connection therewith;
(b) the Purchaser is purchasing and shall accept, assume and take title to the Property and any
improvements thereon in an "As Is, Where Is" condition. The term "As Is, Where Is"
means in its condition or state on the Offer Date, without any agreement, representation or
warranty of any kind whatsoever, either express or implied on the part of the Vendor, as to
the condition of the soil, the subsoil, the ground and surface water or any other
environmental matters, the condition of the Lands, suitability for development, physical
characteristics, profitability, the condition of the Buildings, or any other matter respecting
the Property whatsoever, including without limitation, compliance with Environmental
Law, the existence of any Hazardous Substance or Contaminant, the use to which the
Property may be put and its zoning, the development potential of the Property or the ability
of the Purchaser to obtain approvals with respect to the Purchaser's intended development
of the Property, or as to the accuracy, currency or completeness of any information or
documentation supplied to the Purchaser in connection with the Property; and
(c) the Vendor shall have no obligations or responsibility to the Purchaser after Closing with
respect to any matter relating to the Property or the condition thereof. The provisions of
this Section 5.01 shall survive and not merge on Closing.
Without limiting the foregoing, the Purchaser accepts, assumes and takes title to the Property
subject to the land uses currently permitted on the Property by the applicable Land Use Regulations
and the Purchaser shall not make and is not authorized by the Vendor to make, prior to completion
of this Transaction, any applications to the Municipality or any governmental Authority for changes
or variances to the uses currently permitted on the Property, including without limitation changes
or variances to official plans and/or zoning by-laws applicable to the Property.
5.02 During the period of time commencing on the Execution Date and expiring on the expiration of the
Inspection Period, the Purchaser may carry out whatever investigations it considers necessary to
satisfy itself with respect to the condition of the soil, the subsoil, the ground and surface water or
any other environmental matter relating to the Property, including, without limitation, compliance
with Environmental Law, the existence of any Hazardous Substance or Contaminant.
If as a result of such investigations the Purchaser has or acquires evidence within the Inspection
Period that there exists a condition of non-compliance with Environmental Law or the presence of
a Hazardous Substance or Contaminant on, in, at, under, emanating from or onto the Property that
would be in excess of the guidelines for any of the permitted uses under the current zoning by-law
affecting the Property, the risk or presence of which the Purchaser is not prepared to assume, then
the Purchaser shall, by written notice, provide such evidence to the Vendor within the Inspection
Period by way of a report of a recognized and qualified environmental consultant who shall specify
in detail the nature of the non-compliance, Hazardous Substance or Contaminant and quantify the
remediation cost (collectively, an "Environmental Objection"). Upon receipt of an
Environmental Objection, the Vendor may, at its option and in its sole discretion:
(a) undertake, as the Purchaser's sole and exclusive remedy, to take such actions,
complete such work and/or implement such measures, in the Vendor's sole
discretion as to means and methods, as may be necessary to correct the matter of
non-compliance prior to the Closing Date or as soon as reasonably possible after
the Closing Date if compliance prior to Closing is not, in the Vendor's opinion,
reasonably possible;
(b) credit the Purchaser, as the Purchaser's sole and exclusive remedy, the quantified
cost of correcting the matter of non-compliance as an adjustment to the Purchase
Price, in which event the Purchaser shall, on Closing, expressly assume the
obligation and undertake to correct the matter of non-compliance as soon as
possible after the Closing Date and shall indemnify and save harmless the Vendor
from and against any and all claims, demands, costs, damages, expenses and
liabilities whatsoever arising from the Purchaser's failure to remediate the
Hazardous Substance, Contaminant and/or matter of non-compliance;
(c) terminate this Agreement in which event the Deposit shall, subject to Section 5.03,
be returned to the Purchaser with accrued interest, and without further liability to
the Vendor; or
(d) refuse to do either (a), (b), or (c) above in which event the Purchaser shall have the
option of either: (i) completing the Transaction without adjustment to the Purchase
Price; or (ii) terminating this Agreement in which event the Deposit shall, subject
to Section 5.03, be returned to the Purchaser with accrued interest, and without
further liability to the Vendor.
The Vendor shall have ten (10) Business Days from receipt of the Environmental Objection to
make its election under (a), (b), (c) or (d) above by notice in writing to the Purchaser and in the
event the Vendor fails to make an election within said ten (10) Business Day period, the Vendor
will be deemed to have elected option (d) above. The Purchaser shall have ten (10) days from the
date of the Vendor's election or deemed election under (d) above to elect, by notice in writing to
the Vendor, to terminate or complete as per paragraph (d) above and in the event the Purchaser fails
to make an election within said ten (10) day period the Purchaser shall be deemed to have elected
to complete the Transaction without adjustment to the Purchase Price.
5.03 During the Inspection Period, the Vendor will permit the Purchaser together with its employees,
agents or consultants access to the Property, at reasonable times and upon a minimum of two (2)
Business Days' prior written notice to the Vendor, to carry out, at the Purchaser's sole expense and
risk, such investigations, tests and inspections as the Purchaser deems necessary, provided that the
Purchaser takes all reasonable care in the conduct of such investigations, tests and inspections. All
tests, investigations and inspections conducted by the Purchaser or its representatives shall be
commenced and completed prior to the expiration of the Inspection Period and shall be carried out
as expeditiously as possible and at times and in such manner so as to not interfere with any tenants,
occupants or licensees on the Property or the operation and maintenance of the Property. The
Purchaser covenants and agrees to promptly repair or pay the cost of repair of any damage
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occasioned during or resulting from such investigations, tests and inspections of the Property
conducted by the Purchaser or its representatives and to return the Property to substantially the
same condition it was in prior to such investigations, tests and inspections. The Vendor assumes no
responsibility for and the Purchaser shall indemnify and save harmless the Vendor from and against
any and all claims, demands, costs, damages, expenses and liabilities whatsoever arising from the
Purchaser's and/or its agents' or consultants' presence on the Property or the Purchaser's and/or its
agents' or consultants' activities on or in connection with the Property. The Vendor shall be entitled
to deduct from the Deposit paid by the Purchaser hereunder the amount of any losses, costs, claims,
third party actions, damages and expenses which the Vendor may suffer as a result of a breach of
this Section 5.03. The obligations in this Section 5.03 shall survive termination of this Agreement
for a period of two (2) years and shall not merge on Closing.
5.04 Intentionally Deleted.
5.05 The Vendor agrees to provide to the Purchaser, within five (5) days of the Execution Date, the
Property Documents listed in Schedule C. The Purchaser acknowledges and agrees that: (i) the
Property Documents are being provided to the Purchaser for informational purposes only and the
Vendor makes no representations or warranties whatsoever with respect to the content,
completeness or accuracy of the Property Documents, or the environmental or any other condition
of the Property; (ii) the Vendor shall not be liable to the Purchaser, its agents, employees or lending
institution in any way for any error, omission or inaccuracy contained in any Property Document;
and (iii) as of the Closing Date, the Purchaser shall become solely liable for all conditions and
Hazardous Substances and/or Contaminants existing at the Property, whether known or unknown
by the Purchaser, and whether or not such conditions or Hazardous Substances and/or
Contaminants are disclosed in the Property Documents or have been discovered by Purchaser in
the course of its due diligence or other investigations or inspections of the Property.
5.06 The Purchaser covenants and agrees that the Property Documents provided by the Vendor and any
and all third party reports, findings, recommendations, opinions and information resulting from the
Purchaser's due diligence ("Purchaser's Reports") and the information contained therein shall be
held in accordance with the confidentiality provisions set out in section 23. If this Agreement is
terminated for any reason, the Purchaser will promptly return to the Vendor all Purchaser's Reports
and Property Documents without keeping copies. The Purchaser shall deliver to the Vendor
forthwith following receipt, copies of any and all Purchaser's Reports the Purchaser commissions
or obtains during the course of its investigations.
5.07 In the absence of the Purchaser delivering: (i) an Environmental Objection; and (ii) a notice to
terminate the Agreement under Section 5.02(d), the Purchaser shall be conclusively deemed to
accept the Property in its As Is, Where Is condition, having waived all requisitions concerning any
matters relating to the Property, save for any valid requisition on title made prior to the expiry of
the Requisition Date, and the Purchaser shall accept full responsibility for all conditions related to
the Property, and the Purchaser shall comply, at its sole cost, with all orders relating to the condition
of the Property issued by any competent government Authority, court or administrative tribunal,
including any order issued against the Vendor including without limitation, any non-compliance
with Environmental Law or relating to the existence of any Hazardous Substance or Contaminant.
5.08 As an inducement to, and as further consideration for, the Vendor agreeing to sell the Property to
the Purchaser upon the terms and conditions set forth in this Agreement, the Purchaser covenants
and agrees that, effective as of the Closing Date, the Purchaser shall forever release and covenant
not to sue the Vendor and its affiliates, subsidiaries, related legal entities, employees, directors,
officers, appointees and agents with respect to anything arising out of the environmental or any
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other condition of the Property or the presence of Hazardous Substances or Contaminants in, on,
under, or emanating from or onto the Property, regardless of whether such environmental
conditions or the presence of Hazardous Substances or Contaminants is known or unknown by the
Purchaser and regardless of whether such condition is set forth in the Property Documents, the
Purchaser's Reports or any other report, document or information discovered during the course of
the Purchaser's due diligence or otherwise. The foregoing release and covenant not to sue shall
apply to all claims at law or in equity, including, but not limited to, claims or causes of action for
personal injury or death, property damage, statutory claims under Environmental Laws and claims
for contribution.
5.09 From and after the Closing Date, the Purchaser shall be responsible for, and hereby agrees to
indemnify, defend and save harmless the Vendor and its employees, directors, officers, appointees
and agents from, any and all costs (including legal, consultant and witness costs and fees), claims,
demands, actions, prosecutions, administrative hearings, fines, losses, damages, penalties,
judgments, awards (including awards of costs) and liabilities (including sums paid in settlement of
claims), that may arise as a result of the condition of the Property, the presence of Hazardous
Substances or Contaminants in, on or under the Lands, the Buildings or any structure or paved
surface, or in any environmental medium (including, but not limited to, the soil, groundwater, or
soil vapour on or under, or emanating from the Property), any order issued by any Authority in
connection with the condition of the Property, or any loss, damage, or injury caused either directly
or indirectly as a result of the condition of the Property including, without limitation, non-
compliance with Environmental Law or the existence of any Hazardous Substance or Contaminant.
Without limiting the generality of the foregoing, this indemnification shall specifically cover costs
incurred, from and after the Closing Date, in connection with any claim for personal injury and/or
death, property damage, investigation of site conditions and/or any clean-up, remedial, removal,
monitoring or restoration work required by any federal, provincial, or local government agency or
political subdivision because of the presence of Hazardous Substances, in, on or under the Lands,
the Buildings or any environmental medium, structure or paved surface or emanating therefrom.
5.10 The parties agree to execute and exchange at the time of Closing such further documentation as
either party reasonably requests, including, but not limited to, an agreement whereby the Purchaser
shall reaffirm the release, covenant not to sue and indemnifications regarding the condition of the
Property and environmental matters set forth in this Section 5 in the form attached hereto as
schedule F. Notwithstanding the foregoing, the release, covenant not to sue and indemnifications
set forth in this Section 5 shall become effective and enforceable automatically upon the
registration of the Transfer/Deed of Land in respect of the Property in favour of the Purchaser, and
Purchaser shall be bound by them, regardless of whether or not Purchaser executes any separate
instrument at the time of Closing.
5.11 Unless otherwise expressly set out herein, this Section 5 shall not merge but shall survive the
Closing Date and shall be a continuing obligation of the Purchaser.
SECTION 6
CLOSING CONDITIONS
6.01 The obligation of the Vendor to complete the Transaction is conditional upon fulfillment of each
of the following conditions on or before the Closing Date or any earlier date or time specified in
this Agreement:
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(a) the Vendor shall have obtained the Sale Approval pursuant to Section 7 of this Agreement;
(b) all of the terms, covenants and conditions of this Agreement to be complied with or
performed by the Purchaser shall have been complied with or performed in all material
respects at the times contemplated in this Agreement;
(c) the representations and warranties of the Purchaser set forth in this Agreement shall be true
and accurate in all material respects as if made as of the Closing;
(d) the Purchaser shall have executed all documents required to assume the obligations of the
Vendor pursuant to the Development Agreements, including all required Assignment and
Assumption Agreements; and
(e) all documents and deliveries required to be executed and/or delivered by the Purchaser
shall have been executed and delivered to the Vendor in accordance to this Agreement.
6.02 The conditions set forth in Section 6.01 are for the sole benefit of the Vendor and may be waived
in whole or in part by the Vendor, or by its solicitors on its behalf, in the sole and absolute discretion
of the Vendor by written notice to the Purchaser. The conditions are conditions precedent to the
obligation of the Vendor to complete the herein Transaction on the Closing Date.
6.03 If a condition set forth in Section 6.01 is not fulfilled within the applicable time period, if any, and
the Vendor fails to notify the Purchaser or the Purchaser's solicitors that such condition has been
waived or the time period for compliance has been extended within the applicable time period
allowed, if any (save and except for any condition which is to be satisfied on the Closing in
connection with which it is hereby agreed that upon successful completion of the Transaction, such
condition shall be deemed to have been satisfied), at the Vendor's sole option, this Agreement shall
be null and void, notwithstanding any intermediate act or negotiations, and (i) in the event the
Agreement is terminated as a result of the non -fulfilment of the condition set forth in Section
6.01(a), neither the Vendor nor the Purchaser shall, subject to Section 5.03, be liable to the other
for any loss, costs or damages, and the Deposit shall, subject to Section 5.03, be returned to the
Purchaser with interest and without deduction, and (ii) in the event the Agreement is terminated as
a result of the non -fulfilment of any of the conditions set forth in Section 6.01(b), 6.01(c) or 6.01(d),
the Deposit shall be forfeited to the Vendor as liquidated damages and without derogating from any
claims or causes of action the Vendor may have pursuant to this Agreement and at law against the
Purchaser arising from the Purchaser's default therein.
6.04 The obligation of the Purchaser to complete the Transaction is conditional upon fulfillment of the
following conditions on or before the expiration of the Inspection Period:
(a) the City has obtained the City Sale Approval, which approval may be provided in the sole
and unfettered discretion of the City and which the Vendor acknowledges may be
arbitrarily and unreasonably withheld.
6.05 The condition set forth in Section 6.04 is for the sole benefit of the Purchaser and may be waived
in whole or in part by the Purchaser, or by its solicitors on its behalf, in the sole and absolute
discretion of the Purchaser by written notice to the Vendor. The condition is a condition precedent
to the obligation of the Purchaser to complete the herein Transaction on the Closing Date.
6.06 If the condition set forth in Section 6.04 is not fulfilled within the applicable time period and/or the
Purchaser fails to notify the Vendor or the Vendor's solicitors that such condition has been waived,
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this Agreement shall be null and void, and the Deposit shall, subject to Section 5.03, be returned
to the Purchaser with interest and without deduction.
SECTION 7
SALE APPROVAL
7.01 The obligation of the Vendor to complete the Transaction is conditional upon fulfillment of the
following condition: within ninety (90) days from the Offer Date, the Vendor shall have obtained
the Sale Approval, which approval the Purchaser acknowledges may be arbitrarily and
unreasonably withheld. The Vendor shall notify the Purchaser if and when such approval is
obtained, and the date of such notification if obtained shall be the date of commencement of the
Inspection Period.
7.02 The Purchaser agrees that should the Vendor be unable to satisfy the condition set out in Section
7.01 within the said ninety (90) day period, then the Vendor may, at its option and in its sole
discretion, extend this time period for an additional sixty (60) days by notice in writing to the
Purchaser within the initial ninety (90) day period.
7.03 The Purchaser acknowledges that any Sale Approval that the Vendor obtains with respect to the
Property may be subject to the limitations stated therein, including but not limited to a limitation
that such approval shall be valid for a specified period of time from the date of such Sale Approval
(the "Approval Term"), in which event such Sale Approval shall cease to be valid on the date
upon which the Approval Term concludes (the "Expiry Date"), or on such date that such other
limitation(s), if any, is/are not met and satisfied. In the event that the Vendor shall have obtained a
Sale Approval for the Property in satisfaction of the condition set out in Section 7.01, and in the
event that the completion of the Transaction has not occurred on or before the Expiry Date set out
in such Sale Approval or such date that such other limitation(s), if any, is/are not met and satisfied,
notwithstanding any waiver of the condition set out in Section 7.01, this Agreement shall then be
null and void, the Deposit and any interest accrued thereon shall, subject to Section 5.03, be
returned to the Purchaser and neither the Vendor nor the Purchaser shall, subject to Section 5.03,
be liable to the other for any loss, costs or damages.
SECTION 8
CLASS EA REQUIREMENTS / ABORIGINAL CLAIMS
8.01 The obligation of the Vendor to complete the Transaction is conditional upon fulfillment of the
following condition on or before the Closing Date: the Vendor shall have completed the Class EA
for the Property and the Transaction (collectively, the "Class EA Requirements"). For purposes
of this condition, the Class EA Requirements shall, without limitation, include and be deemed to
include the following specific requirements:
(a) the requirements of the Environmental Assessment Act, R.S.O. 1990, c.E. 18, as approved,
amended, or renewed from time to time, as they apply to the Property and the Transaction
(the "Environmental Requirements"); and
(b) the requirements of the Standards & Guidelines for Conservation of Provincial Heritage
Properties issued by the Ministry of Tourism, Culture and Sport pursuant to Section 25.2
of the Ontario Heritage Act, R.S.O. 1990, c.O.18, as approved, amended, or renewed from
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time to time, as they apply to the Property and the Transaction (the "Heritage
Requirements").
8.02 Notwithstanding any other provision of this Agreement, the completion of the Transaction is
subject to continuing compliance to the Closing Date with all Class EA Requirements. In the event
that prior to the Closing Date:
(a) any goveming Authority makes or issues, or the Vendor receives any notice or
communication from any governing Authority that it is considering whether to make or
issue, any order or directive pursuant to the Class EA Requirements that necessitates that
the Vendor, in addition to the actions and measures taken aforesaid, take other or different
actions or measures to comply with the Class EA Requirements (including, without
limitation, an order or directive requiring the Vendor to comply with Part II of the
Environmental Assessment Act);
(b) a written request has been made to the Minister of the Environment, of which the Vendor
has notice, that other or different measures be taken to comply with the Class EA
Requirements;
then the Vendor may, at its option and in its sole discretion, extend the Closing Date for at least an
additional thirty (30) days (the "Initial Class EA Extension Period") by notice in writing to the
Purchaser during which time the Vendor shall:
(c) use reasonable efforts to determine whether the request in subsection (b) above has been
satisfied or has been refused; and
(d) at its option and in its sole discretion, either:
(i)
comply with such order or directive (as the same may be modified or withdrawn)
at its own expense, in which event the Vendor may extend the Closing Date up to
(but no more than) three times, for a further period of thirty (30) days each (for a
maximum of ninety (90) days in the aggregate) (collectively, the "Further Class
EA Extension Period"); or
(ii) within the Initial Class EA Extension Period or at any time within the Further Class
EA Extension Period, terminate this Agreement by written notice to the Purchaser,
in which case this Agreement shall be null and void and of no further force and
effect and the Deposit and any interest accrued thereon shall, subject to Section
5.03, be returned to the Purchaser and neither party shall be further liable to the
other pursuant to this Agreement other than the Purchaser's obligations pursuant
to Section 5.03 of this Agreement.
8.03 Notwithstanding any other provision of this Agreement, if at any time prior to the Closing Date the
Vendor receives notification or otherwise becomes aware of any claim or potential claim
whatsoever for an interest in respect of the Property, by any First Nation or other aboriginal group
or individual, in relation to any constitutional right, treaty right, land claim, surrender agreement
or consultation right, including, without limitation, an interest in the title to the Property, a right to
the use of the whole or any part of the Property, a restriction on the use of the Property or any part
thereof for any purpose, a restriction on access to the Property or any part thereof, a claim for
compensation, arising out of any interest or claimed interest in the Property or a right of
consultation in relation to the Property, then the Vendor may at its option and in its sole and
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unfettered discretion extend the Closing Date for at least an additional thirty (30) days (the "Initial
Extension Period") by notice in writing to Purchaser during which time the Vendor shall:
(a) determine in its sole and unfettered discretion if such claim, potential claim or interest is
capable of being satisfied or whether appropriate releases can be obtained from all
interested parties to enable the Vendor to complete the sale of the Property to the Purchaser
by the Closing Date free and clear of any such claim, potential claim or interest;
(b) enter into arrangements which enable the Vendor to complete the sale of the Property in
accordance with Section 8.03(a), for which purpose it may extend the Closing Date up to
(but no more than) three times, for a further thirty (30) days each (for a maximum of ninety
(90) days in the aggregate) (collectively, the "Further Extension Period"); or
(c) within the Initial Extension Period or at any time within the Further Extension Period, have
the right to terminate this Agreement by written notice to the Purchaser in which case the
Agreement shall be null and void and of no further force and effect and neither party shall
be further liable to the other pursuant to this Agreement other than the Purchaser's
obligations pursuant to Section 5.03 of this Agreement.
8.04 If at any time prior to Closing, the Vendor receives notification or otherwise becomes aware of any
requirements imposed by an Authority, including without limitation any additional Heritage
Requirements, not otherwise contemplated in this Section 8 and with which the Vendor must
comply as a condition of completing the Transaction, then the Vendor may at its option and in its
sole and unfettered discretion extend the Closing Date up to three (3) times for a period of thirty
(30) days each time (maximum ninety (90) days) by notice in writing to Purchaser during which
time the Vendor shall:
(a) determine in its sole and unfettered discretion if such requirement can be satisfied so as to
enable the Vendor to complete the sale of the Property to the Purchaser by the Closing
Date; or
(b) have the right, with or without a determination pursuant to subsection (a) above, to
terminate this Agreement by written notice to the Purchaser in which case the Agreement
shall be null and void and of no further force and effect and the Deposit plus any interest
accrued thereon shall, subject to Section 5.03, be returned to the Purchaser and neither
party shall be further liable to the other pursuant to this Agreement other than the
Purchasers obligations pursuant to Section 5.03 of this Agreement.
SECTION 9
RISK
9.01 Until completion of this Agreement on the Closing Date, the Property shall be and remain at the
risk of the Vendor, except as otherwise provided in Section 5. The Purchaser acknowledges that
the Vendor, in respect of damage to the Property, is self-insured. In the event of damage to the
Property on or before the Closing Date (other than damage occasioned during or resulting from
the Purchaser's and/or its agents, consultants or representatives entries and/or activities on or to the
Property, in which event Section 5.03 shall govern) (the "Pre -Closing Damage"), the Vendor may
elect (i) to forthwith repair the Property to the same state and condition as it was in at the Offer
Date in which event the Purchaser will complete the Transaction without an abatement in the
Purchase Price; or (ii) to reduce the Purchase Price by an amount equal to the cost required to
complete the repair as estimated by an independent qualified architect or engineer jointly retained
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by the Vendor and the Purchaser, acting reasonably and at arm's length in which event the
Purchaser will complete the Transaction and accept a price reduction equal to such cost, or (iii) to
terminate this Agreement in which case the Deposit shall, subject to Section 5.03, be immediately
returned to the Purchaser, with interest and without deduction, and neither party shall, subject to
Section 5.03, have any further rights or obligations hereunder.
9.02 From and including the Closing Date, the Property shall be entirely at the risk of the Purchaser and
the Purchaser shall accept and assume any and all responsibilities and liabilities arising out of or in
any way connected with the Property whether they arose before, on or after the Closing Date and,
without being limited by the foregoing, any state, nature, quality or condition in, on, under or near
the Property existing as of the Closing Date, whenever and however arising, whether known or
unknown and whether environmental or otherwise, and whether such responsibilities and liabilities
are imposed by law, equity or any governing Authority.
SECTION 10
VENDOR'S WARRANTIES, REPRESENTATIONS AND COVENANTS
10.01 The Vendor represents and warrants to the Purchaser that the Vendor is not a non-resident of
Canada within the meaning and intended purpose of Section 116 of the Income Tax Act, R.S.C.
1985, c.1 (5th Supp.).
10.02 Any information provided by the Vendor or its agents, including the Property Documents, and any
comments made by the Vendor, its employees, officers, directors, appointees, agents or consultants
are for the assistance of the Purchaser in allowing it to make its own inquiries. The Vendor makes
no representations or warranties as to, and takes no responsibility for, the accuracy or completeness
of the Property Documents or any other information it has provided to the Purchaser.
SECTION 11
PURCHASER'S WARRANTIES, REPRESENTATIONS AND COVENANTS
11.01 The Purchaser represents and warrants to the Vendor that the Purchaser does not have a conflict of
interest with the Vendor or OILC or with any of their respective directors, officers, appointees,
employees or agents. The Purchaser agrees to provide a Statutory Declaration in the form attached
hereto as Schedule D at the time of execution by the Purchaser of this Agreement. The Purchaser
acknowledges that in the event that the information upon which the Statutory Declaration was
provided has changed, the Purchaser shall inform the Vendor of such change up to and including
the Closing Date.
11.02 The Purchaser represents and warrants to the Vendor that the execution, delivery and performance
by the Purchaser of this Agreement, and each agreement to be executed and delivered pursuant
hereto at Closing, to which the Purchaser is a party are within the Purchaser's legal power and
jurisdiction and, subject to the Purchaser obtaining the City Sale Approval in accordance with the
condition set forth in Section 6.04, will have been duly authorized and approved by all necessary
action on the part of the Purchaser.
11.03 The Purchaser represents and warrants to the Vendor that this Agreement has been, and, subject to
the Purchaser obtaining the City Sale Approval in accordance with the condition set forth in Section
6.04, each agreement to be executed and delivered by the Purchaser pursuant to this Agreement,
will be duly and validly executed and delivered by the Purchaser, and this Agreement constitutes,
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and each agreement to be executed and delivered pursuant hereto at Closing, when so executed and
delivered will constitute, the legal, valid and binding obligation of the Purchaser, enforceable
against the Purchaser in accordance with their respective terms.
11.04 The Vendor shall deliver and the Purchaser shall accept possession of the Property on the Closing
Date in an As Is Where Is condition, subject to: (i) the Lease(s); (ii) the Development Agreements;
and (iii) the Permitted Encumbrances.
11.05 As of the Closing Date, the Purchaser shall assume and be responsible as owner for the management
and administration of the Property and the Vendor shall have no further responsibility whatsoever
therefor.
11.06 Without limiting the generality of the foregoing, the Purchaser shall comply with the terms of the
Permitted Encumbrances, any agreement entered into by the Vendor with any Authority relating to
the Property, all other agreements relating to public utilities and municipal services, the Land Use
Regulations, all relevant municipal by-laws and all registered restrictions. The Purchaser further
agrees and acknowledges that it shall be bound by any contractual obligations which the Vendor
may have entered into concerning the Property prior to the Closing Date.
SECTION 12
SEVERANCE
12.01 The Purchaser acknowledges that the Vendor will invoke "Crown Right" to sever property (i.e. the
ability of the Crown to divide land referenced under the subdivision control provisions of the
Planning Act) in connection with the Transaction.
SECTION 13
REFERENCE PLAN(S)
13.01 The parties acknowledge that the Property may not be conveyed until such time as a reference
plan(s) has been deposited with the Durham Land Registry Office. The Vendor agrees to prepare
and deposit in the Durham Land Registry Office, a reference plan(s) of survey of the Lands. The
Purchaser shall provide the Vendor with a draft reference plan for review prior to the deposit of
such reference plan. The Purchaser shall pay, as an adjustment on Closing, the cost of preparing
the above described reference plan(s) up to a maximum of $5,000.00. The Purchaser acknowledges
that the southern boundary of the Lands that abut the 407 ETR corridor shall be established using
the most current reference plans deposited by the Ministry of Transportation. The area of the Lands
shall be conclusively determined by the above described reference plan.
SECTION 14
TITLE
14.01 The Purchaser shall have until the day which is twenty (20) Business Days before the Closing Date
(the "Requisition Date") to investigate title to the Property at the Purchaser's expense. The
Purchaser agrees not to call for the production of any title deed, abstract, survey or other evidence
of title to the Lands except such as are in the possession of OILC or the Vendor.
14.02 On the Closing Date, the Purchaser shall accept title to the Property in an As Is Where Is condition
subject to the following:
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(a) the Land Use Regulations;
(b) the Development Agreements and notices thereof;
(c) the Lease(s);
(d) all Community Use Land obligation pursuant to the Seaton CSA; and
(e) the Permitted Encumbrances.
The Purchaser agrees to satisfy itself with respect to compliance with all such agreements,
easements, restrictions or covenants, encumbrances and regulations referred to herein and agrees
that the Vendor shall not be required to provide any evidence of compliance with same.
14.03 If, prior to the expiry of the Requisition Date, the Purchaser furnishes the Vendor in writing with a
valid objection to title which the Vendor is unwilling or unable to remove, remedy and satisfy and
which the Purchaser will not waive, this Agreement shall be terminated notwithstanding any
intermediate acts or negotiations with respect to such objection, the Deposit shall, subject to Section
5.03, be returned to the Purchaser with interest and without deduction and the Vendor shall not be
liable for any costs or damages suffered by the Purchaser arising out of such termination or
otherwise out of this Agreement.
14.04 The Vendor hereby consents to the relevant Municipality releasing to the Purchaser any information
in its records in connection with the Property and the Vendor agrees to execute and deliver such
necessary authorizations as the Purchaser may reasonably require in this regard but any such
authorization shall specifically prohibit the right of or a request for an inspection of the Property
by the Municipality or any other Authority.
SECTION 15
NO ASSIGNMENT ETC.
15.01 The Purchaser shall not assign or register this Agreement, or any assignment of this Agreement, or
any part of either, or register a caution in relation thereto, without, in each instance, obtaining the
prior written consent of the Vendor, which consent may be arbitrarily and unreasonably withheld.
15.02 If the Vendor consents to an assignment of this Agreement to a third party (the "Assignee"), the
Purchaser shall cause the Assignee and the Purchaser, to covenant in writing in favour of the
Vendor to be jointly and severally bound by and to jointly and severally perform their respective
obligations of this Agreement. The Purchaser shall not be released from its liabilities and
obligations hereunder in the event of an assignment to an Assignee.
15.03 In the event of any assignment of this Agreement to an Assignee, such Assignee shall provide a
similar representation, warranty and Statutory Declaration as required of the Purchaser in Section
11.01
SECTION 16
DEVELOPMENT AGREEMENTS
16.01 The Purchaser agrees that at Closing it shall, as part of its acquisition of the Property, assume the
obligations of the Vendor regarding the Property pursuant to the Development Agreements, and it
covenants to make all payments required by such Development Agreements and provide any
-21 -
Development Agreement Security required pursuant to any such Development Agreement, whether
such security is to be lodged with an Authority or otherwise, upon the execution of any applicable
Assignment and Assumption Agreement with the intent that the Purchaser shall be treated equally
with the other Private Landowners, except as explicitly provided in the Development Agreements.
16.02 The Purchaser acknowledges that the Development Agreements may have been registered against
title to the Property and further acknowledges that the development of the Property is subject to the
Development Agreements.
16.03 The Purchaser acknowledges and agrees that the Vendor has made payments and incurred expenses
which are subject to recovery by the Vendor through the issuance of Development Charge Credits
pursuant to the terms and conditions of the Phase 1 RFEA. The Purchaser agrees that at Closing,
and as a condition of Closing, that it shall reimburse the Vendor for all costs that the Vendor has
incurred which would be recoverable by the Vendor in the form of Development Charge Credits to
be issued pursuant to the Phase 1 RFEA in respect of the Lands. The Purchaser acknowledges and
agrees that the Seaton Trustee shall determine the amount Development Charge Credits entitlement
earned and attributable to the Lands based on the Developable Area Share of the Lands in the
Seaton Community, whether or not the Lands are within the Phase 1 Lands, and shall take into
account indexing as provided for in the Phase 1 RFEA. The payment from the Purchaser to the
Vendor pursuant to this section shall be referred to herein as the "DC Credit Recovery Payment".
16.04 The Purchaser acknowledges that the Pickering FIA creates obligations with regard to the funding
of certain infrastructure in Seaton under the jurisdiction of the City. The Purchaser covenants and
agrees that it will abide by the terms and conditions of the Pickering FIA, and will execute any
Assignment and Assumption Agreement as reasonably required by the Vendor or the City.
Furthermore, the Purchaser acknowledges that the infrastructure projects to be funded pursuant to
the Pickering FIA are Cost Shared Services under the Seaton CSA, and the costs of which are to be
cost shared pursuant to the terms of the Seaton CSA.
16.05 The Purchaser acknowledges that the Lands include Phase 1 RFEA Lands and, therefore, prior to
the issuance of a building permit with respect to the development of such lands, unless otherwise
provided for in a front ending agreement relating to Subsequent Phase development, the Purchaser
will have to pay, in addition to any Attribution Development Charges payable with respect to the
development of the Lands, the Attribution Prepayment applicable to the Property. The Phase 1
RFEA provides that Development Charge Credits earned by virtue of the payment of the
Attribution Prepayment are not able to be utilized to satisfy the Attributions Development Charges
payable upon the issuance of building permits for lands that are Phase 1 RFEA Lands, and further
such Development Charge Credits will be administered by the Seaton Trustee.
16.06 The Purchaser acknowledges that on Closing the Purchaser will be a Provincial Successor (as such
term is defined in the Seaton CSA). Furthermore, by virtue of being a Provincial Successor the
Purchaser acknowledges and agrees that at Closing it will have to make a payment to the Seaton
Trustee in an amount to be determined by the Seaton Trustee pursuant to the terms of the Seaton
CSA, which will bring the Purchaser into a position in which the Purchaser will have funded the
costs of Regional Infrastructure pursuant to the Phase 1 RFEA on the same basis as the other Private
Landowners within the Seaton Community, this payment to be referred to herein as the "Private
Landowner Equivalency Payment".
16.07 The Purchaser acknowledges and agrees that at Closing, it will make a payment to the Vendor in
an amount equal to the portion of the costs incurred by the Vendor for Cost Shared Services
applicable to the Lands up to the Closing Date as confirmed by the Seaton Trustee, unless otherwise
- 22 -
provided for herein, whether on a Developable Area Share or Drainage Area share or otherwise as
applicable (referred to herein as `'Servicing Costs").
16.08 The Purchaser acknowledges that the Lands include Community Use Lands and that such
Community Use Lands are to be transferred to an Authority or the Seaton Trustee pursuant to the
terms of the Seaton CSA. The Purchaser acknowledges and agrees that it will abide by the terms
of the Seaton CSA with regard to such Community Use Lands which requires that they be conveyed
to an Authority or the Seaton Trustee, and further that the Assignment and Assumption Agreement
with regard to the Seaton CSA will specifically provide for such transfer of the Community Use
Lands.
16.09 The Seaton -Durham CSA provides for the recovery of certain costs of the construction of Regional
Infrastructure that relate to the over -sizing of such services for which Development Charge Credits
are not available. The Purchaser acknowledges that the Vendor has not made and is not making
any representations or warranties that any such construction costs will be recovered from the
Durham Owners.
SECTION 17
PREPARATION OF TRANSFER/DEED DOCUMENTS AND FEES/COSTS
17.01 The Transfer/Deed of the Lands will be prepared by the Vendor, except for the Affidavit of
Residence and Value of the Consideration ("Land Transfer Tax Affidavit"), which will be
prepared by the Purchaser.
17.02 The Purchaser shall pay its own legal costs and registration costs. The Purchaser shall be
responsible for the payment of any applicable Land Transfer Tax and registration fees and any other
taxes and fees which may be payable in connection with the registration of the transfer/deed of the
Property.
SECTION 18
TENDER
18.01 Any tender of money or documents pursuant to this Agreement may be made on the Vendor or the
Purchaser or their respective solicitors. Money must be tendered in Canadian funds by electronic
wire, bank draft or negotiable cheque certified by a Canadian chartered bank, trust company, or
credit union. The Vendor and the Purchaser acknowledge and agree that insofar as the tender of
any documents to be electronically registered is concerned, the tender of same will be deemed to
be effective and proper when the solicitor for the party tendering has completed all steps required
by Teraview in order to complete this Transaction that can be performed or undertaken by the
tendering party's solicitor without the cooperation or participation of the other party's solicitor,
and specifically when the tendering party's solicitor has electronically "signed" the Transfer/Deed
of Land and any other closing document, if any, to be electronically registered for completeness
and granted access to the other party's solicitors to same, but without the necessity for the tendering
party's solicitor actually releasing such documents to the other party's solicitor for registration.
_'73_
SECTION 19
ADJUSTMENTS
19.01 Adjustments between the Vendor and the Purchaser shall be made on the Closing Date for taxes,
local improvement rates, utility costs, rents, legal costs and other matters or items which are
ordinarily the subject of adjustment for the purchase and sale of a property similar to the Property
in the Province of Ontario. Such Adjustments shall be made on the basis that, except as may be
otherwise expressly provided for in this Agreement:
(a) the Vendor shall be responsible for all expenses and liabilities and entitled to all income
from the Property up to the Closing Date; and
(b) the Purchaser shall be responsible for all expenses and liabilities and entitled to all income
from the Property from and including the Closing Date.
19.02 Adjustments that cannot be determined on the Closing Date shall be determined by the parties as
soon after the Closing Date as is reasonably possible. Any amounts payable by one party to the
other, as determined by the parties, acting reasonably, shall be paid within thirty (30) days of the
request for such payment. On the Closing Date, the Vendor and the Purchaser shall exchange
undertakings to re -adjust the foregoing items, if necessary.
19.03 All Adjustments to be made under Section 19.01 shall be completed on or before the date which is
no later than six (6) months from the Closing Date and no re -adjustment may be made by either
party thereafter.
SECTION 20
ELECTRONIC REGISTRATION
20.01 Where the Property is in an area where electronic registration is mandatory and the Transaction
will be completed by electronic registration pursuant to Part III of the Land Registration Reform
Act, R.S.O. 1990, c. L.4, and the Electronic Registration Act, S.O. 1991, c.44, and any amendments
thereto, the Vendor and Purchaser acknowledge and agree that the exchange of closing funds, non -
registrable documents and other closing deliverables provided for herein and the release thereof to
the Vendor and Purchaser will:
(a) not occur at the same time as the registration of the transfer/deed (and any other documents
intended to be registered in connection with the completion of this Transaction); and
(b) be subject to conditions whereby the lawyer(s) receiving any of the closing deliverables
will be required to hold same in escrow and not release same except in accordance with the
terms of a document registration agreement between the said lawyers, the form of which is
as recommended from time to time by the Law Society of Upper Canada (the "Document
Registration Agreement").
SECTION 21
CLOSING DELIVERABLES
21.01 Subject to the provisions of this Agreement, the Vendor covenants that it shall execute or cause to
be executed and shall deliver or cause to be delivered to the Purchaser or the Purchaser's solicitors
on or before the Closing Date, each of the following:
- 24 -
(a) possession of the Property in an As Is Where Is condition, subject to the Leases, and subject
to the rights of others as set out in the Permitted Encumbrances;
(b) an assignment of the Lease, whether complete or partial, the Development Agreements and
Permitted Encumbrances, as applicable;
(c) notice to the tenant pursuant to the Lease informing it of the sale of the Lands and directing
it to make future rent payments to the Purchaser;
(d) an executed Transfer/Deed of Land in registrable form duly executed by the Vendor in
favour of the Purchaser (save for any Land Transfer Tax Affidavit);
(e) an undertaking to re -adjust the statement of Adjustments, if necessary, upon written
demand;
(f) a direction regarding the payment of funds;
(g) statement of Adjustments;
(h) Document Registration Agreement as set out in Schedule E; and
(i) such other deeds, conveyances and other documents as the Purchaser or its solicitors may
reasonably require in order to implement the intent of this Agreement.
21.02 Subject to the provisions of this Agreement, the Purchaser covenants that it shall execute or cause
to be executed and shall deliver or cause to be delivered to the Vendor or the Vendor's Solicitors
on or before the Closing Date:
(a) confirmation of wire transfer for the balance of the Purchase Price and Adjustments due on
the Closing Date;
(b) confirmation of wire transfer for any Development Agreement Payment payable to the
Vendor, including the DC Credit Recovery Payment, the Private Landowner Equivalency
Payment, and Servicing Costs;
(c) a certified cheque, bank draft or confirmation of wire transfer for any Development
Agreement Payment payable to the applicable trustee under a Development Agreement;
(d) confirmation of delivery of Development Agreement Security to any applicable authority
or trustee under a Development Agreement, if applicable
(e) an undertaking to re -adjust the statement of Adjustments, if necessary, upon written
demand;
(f)
(g)
HST Declaration and Indemnity, as contemplated in Section 4, if applicable;
an updated Statutory Declaration in the form set out in Schedule D is required in the event
that there have been any changes to the information contained in the Statutory Declaration
provided to the Vendor prior to the Execution Date pursuant to Section 11.01;
(h) an updated Statutory Declaration in the form set out in Schedule D is required in the event
that there have been any changes to the information contained in the Statutory Declaration
- 25 -
provided to the Vendor prior to the date of execution of this Agreement pursuant to Section
11.01;
(i) Document Registration Agreement in the form attached as Schedule E;
(j) an Assignment and Assumption Agreement for the Leases;
(k) an Assignment and Assumption Agreement for each of the Development Agreements, in
substantially the same forms as were delivered as part of the closing of the Prior Purchased
Lands;
(1) a Participation Agreement in form attached hereto as schedule G;
(m) an Assumption Agreement for the Permitted Encumbrances, as applicable;
(n) the Purchaser's Closing Agreement in the form attached hereto as schedule F;
(o) such other deeds, conveyances, resolutions and other documents as the Vendor or its
solicitors may reasonably require in order to implement the intent of this Agreement.
SECTION 22
NOTICE
22.01 Any notice under this Agreement is sufficiently given if delivered personally or if sent by ordinary
prepaid mail or prepaid courier or electronic facsimile machine (including e-mail) addressed to the
Purchaser at:
The Corporation of the City of Pickering
One The Esplanade
Pickering
Ontario, L IV 6K7
Attention: Paul Bigioni, Director, Corporate Services and City Solicitor
Telephone: (905) 420-4660 ext. 2048
Email: pbigioni(pickering.ca
and to the Purchaser's Solicitors at:
Torys LLP
79 Wellington Street West
Suite 3000
Box 270, TD Centre
Toronto
Ontario, M5K 1N2
Attention: Dan Ford / Andy Gibbons
Telephone: (416) 865-7372 / (416) 865-8226
Email: dford(q torys.com / agibbons(r7torys.com
- 26 -
and to the Vendor at:
c/o Ontario Infrastructure and Lands Corporation
Sales and Acquisitions
1 Dundas Street West
Suite 2000
Toronto, ON M5G 2L6
Attention: Vice President, Sales and Acquisitions
Facsimile: 416-327-3942
And:
Attention: Director, Legal Services (Real Estate and Leasing)
777 Bay Street,
Suite 900
Toronto, ON M5G 2C8
Facsimile: 416-326-2854
or at such other addresses as the Vendor and the Purchaser may designate from time to time. Any
such notice shall be conclusively deemed to have been given and received upon the same day if
personally delivered or sent by facsimile or email, or, if mailed, three (3) Business Days after the
same is mailed. Any party may, at any time by notice given in writing to the other party, change
the address for service of notice on it.
SECTION 23
CONFIDENTIALITY
23.01 The Vendor and Purchaser agree to take all necessary precautions to maintain the confidentiality
of the terms and conditions contained herein. The parties acknowledge that this Agreement and any
information or documents that are provided hereunder may be released pursuant to the applicable
provisions of the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, as
amended and the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990,
c. M.56, as amended and Open Data may be released pursuant to the Open Data Directive. This
acknowledgment shall not be construed as a waiver of any right to object to the release of this
Agreement or of any information or documents.
23.02 The Purchaser agrees to ensure that the Purchaser, its officers, employees, agents and sub-
contractors shall, subject to Section 23.01, maintain the confidentiality and security of all materials
and information which is the property of the Vendor and in the possession or under the control of
the Purchaser pursuant to this Agreement. The Purchaser agrees to ensure that the Purchaser, its
officers, employees, agents and sub -contractors shall not directly or indirectly disclose or use, either
during or following the term of this Agreement, except where required by law, any material or
information belonging to the Vendor pursuant to this Agreement, without first obtaining the prior
written consent of the Vendor for such disclosure or use and in the event of termination of this
Agreement, the Purchaser will be responsible for returning all such documentation and information
to the Vendor without making copies.
_?7_
SECTION 24
GENERAL
24.01 Time shall in all respects be of the essence of this Agreement, provided that the time for doing or
completing any matter provided for in this Agreement may be extended or abridged by an
agreement in writing, signed by the Vendor and the Purchaser or by an agreement between their
respective solicitors who are hereby expressly authorized in this regard. If anything in this
Agreement is to be done on a day which is not a Business Day, the same shall be done on the next
succeeding Business Day.
24.02 This Agreement shall be binding upon, and enure to the benefit of, the Vendor and the Purchaser
and their respective successors and permitted assigns. The Vendor and the Purchaser acknowledge
and agree that the representations, covenants, agreements, rights and obligations of the Vendor and
the Purchaser under this Agreement shall not merge on the completion of this Transaction, but shall
survive completion and remain in full force and effect and be binding upon the parties, save and
except as may be otherwise expressly provided for in this Agreement.
24.03 Whenever the singular is used in this Agreement, it shall mean and include the plural and whenever
the masculine gender is used in this Agreement it shall mean and include the feminine gender if the
context so requires.
24.04 This Agreement constitutes the entire agreement between the parties and there is no representation,
warranty, collateral agreement or condition affecting this Agreement or the Property, except as
specifically set forth in this Agreement. This Agreement may not be modified or amended except
by an instrument in writing signed by the parties hereto.
24.05 This Agreement and the rights and obligations of the Vendor and the Purchaser shall be determined
in accordance with the laws of the Province of Ontario.
24.06 Wherever this Agreement makes reference to a requirement for the consent or approval of the
Vendor, such consent must be prior written consent and may be arbitrarily and unreasonably
withheld in the sole and absolute discretion of the Vendor.
24.07 No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver
of any other provision (whether or not similar) nor shall any waiver constitute a continuing waiver
unless otherwise expressed or provided.
24.08 If any provision of this Agreement or part thereof or the application thereof to any person or
circumstance, to any extent, shall be determined to be invalid or unenforceable, the remainder of
this Agreement or the application of such provisions or part thereof to any person, party or
circumstance other than those to which it is held invalid or unenforceable shall not be affected
thereby. Each covenant, obligation and agreement in this Agreement shall be separately valid and
enforceable to the fullest extent permitted by law.
24.09 Each of the parties hereto shall from time to time hereafter and upon any reasonable request of the
other and in such form as may be satisfactory to both parties hereunder, execute and deliver, make
or cause to be made all such further acts, deeds, assurances and things as may be required or
necessary to more effectually implement and carry out the true intent and meaning of this
Agreement.
_ 18 _
SECTION 25
IRREVOCABLE PERIOD
25.01 Signature of this Agreement by the Purchaser and the submission thereof to the Vendor constitutes
an offer under seal, which is irrevocable for twenty-five (25) days from the date it is submitted to
the Vendor and open for acceptance by the Vendor during said twenty-five (25) day period. This
offer, once accepted on the Execution Date, constitutes a binding contract of purchase and sale.
This offer may be made and accepted by electronic transmission, including electronic signature
provided that the original hard copy, with original signatures is received by both parties within five
(5) days of the electronic acceptance. The Purchaser, in submitting this offer, acknowledges that
there has been no promise or representation or assurance given to the Purchaser that any of the
terms and conditions in this offer are or will be acceptable to the Vendor.
[no further text on this page]
- 29 -
IN WITNESS WHEREOF the parties hereto have executed this Agreement as evidenced
by their properly authorized officers in that behalf as of the day and year first above written.
OFFERED BY the Purchaser this (Z day of19.
THE CORPORATION OF 1HE CITY OF
PICKERING
By: jj'
Name:—r04.�je�
Title: < t1it�e O242fie
rxvl�5/1-61-
By:
Name:
Title:
I/We have authority to bind the
Corporation
ACCEPTED BY the Vendor this y day of 0014M, , 2019.
HER MAJESTY THE QUEEN IN RIGHT
OF ONTARIO as represented by
THE MINISTER OF GOVERNMENT AND
CONSUMER SERVICES as represented by
ONTARIO INFRASTRUCTURE AND
LANDS CORPORATION
By:
By:
Name.
Title:
U
/
viv
Name: MI14 / 74 G
Title: bi -e
Authorizing Signing Officer
SCHEDULE A-1
DESCRIPTION OF LANDS
PART LOT 22, CONCESSION 5 PICKERING
(Areas to be determined upon completion of the reference plan prepared pursuant to Section 13.01, and in
accordance with the mapping at Schedule A-2)
3 8997-2 001 28267743.1
SCHEDULE A-2
SKETCH OF LANDS
Sea:on Lands - Bundle 6 Transaction 5
SCHEDULE B
PERMITTED ENCUMBRANCES
(a) General Encumbrances:
(i)
the Leases and any notices of such lease registered on title to the Lands, including
all easements, rights of way, restrictions, restrictive covenants, servitudes and
other similar rights in land contained in the Lease, which exist as of the Closing
Date and any leasehold mortgages or security interests relating to tenants or the
tenants' interest in respect thereof and which do not encumber the interest of the
landlord thereunder;
(ii) liens for real property taxes (which term includes charges, rates and assessments)
or charges for electricity, power, gas, water and other services and utilities in
connection with the Property or for construction in connection with the Property
for amounts the payment of which is not yet due or delinquent;
(iii) any easements, rights of way, restrictions, building schemes, licences, restrictive
covenants and servitudes, rights of access or use, airport zoning regulations and
other similar rights in land (including, without limitation, rights of way and
servitudes for sewers, drains, gas and water mains, electrical power, telephone and
cable conduits, poles, wires or cables) granted to, reserved or taken by any person
which do not, in the aggregate, materially and adversely impair the use or
marketability of any of the Property for the purposes for which it is presently held,
and any rights reserved or vested in any Authority or public or private utility by
the terms of any lease, licence, franchise, grant, agreement or permit, subdivision,
development, servicing, encroachment, site plan, parking or other similar
agreement with any Authority or public or private utility;
(iv) title defects or irregularities which do not, in the aggregate, materially and
adversely impair the use of the Property for the purpose for which it is presently
held;
(v) any cost sharing, common use, reciprocal or other similar agreements relating to
the use and/or operation of the Property and/or adjoining properties provided the
same are complied with in all material respects and all security given by the parties
thereto to each other to secure their respective obligations thereunder;
(vi) any subsisting reservations, limitations, provisos, conditions or exceptions,
including royalties, contained in the original grant of the Property from the Crown;
(vii) any rights of expropriation, access or use, or any other right conferred or reserved
by or in any statute of Canada or the Province of Ontario;
(viii) the provisions of all applicable laws including by-laws, regulations, ordinances,
land use contracts, development agreements and similar instruments relating
(without limitation) to development, use and zoning;
(ix) encroachments by any improvements on the Property over adjoining lands and
easements or rights of way and/or any improvements on adjoining lands
encroaching on the Property which do not materially and adversely affect the
present use of the Property;
(x) all registered and unregistered agreements, easements, rights, covenants and/or
restrictions in favour of municipalities, publicly or privately regulated utilities or
adjoining owners, or that otherwise run with the Lands; and
(xi) any encroachments that are shown on existing surveys or as may be revealed by
an up-to-date survey.
(b) Specific Encumbrances:
(i) All instruments registered on title to the Property as of the Closing Date, including but
not limited to:
1. Notice of the Phase 1 RFEA;
2. Notice of the Pickering FIA;
3. Notice of the Seaton CSA;
4. Notice of the Seaton -Durham CSA.
SCHEDULE C
PROPERTY DOCUMENTS
[Note: Vendor to provide within five (5) days of Execution Date in accordance with Section 5.05.]
Canada
Province of Ontario
TO WIT:
I,
SCHEDULE D
STATUTORY DECLARATION
IN THE MATTER OF THE TITLE TO <>
AND IN THE MATTER OF A SALE THEREOF from HER
MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS
REPRESENTED BY THE MINISTER OF GOVERNMENT
AND CONSUMER SERVICES (the "Vendor") to THE
CORPORATION OF THE CITY OF PICKERING (the
"Purchaser")
, of the , in the Province of Ontario,
DO SOLEMNLY DECLARE, that:
1. I am the
matters hereinafter declared.
{title} of the Purchaser and as such have knowledge of the
2. The Purchaser and Ontario Infrastructure and Lands Corporation ("OILC") are arm's length parties
and the Purchaser has received no special knowledge nor special consideration in entering into the above
Agreement of Purchase and Sale, which would lead to the presumption that the parties are not arm's length
parties.
3. The Purchaser and the Vendor are arm's length parties and the Purchaser has received no special
knowledge nor special consideration in entering into the above Agreement of Purchase and Sale, which
would lead to the presumption that the parties are not arm's length parties.
4. Except as expressly set out in Schedule A to this Declaration:
(a) to the best of the knowledge and belief of the undersigned, there are no outstanding legal
disputes or actions between the Vendor and Purchaser;
(b) the Purchaser is not in conflict with OILC with respect to the above transaction; and
(c) the Purchaser is not in conflict with the Vendor with respect to the above transaction.
AND I make this solemn Declaration conscientiously believing it to be true, and knowing that it is of the
same force and effect as if made under oath and by virtue of the Canada Evidence Act.
DECLARED by the above-named
Declarant, before me at the of
)
)
, this
day of , 201
A Commissioner, etc.
BETWEEN:
AND:
SCHEDULE E
DOCUMENT REGISTRATION AGREEMENT
DOCUMENT REGISTRATION AGREEMENT
(hereinafter referred to as the "Vendor's Solicitor")
(hereinafter referred to as the "Purchaser's Solicitor")
RE: Her Majesty the Queen in right of Ontario as represented by the Minister of Government and Consumer
Services (the "Vendor") sale to O (the "Purchaser") of the property legally described as O, City of O,
being the whole of PIN O(LT) (the "Property" pursuant to an Agreement of Purchase and Sale between
the Purchaser, as purchaser, and the Vendor, as vendor, dated O and accepted O (the "Purchase
Agreement"), Scheduled to be completed on <> (the "Closing Date")
Holding Deliveries
In Escrow
Advising of
Concerns with
Deliveries
Selecting Solicitor
Responsible for
Registration
FOR GOOD AND VALUABLE CONSIDERATION (the receipt and
sufficiency of which is hereby expressly acknowledged), the parties hereto hereby
undertake and agree as follows:
1. The Vendor's Solicitor and the Purchaser's Solicitor shall hold all funds, keys and closing
documentation exchanged between them (the "Requisite Deliveries") in escrow. and shall not release
or otherwise deal with same except in accordance with the terms of this Agreement. Both the
Vendor's Solicitor and the Purchaser's Solicitor have been authorized by their respective clients to
enter into this Agreement. Once the Requisite Deliveries can be released in accordance with the
terms of this Agreement, any monies representing payout funds for mortgages to be discharged shall
be forwarded promptly to the appropriate mortgage lender.1
2. Each of the parties hereto shall notify the other as soon as reasonably possible following
their respective receipt of the Requisite Deliveries (as applicable) of any defect(s) with respect to same.
3. The Purchaser's Solicitor shall be responsible for the registration of the Electronic
Documents (as hereinafter defined) unless the box set out below indicating that the Vendor's
Solicitor will be responsible for such registration has been checked. For the purposes of this
Agreement, the solicitor responsible for such registration shall be referred to as the "Registering
Solicitor" and the other solicitor shall be referred to as the "Non -Registering Solicitor":
Vendor's Solicitor will be registering the Electronic Documents
'Solicitors should continue to refer to the Law Society of Upper Canada practice guidelines relating to recommended procedures to follow
for the discharge of mortgages.
Responsibility of
Non -Registering
Solicitor
Responsibility of
Registering
Solicitor
Release of Requisite
Deliveries by Non -
Registering Solicitor
Returning
Delivenes where
Non -registration
Counterparts
& Gender
Purchase
Agreement
Prevails if
Conflict or
Inconsistency
Telefaxing
Deliveries
& Providing
Onginals if
Requested
4. The Non -Registering Solicitor shall, upon his/her receipt and approval of the Requisite
Deliveries (as applicable), electronically release for registration the Electronic Documents and shall
thereafter be entitled to release the Requisite Deliveries from escrow forthwith following the earlier
of:
a) the registration of the Electronic Documents;
b) the closing time specified in the Purchase Agreement unless a specific time has
been inserted as follows [ a.m. p.m. on the Closing Date] (the' `Release
Deadline"), and provided that notice under paragraph 7 below has not been
received; or
c) receipt of notification from the Registering Solicitor of the registration of the
Electronic Documents.
If the Purchase Agreement does not specify a closing time and a Release Deadline has not been
specifically inserted the Release Deadline shall be 6.00 p.m. on the Closing Date.
5. The Registering Solicitor shall, subject to paragraph 7 below, on the Closing Date,
following his/her receipt and approval of the Requisite Deliveries (as applicable), register the
documents listed in Schedule A annexed hereto (referred to in this agreement as the "Electronic
Documents") in the stated order of priority therein set out, as soon as reasonably possible once same
have been released for registration by the Non- Registering Solicitor, and immediately thereafter
notify the Non -Registering Solicitor of the registration particulars thereof by telephone or telefax (or
other method as agreed between the parties).
6 Upon registration of the Electronic Documents and notification of the Non -Registering
solicitor in accordance with paragraph 5 above, the Non- Registering Solicitor shall be entitled to
forthwith release the Requisite Deliveries from escrow.
7. Any of the parties hereto may notify the other party that he she does not wish to proceed
with the registration' of the Electronic Documents, and provided that such notice is received by the
other party before the release of the Requisite Deliveries pursuant to this Agreement and before the
registration of the Electronic Documents, then each of the parties hereto shall forthwith return to the
other party their respective Requisite Deliveries.
8. This agreement may be signed in counterparts, and shall be read with all changes of gender
and or number as may be required by the context.
9. Nothing contained in this agreement shall be read or construed as altering the respective
rights and obligations of the Purchaser and the Vendor as more particularly set out in the Purchase
Agreement, and in the event of any conflict or inconsistency between the provisions of this
agreement and the Purchase Agreement, then the latter shall prevail.
10. This agreement (or any counterpart hereof), and any of the closing documents hereinbefore
contemplated, may be exchanged by telefax or similar system reproducing the original, provided that
all such documents have been properly executed by the appropriate parties. The party transmitting
any such document(s) shall also provide the original executed version(s) of same to the recipient
within 2 business days after the Closing Date, unless the recipient has indicated that he she does not
require such original copies.
For the purpose of this Agreement the term ' registration" shall mean the issuance of registration number(s) in respect of the Electronic
Documents by the appropriate Land Registry Office.
Dated this day of <>, 201. Dated this day of <>, 201
Name Firm Name of Vendor's Solicitor Name/Firm Name of Purchaser's Solicitor
(Signature) (Signature)
Note: This version of the Document Registration Agreement was adopted by the Joint LSUC-CBAO Committee
on Electronic Registration of Title Documents on March 29, 2004 and posted to the web site on April 8, 2004.
Schedule "A"
1. Transfer from <> to <>.
SCHEDULE F
CLOSING AGREEMENT
TO: Her Majesty the Queen in right of Ontario as represented by the Minister of Government
and Consumer Services (the "Vendor")
AND TO: Ontario Infrastructure and Land Corporation (the "Vendor's Agent")
RE:
The Corporation of the City of Pickering (the "Purchaser") purchase from the Vendor of the
property legally described as Part XXX, Concession XXX, Geographic Township of
Pickering, designated as Part XXX on Plan 40R -XXX, City of Pickering, Regional
Municipality of Durham (the "Property") pursuant to an Agreement of Purchase and Sale
between the Purchaser and the Vendor dated XXX, as amended from time to time (the
"Purchase Agreement")
In consideration of and notwithstanding the Closing of the Transaction and other good and valuable
consideration (the receipt and sufficiency of which is hereby acknowledged):
1. The Purchaser agrees to accept, assume and take title the Property and any improvements thereon in an
"As Is Where Is" condition in accordance with Section 5.01 of the Purchase Agreement.
2. The Purchaser confirms that all provisions of the Purchase Agreement that by their express terms are to
survive and not merge on Closing shall survive and not merge on Closing.
3. The Purchaser confirms that all representations and warranties made by the purchaser in the Purchase
Agreement remain true and correct as if repeated here.
4. The Purchaser reaffirms all indemnities made by it in the Purchase Agreement.
5. The Purchaser reaffirms the release and covenant not to sue provided for in Section 5.08 and 5.10 of the
Purchase Agreement.
6. This Agreement shall not merge on Closing but shall survive Closing.
7. Unless otherwise defined herein, all capitalized terms used herein have the meaning ascribed to them in
the Purchase Agreement.
8. The Vendor and Vendor's Agent may rely on a signed electronically transmitted copy of this Agreement
which shall constitute and be treated for all purposes as signed original of this Agreement.
9. This Agreement shall be binding upon the successors and permitted assigns of the Purchaser and shall
enure to the benefit of the Vendor and its successors and assigns.
DATED as of the XX day of XXX, 2019.
THE CORPORATION OF THE CITY OF
PICKERING
Per:
Per:
Name:
Title:
Name:
Title:
I have authority to bind the Corporation.
SCHEDULE G
PARTICIPATION AGREEMENT
BETWEEN:
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS REPRESENTED BY THE
MINISTER OF GOVERNMENT AND CONSUMER SERVICES
-and-
THE CORPORATION OF THE CITY OF PICKERING
RECITALS:
A. Her Majesty the Queen in right of Ontario, as represented by the Minister of Government and
Consumer Services (the "Province") is the owner in fee simple of the land described in Appendix
"A" to this Participation Agreement (the "Property"). Ontario Infrastructure and Lands Corporation
confirms that it is the designated agent of the Province.
B. The Corporation of the City of Pickering (the "Transferee") is the proposed transferee of the Property
as at the date hereof pursuant to an Agreement of Purchase and Sale between the Province and the
Transferee, fully executed on «Enter Date» (the "Sale Agreement").
NOW THEREFORE in consideration of the mutual covenants hereinafter set forth, the transfer of the
Property from the Province to the Transferee and other good and valuable consideration, the parties hereto
agree as follows:
1. For the purposes of this Participation Agreement:
"Base Amount" means [NTD — enter purchase price] in respect of the Property, and recalculated
in accordance with paragraph 2 below in respect of any portion of the Property.
"Business Day" means any day on which the Government of Ontario normally conducts business.
"Closing Date" means the date upon which the Property is transferred by the Province to the
Transferee pursuant to the Sale Agreement, being «Enter Closing Date».
"Profit" means the amount by which the Sale Price exceeds the Base Amount with respect to the
Property or portion thereof.
"Purpose" has the meaning ascribed thereto in paragraph 2 below.
"Sale Price" means the value in lawful money of Canada of all consideration and benefit paid or
agreed to be paid for the Property or portion thereof, including all buildings and improvements, by a
purchaser dealing with the Transferee, including the value of all chattels situate thereon which are
then owned by the Transferee and which are intended to pass on such sale transaction and the value
of any encumbrances or mortgages assumed by such purchaser or taken back as part of the
consideration for such sale transaction, less the aggregate of the following:
(a) the cumulative total of any and all capital improvements to the Property or portion thereof
less any amortization taken in respect thereof (as determined in accordance with generally
accepted accounting principles and to account for the depreciation of the capital
improvements and any diminution in value due to damage, faulty workmanship, construction
defects or other causes) made by the Transferee after it acquired the Property or portion
thereof;
(b) any real estate commission payable by the Transferee in disposing of the Property or portion
thereof to such a third -party purchaser in an amount not to exceed the then current industry
practice; and
(c) reasonable legal and accounting fees payable by the Transferee in disposing of the Property
or portion thereof.
"Term" means the period commencing on the date hereof and expiring on the date which is ten (10)
years following the Closing Date hereof.
"Transferee" has the meaning ascribed to such term in the Recitals hereto, and shall also include any
successor in title to the Property during the Term.
2. It is the express intention of the Province and the Transferee that there shall be no speculation with
respect to all or any portion of the Property. In the event of a sale or proposed sale of all or any
portion of the Property by the Transferee or any affiliated company of the Transferee as that term is
defined in the Business Corporations Act, R.S.O. 1990, c.B. 16, at any time during the Term, at the
option of the Province, either (i) the Province shall have the right to repurchase the Property at the
same price paid by the Transferee to the Province pursuant to the Sale Agreement, plus the cumulative
total of any and all capital improvements made by the Transferee to the Property from and after it
acquired the Property (as determined in accordance with generally accepted accounting principles
and to account for the depreciation of the capital improvements and any diminution in value due to
damage, faulty workmanship, construction defects or other causes), or (ii) one hundred percent
(100%) of any Profit as defined below shall be paid to the Province and the amount of such Profit
shall be a charge on the Property in favour of the Province until paid. In determining the Base Amount
and calculating the Profit for the proposed sale of any portion of the Property, the Base Amount shall
be adjusted and calculated on a pro -rata basis based on the acreage of such portion being transferred,
as shown by evidence (e.g. a reference plan) provided by the Transferee to the Province at no cost to
the Province, to the satisfaction of the Province. At the request of the Province, the Transferee shall
enter into a charge or other form of security, acceptable to the Province at its sole, unfettered
discretion, to secure payment of the Profit. With respect to any capital improvement costs or other
costs or expenses involved in the calculation of the Sale Price, Profit or the price at which the Province
is to repurchase the Property in accordance with this Agreement, the Transferee shall provide all
documents, records and invoices in sufficient detail, at no cost to the Province, to allow analysis and
approval of such calculation(s) by the Province.
For the purposes of this provision, the Transferee and the Province acknowledge that the purpose for
which the Property is being purchased is for [ ] (the "Purpose"). In the event
that the Transferee does not begin to use and thereafter continue to use the Property for the Purpose
within years following the Closing Date, which shall be evidenced by [NTI): TBD], then the
Province shall have the right to repurchase the Property at the same price paid by The Corporation
of the City of Pickering to the Province pursuant to the Sale Agreement and the Transferee shall
return the Property to the Province in its original condition it was in immediately prior to the transfer
of the Property from the Province to The Corporation of the City of Pickering and, if applicable, the
Transferee shall have the obligation to restore the Property to such condition at no cost to the
Province.
The Transferee acknowledges that the Province may be required to obtain certain approvals to
exercise any of the options under this Participation Agreement.
3. The Transferee acknowledges and agrees that the Province shall have all the rights and remedies of
a secured party under the Personal Property Security Act and a mortgagee under the Mortgages Act
in the event that such Transferee fails to pay any amount owing to the Province pursuant to this
Participation Agreement.
4. On the Closing Date the Transferee will register in the appropriate land registry office a Notice of
this Participation Agreement on title to the Property immediately following the transfer to the
Transferee and prior to any mortgage or other instrument.
5. The Transferee acknowledges that the provisions of this Participation Agreement run with title to the
Property, and the Transferee covenants not to sell, transfer or otherwise alienate the Property or any
part thereof to any affiliated entity or any third party unless such transferee agrees in writing to
assume the obligations of the Transferee herein and be bound by the terms of this Participation
Agreement in respect of the Property or such part thereof, as the case may be, in a form satisfactory
to the Province.
6. At least 15 Business Days prior to the scheduled completion of a transfer of title to the Property or
portion thereof, the Transferee shall deliver to the Province a sworn declaration setting forth the
proposed Sale Price and if there is any Profit, including information used to calculate the Sale Price
and Base Amount in accordance with this Participation Agreement, in reasonable detail to allow
analysis and approval of the calculation of the Sale Price and Profit (if any) by the Province. The
declaration shall also include the calculation of the Profit payable by the Transferee to the Province.
Prior to the completion of any transfer of the Property or any portion thereof by the Transferee, the
Transferee must first obtain the approval of the calculation of the Sale Price and the Profit, in writing,
from the Province, and make arrangements to pay the Profit to the Province, if any, which
arrangements must be satisfactory to the Province, acting reasonably.
7. Any notice under this Participation Agreement is sufficiently given if delivered personally or if sent
by ordinary prepaid mail or prepaid courier, electronic facsimile machine or similar electronic means
(including e-mail) addressed to the Transferee at:
and to the Transferee's solicitor at:
[ ]
and to the Province at:
c/o Ontario Infrastructure and Lands Corporation
Sales and Acquisitions
1 Dundas Street West
Suite 2000
Toronto, ON M5G 2L6
Attention: Vice President, Sales and Acquisitions
Facsimile: 416-327-3942
And:
Attention: Director, Legal Services (Real Estate and Leasing)
777 Bay Street,
Suite 900
Toronto, ON M5G 2C8
Facsimile: 416-326-2854
or at such other addresses as the parties may designate from time to time. Any such notice shall be
conclusively deemed to have been given and received upon the same day if personally delivered or
sent by facsimile or similar electronic means (including e-mail), or, if mailed, three (3) Business Days
after the same is mailed. Any party may, at any time by notice given in writing to the other party,
change the address for service of notice on it.
8. This Participation Agreement may be executed and delivered in counterparts and any such
counterpart may be delivered in its original form or by facsimile transmission and each of which
when so executed and delivered shall be deemed to be an original and such counterparts together
shall constitute one and the same Agreement.
9. This Participation Agreement shall be binding upon, and enure to the benefit of the Transferee and
the Province and their respective successors and permitted assigns.
[BALANCE OF PAGE INTENTIONALLY LEFT BLANK — SIGNING PAGE FOLLOWS]
DATED the «Day», day of «Month», «Year».
THE CORPORATION OF THE CITY OF
PICKERING
Per:
By:
Name:
Title:
Name:
Title:
I/We have authority to bind the Corporation.
DATED the «Day», day of«Month», «Year».
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO
AS REPRESENTED BY THE MINISTER OF
GOVERNMENT AND CONSUMER SERVICES AS
REPRESENTED BY ONTARIO INFRASTRUCTURE
AND LANDS CORPORATION
Per:
Name: «Director/Project Manager's Name»
Title: «Title», Sales, Easements & Acquisitions
I have the authority to bind the Corporation.
APPENDIX "A"
Attachment No. 4 to Report CAO 02-20
Execution Version
THE CORPORATION OF THE CITY OF PICKERING
as "Vendor"
and
SHIRVA INVESTMENT AND DEVELOPMENTS CORPORATION
as "Purchaser"
AGREEMENT OF PURCHASE AND SALE
Employment Land - 2019 (Part of Parcel 3)
38997-2004 29477789.5
TABLE OF CONTENTS
SECTION 1 DEFINITIONS 1
SECTION 2 AGREEMENT OF PURCHASE AND SALE 7
SECTION 3 DEPOSIT / PAYMENT OF PURCHASE PRICE 7
SECTION 4 HARMONIZED SALES TAX 9
SECTION 5 "AS IS WHERE IS", PURCHASER'S INSPECTION PERIOD, AND
ENVIRONMENTAL INDEMNITY 9
SECTION 6 CLOSING CONDITIONS 13
SECTION 7 INTENTIONALLY DELETED 15
SECTION 8 CLASS EA REQUIREMENTS / ABORIGINAL CLAIMS 15
SECTION 9 RISK 15
SECTION 10 VENDOR'S WARRANTIES, REPRESENTATIONS AND COVENANTS 16
SECTION 11 PURCHASER'S WARRANTIES, REPRESENTATIONS AND COVENANTS 16
SECTION 12 INTENTIONALLY DELETED 17
SECTION 13 REFERENCE PLAN(S) 17
SECTION 14 TITLE 17
SECTION 15 NO ASSIGNMENT ETC. 18
SECTION 16 DEVELOPMENT AGREEMENTS 18
SECTION 17 PREPARATION OF TRANSFER/DEED DOCUMENTS AND FEES/COSTS 20
SECTION 18 TENDER 20
SECTION 19 ADJUSTMENTS 21
SECTION 20 ELECTRONIC REGISTRATION 21
SECTION 21 CLOSING DELIVERABLES 22
SECTION 22 NOTICE 23
SECTION 23 CONFIDENTIALITY 24
SECTION 24 GENERAL 25
SECTION 25 IRREVOCABLE PERIOD 26
38997-2004 29477789.5
AGREEMENT OF PURCHASE AND SALE
BETWEEN:
THE CORPORATION OF THE CITY OF PICKERING
(hereinafter called the "Vendor")
OF THE FIRST PART
- and -
SHIRVA INVESTMENT AND DEVELOPMENTS CORPORATION
(hereinafter called the "Purchaser")
OF THE SECOND PART
RECITALS:
A. The Vendor has entered into an agreement of purchase and sale (the "HMQ Purchase
Agreement") with Her Majesty The Queen in Right of Ontario, as represented by The Minister of
Government and Consumer Services ("HMQ") for the purpose of acquiring the fee simple interest
in the property defined as the "Lands" in Section 1.01(qq) of this Agreement in order to
immediately thereafter, sell such fee simple interest in the Lands to the Purchaser.
B. HMQ is the owner in fee simple of the Lands as of the date hereof.
C. The Lands are subject to the Development Agreements, and the Purchaser has agreed to assume
the Development Agreements as they relate to the Lands.
D. The Lands are subject to the Lease(s), and the Purchaser has agreed to assume the Lease(s) as they
relate to the Lands.
E. The Purchaser has offered to purchase the Property from the Vendor on the terms and conditions
hereinafter set forth.
NOW THEREFORE in consideration of the mutual covenants hereinafter set forth and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1
DEFINITIONS
1.01 Definitions
Unless the context expressly or by necessary implication indicates a contrary meaning, the terms
defined in this Section 1.01 for all purposes of this Agreement, shall have the meanings set out below:
38997-2004 29477789.5
-2-
(a) "Adjustments" means the adjustments to the Purchase Price provided for and determined
pursuant to this Agreement.
(b) "Affiliate" has the meaning set out in the Business Corporations Act, R.S.O. 1990, c. B.
16.
(c) "Agreement" means collectively, this agreement of purchase and sale, all
Schedules attached hereto and every properly executed instrument which by its terms
amends, modifies or supplements this Agreement.
(d) "Applicable Laws" means, collectively, all statutes, laws, by-laws, regulations, ordinances
and orders of any governmental Authority, including without limitation all Land Use
Regulations.
(e) "As Is Where Is" has the meaning ascribed to it in Section 5.01.
(f) "Assignee" has the meaning ascribed to it in Section 15.02.
(g) "Assignment and Assumption Agreement" means an agreement by which the Vendor
shall assign and the Purchaser shall become a party to a Development Agreement, Lease,
Permitted Encumbrance or the Participation Agreement and whereby the Purchaser
assumes the responsibility of the Vendor with regard to the Property pursuant to such
Development Agreement, Lease, Permitted Encumbrance or the Participation Agreement.
(h) "Attribution Development Charges" means the Regional Attribution Water Supply DC
and the Regional Attribution Sanitary Sewerage DC (as such terms are defined in the Phase
1 RFEA) from time to time.
(i) "Attribution Prepayment" means the sum of the "Regional Attribution Water Supply DC
Prepayment" and the "Regional Attribution Sanitary Sewerage DC Prepayment" (as such
terms are defined in the Phase 1 RFEA) from time to time.
(j) "Authority" means any governmental or quasi -governmental authority, regulatory
authority, government department, agency, commission, board, tribunal, body or
department, or any court, whether federal, provincial or municipal, having jurisdiction over
the Property, or the use thereof, and includes the City and the Region.
(k) "Buildings" means, individually or collectively, as the context requires, all buildings,
structures and fixed improvements located on, upon or under the Lands, and all
improvements and fixtures of the Vendor contained in, upon or on such buildings and
structures which are used in the operation of same, and "Building' means any one of the
Buildings.
(1) "Business Day" means any day on which the Government of Ontario normally conducts
business.
(m) "City" means the City of Pickering.
(n) "Class EA" means the Class Environmental Assessment Process for the Ministry of
Infrastructure as it applies to OILC realty activities (being as at the Execution Date,
38997-2004 29477789.5
-3 -
the "Ministry of Infrastructure Public Work Class Environmental Assessment (Office
Consolidation)", as approved April 28, 2004 and amended on September 11, 2008 and on
October 31, 2012), as approved, amended, or renewed from time to time by the Minister
of the Environment and Climate Change pursuant to Section 14 of the Environmental
Assessment Act, R.S.O. 1990, c. E.18.
(o) "Class EA Requirements" has the meaning ascribed to it in Section 8.01.
(p) "Closing"' means the closing of the Transaction, including without limitation, the payment
of the Purchase Price and the delivery of the closing documents in accordance with the
provisions of this Agreement.
(q) "Closing Date" means the later of (i) the day on which the Vendor acquires the Property
from HMQ pursuant to the closing of the HMQ Purchase Agreement; and (ii) the date
which is fourteen (14) days following the deposit of the Reference Plan with the Land
Registry Office, or such other date as the Parties may otherwise mutually agree, acting
reasonably.
(r) "Community Use Land" has the meaning ascribed to it in the Seaton CSA.
(s) "Contaminant" has, for the purposes of this Agreement, the same meaning as that
contained in the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended, and shall
include the requirements of any and all guidelines and/or policies issued by the Ontario
Ministry of the Environment and Climate Change and/or the Ministry of Labour.
(t) "Cost Shared Service" has the meaning ascribed to it in the Seaton CSA.
(u) "DC Credit Recovery Payment" has the meaning ascribed to it in Section 16.03.
(v) "Deposit" has the meaning ascribed to it in Section 3.01.
(w) "Developable Area Share" has the meaning ascribed to it in the Seaton CSA.
(x) "Development Agreements" means, collectively, the Phase I RFEA, the Seaton CSA, the
Pickering FIA, the Seaton -Durham CSA and the Master Parks Agreement, and
"Development Agreement" means any one of such agreements.
(y)
"Development Agreement Payment" means any payment required to be made, or security
to be provided, to an Authority, to the Vendor, or to a trustee named under a Development
Agreement, by the Purchaser at Closing hereunder and whether required by an Assignment
and Assumption Agreement or otherwise, and includes, but is not limited to, the DC Credit
Recovery Payment, Attribution Prepayment, Development Agreement Security,
Development Charge Payments, and Private Land Landowner Equivalency Payment.
(z) "Development Agreement Security" means any security required to be delivered by a
Private Landowner pursuant to a Development Agreement, whether by letter of credit or
otherwise.
(aa) "Development Charge Credits- means the development charge credits earned pursuant
to the Phase 1 RFEA.
38997-2004 29477789.5
-4 -
(bb) "Development Charge Prepayments" means the prepayments on account of the Regional
Attributions Development Charges required to be paid to the Region pursuant to the Phase
1 RFEA upon the development of Employment Lands.
(cc) "Drainage Area Share" has the meaning ascribed to such term in the Seaton CSA.
(dd) "Durham Owners" has the meaning ascribed to it in the Seaton -Durham CSA.
(ee) "Employment Lands" means those lands designated as "Prestige Employment Lands" in
the 'Central Pickering Development Plan'.
(ff)
"Environmental Law- means, collectively, all Applicable Laws and agreements with
governmental Authorities and all other applicable federal and provincial statutes,
municipal and local laws, common law and deed restrictions, all by-laws, regulations,
codes, licences, permits, orders, directives, guidelines, decisions rendered by any
governmental Authority relating to the protection of the environment, natural resources,
public health, occupational health and safety or the manufacture, processing, distribution,
use, treatment, storage, disposal, packaging, transport, handling, containment, clean-up or
other remediation or corrective action of any Hazardous Substance, and all authorizations
issued pursuant to such Applicable Laws, agreements or statutory requirements.
(gg) "Environmental Objection" has the meaning ascribed to it in Section 5.02.
(hh) "Environmental Reports" means the reports relating to the environmental condition of
the Lands as identified in Schedule C.
(ii) "Execution Date" means the date on which this Agreement has been executed and
delivered by all parties hereto.
(jj) "Existing Deposit' has the meaning ascribed to it in Section 3.01.
(kk) "Hazardous Substance" includes, but is not limited to any hazardous or toxic chemical,
waste, by-product, pollutant, contaminant, compound, product or substance, including
without limitation, any Contaminant, asbestos, polychlorinated biphenyls, petroleum and
its derivatives, by-products or other hydrocarbons and any other liquid, solid or gaseous
material the exposure to, or manufacture, possession, presence, use, generation, storage,
transportation, treatment, release, disposal, abatement, cleanup, removal, remediation or
handling of, which is prohibited, controlled or regulated by any and is defined in or
pursuant to any Environmental Law.
(11) "HMQ" has the meaning ascribed to it in the recitals of this Agreement.
(mm) "HMQ Acquisition Costs" has the meaning ascribed to it in Section 17.02.
(nn) "HMQ Purchase Agreement" has the meaning ascribed to it in the recitals to this
Agreement.
(oo) "HST" has the meaning ascribed to it in Section 4.01 of this Agreement.
38997-2004 29477789.5
-5 -
(pp) '`Inspection Period" means that period of time commencing on the Execution Date and
ending at 5:00 p.m. (Toronto time) on May 1, 2020.
[qq) "Lands" means the tands described and set forth at Schedules "A -l" and "A-21'. j1VTD—
to be updated upon receipt of Reference Plan]
(rr] "Land Use Regulations" means collectively, any land use policies, regulations, by-laws,
or plans of any Authority that apply to the use of the Property. including the existing
Official Plans, zoning by-laws and zoning orders.
(ss) "Land Transfer Tax Affidavit" has the meaning ascribed to it in Section 17.01.
(tt) "Lease(s)" means all leases or licences of any portion of the Lands in force at Closing.
(uu) "Master Parks Agreement" means the Master Parks Agreement dated May 1, 2017
entered into by the City, and the owners of other development land in the Seaton
Community for the purpose of establishing arrangements pertaining to the satisfaction of
the park dedication requirements for the Seaton Community.
(vv) "Municipality" means the municipality (or municipalities) where the Property is located.
(ww) "Offer Date' means the date the offer herein is submitted to the Vendor by the Purchaser.
(xx) "OILC" means Ontario Infrastructure and Lands Corporation.
(yy) '-Open Data" means data that is required to be released to the public pursuant to the Open
Data Directive.
(zz) "Open Data Directive" means the Management Board of Cabinet's Open Data Directive.
updated on April 29, 2016, as same may be amended from time to time.
(aaa) "Participation Agreement" means the participation agreement to be entered into between
the Vendor and E-IMQ at Closing, which participation agreement shall be substantively in
the farm attached to the HMQ Purchase Agreement as Schedule G.
(bbb) --Permitted Encumbrances" means, collectively, the encumbrances listed in Schedule B
and any encumbrances created under the terms of this Agreement.
(ccc) 'Phase 1 RFEA" has the meaning ascribed to such term in the Seaton CSA.
(ddd) "Phase 1 RFEA Lands" has the meaning ascribed to such term in the Phase l RFEA.
(eee) "Pickering FIA" means the financial Impacts Agreement dated November 26, 2015
entered into by the City, and the owners of other development land in the Seaton
Community for the purpose of confirming arrangements pertaining to the financing and
construction of certain infrastructure and other related matters affecting the development
of lands in Seaton.
(fff) "Private Landowner" has the meaning ascribed to such term in the Seaton CSA.
38997-2004 29477789,5
-6-
(ggg) "Private Landowner Equivalency Payment" has the meaning ascribed to it in
Section 16.06.
(hhh) "Property" means, collectively, all of the right, title and interest of the Vendor in and to
the Lands and the Buildings.
(iii) "Property Documents" means the documents in OILC's current possession and related to
the Property, as set out in Schedule C, and shall include, but shall not be limited to:
(A) executed copies of any assignable service contracts, operating agreements
and management agreements;
(B) copies of assignable guarantees and warranties of materials, workmanship,
labour and materials relating to the Property that are still in effect;
(C) copies of the Environmental Reports, heritage reports, archaeological
reports or any other report relating to the physical, geotechnical or
environmental condition of the Property;
(D) copies of all Lease(s);
(E) copies of all Permitted Encumbrances which are not registered against title
to the Property; and
(F) any plan of survey of the boundaries of the Property.
(jjj) "Provincial Successor" has the meaning ascribed to such term in the Seaton CSA.
(kkk) "Purchase Price" means the total amount determined by Section 2.02 that shall be paid by
the Purchaser to the Vendor for the Property, exclusive of HST and subject to the
Adjustments.
(111) "Purchaser's Reports" has the meaning ascribed to it in Section 5.06.
(mmm) "Reference Plan" has the meaning ascribed to it in Section 13.01.
(nnn) "Region" means the Regional Municipality of Durham.
(000) "Regional Infrastructure" has the meaning ascribed to it in the Seaton CSA.
(ppp) "ROFR Agreement" means the ROFR Agreement attached hereto as Schedule G to be
entered into between the Vendor and the Purchaser on Closing.
(qqq) "Seaton Community" means the developable land as determined by the Central Pickering
Development Plan, as may be further refined, and as determined by the Seaton CSA.
(rrr) "Seaton CSA" means the Amended and Restated Cost Sharing Agreement dated
November 26, 2015 between the Vendor and other owners of development land in the
Seaton Community to provide for the sharing of the costs of development in the Seaton
Community.
38997-2004 29477789.5
-7-
(sss) "Seaton -Durham CSA" means an agreement dated November 26, 2015 between the
Vendor, the Private Landowners and the Durham Owners to provide for the recovery of
certain costs of construction of Regional Infrastructure to be incurred by the Vendor and
the Private Landowners pursuant to the Phase 1 RFEA from the Durham Owners.
(tt)
"Seaton Trustee" means the trustee as provided for in the Seaton CSA, as it is from time
to time. As of the Execution Date, the Seaton Trustee is North Pickering Community
Management Inc.
(uuu) "Servicing Costs" has the meaning ascribed to it in Section 16.07.
(vvv) "Subsequent Phase" means development of land in the Seaton Community, the
development of which is not covered by the Phase 1 RFEA, and for which no allocation of
sewer or water capacity has currently be granted by any Authority.
(www) "Transaction" means, collectively, the purchase and sale of the Property provided for in
this Agreement and all other matters contemplated in this Agreement.
SECTION 2
AGREEMENT OF PURCHASE AND SALE
2.01 Subject to the closing of the HMQ Purchase Agreement and the transfer of fee simple interest in
the Lands to the Vendor pursuant thereto, the Vendor agrees to sell, transfer and assign to the
Purchaser all of the right, title and interest of the Vendor in the Property and the Purchaser agrees
to purchase, acquire and assume the Property from the Vendor for the Purchase Price which shall
be paid by the Purchaser to the Vendor for the Property, exclusive of HST and subject to the
Adjustments on the Closing Date.
2.02 The Purchase Price shall be calculated by multiplying the area of the Lands in acres by a per acre
price of:
(a) ONE HUNDRED AND FIFTY-EIGHT THOUSAND DOLLARS ($158,000.00) per
acre.
It is estimated that the area of the Lands is approximately 5.28 acres more or less, which would
result in a Purchase Price of EIGHT HUNDRED AND THIRTY-FOUR THOUSAND TWO
HUNDRED AND FORTY DOLLARS ($834,240.00). Prior to Closing the area of the Lands
shall be conclusively determined by the reference plan to be prepared in accordance with Section
13.01.
2.03 The Purchaser shall NOT be entitled to direct title of the Property to any other person or entity at
Closing.
3.01 The Purchaser:
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SECTION 3
DEPOSIT / PAYMENT OF PURCHASE PRICE
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(a) has paid directly to the Vendor (and the Vendor acknowledges receipt thereof), the amount
of $250,000.00 (the "Existing Deposit"). as a deposit to be credited towards the Purchase
Price on the Closing Date; and
(b) will pay to Vendor's solicitor in trust, by wire transfer:
(i)
Within two (2) Business Days of the Execution Date, the amount of $167,120.00,
which together with the Existing Deposit, being equal to fifty percent (50%) of the
estimated Purchase Price, as estimated at Section 2.02 hereof, as a further deposit
to be credited towards the Purchase Price on the Closing Date; and
(ii) Within two (2) Business Days of the waiver of the Purchaser's conditions in
Section 5 and Section 6.04, a further amount of $417,120.00, being equal to fifty
percent (50%) of the estimated Purchase Price, as estimated at Section 2.02 hereof,
as a further deposit to be credited towards the Purchase Price on the Closing Date,
collectively, the "Deposit".
3.02 The parties authorize the Vendor to invest the Deposit with a Canadian bank as identified in
Schedule 1 of the Bank Act, R.S., 1991, c. B.46 (Canada) in a term or certificate of deposit (such
investment to be available to the Vendor through its trust account bank and which investment
allows liquidation of the investment as necessary for the anticipated Closing Date or earlier
termination of this Agreement as herein provided) if the Vendor determines, acting reasonably, that
anticipated interest to be earned will justify any related expenses, considering the rate of interest to
be earned and the anticipated time the Deposit will be held before Closing. Any and all interest
earned thereon shall accrue to the benefit of and, subject to Sections 3.03 and 5.03, be paid to the
Purchaser forthwith following the Closing Date or earlier termination of this Agreement.
3.03 In the event that this Agreement is terminated due to a specific default by the Purchaser, then the
Deposit, together with all interest accrued thereon, shall be forfeited to the Vendor as liquidated
damages and not as a penalty.
3.04 If the Transaction is completed, the Deposit shall be credited against the Purchase Price due on
Closing and all interest accrued thereon shall be paid to the Purchaser or as it may direct forthwith
following Closing.
3.05 On Closing the Purchase Price shall be paid and satisfied as follows:
(a) by release of the Deposit to the Vendor; and
(b) the balance of the Purchase Price, as adjusted pursuant to this Agreement shall be paid on
the Closing Date by the Purchaser to, at the election of the Vendor, either (i) the Vendor in
trust, or (ii) HMQ by way of a written direction from the Vendor, which direction shall be
provided not less than two (2) Business Days prior to Closing. The balance of the Purchase
Price shall be payable by way of wire transfer, such payment being deemed to have been
made when the recipient's financial institution confirms receipt of such wire transfer.
3.06 In addition to the Purchase Price, at Closing the Purchaser shall pay, or cause to be paid, all
Development Agreement Payments to the Vendor, to the applicable Authority, or to the applicable
trustee under a Development Agreement, as applicable.
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3.07 The Purchaser acknowledges that at Closing it will be required to provide, or cause to be provided,
Development Agreement Security to the appropriate Authority pursuant to one or more of the
Development Agreements.
3.08 The Transaction shall be completed on the Closing Date at the offices of the Vendor's solicitors.
SECTION 4
HARMONIZED SALES TAX
4.01 The Purchase Price does not include the Harmonized Sales Tax ("HST") payable by the Purchaser
in respect of the purchase of the Property pursuant to the Excise Tax Act, R.S.C. 1985, c. E.15
(Canada) (the "Act"). Subject to Section 4.02, the Purchaser agrees to pay to the Vendor, on the
Closing Date, as a condition of completion of this Transaction by wire transfer, certified cheque or
bank draft, all HST payable as a result of this Transaction in accordance with the Act.
4.02 Notwithstanding Section 4.01 above, the Vendor shall not collect HST from the Purchaser in this
Transaction if, on Closing, the Purchaser is registered under the Act and in that event, the Purchaser
shall:
(a) file returns and remit such HST to the Receiver General for Canada when and to the extent
required by the Act; and
(b) provide to the Vendor, on the Closing Date, a certificate confirming that the Purchaser is
registered under the Act for the purposes of collecting and remitting HST, and confirming
its HST registration number under the Act, together with an indemnity in favour of the
Vendor for any and all HST, fines, penalties, actions, costs, losses, claims, damages or
expenses and/or interest which may become payable by, or assessed against, the Vendor as
a result of the Vendor's failure to collect HST from the Purchaser on the Closing Date,
such certificate and indemnity to be in a form satisfactory to the Vendor's solicitor, acting
reasonably,
failing which the Purchaser shall pay to the Vendor on Closing the HST payable by the Purchaser
with respect to this Transaction and the Vendor shall remit such HST to the appropriate Authority
in accordance with the Act.
4.03 The Purchaser's obligations under this Section 4 shall survive and not merge on Closing.
SECTION 5
"AS IS WHERE IS",
PURCHASER'S INSPECTION PERIOD, AND ENVIRONMENTAL INDEMNITY
5.01 The Purchaser acknowledges and agrees that:
(a) in entering into this Agreement, the Purchaser has relied and will continue to rely entirely
and solely upon its own inspections and investigations with respect to the Property,
including, without limitation, the physical and environmental condition of the Property and
a review of any documentation respecting the Property, and the Purchaser acknowledges it
is not relying on any information furnished by the Vendor or any other person on behalf
of, or at the direction of, the Vendor in connection therewith;
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(b)
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the Purchaser is purchasing and shall accept, assume and take title to the Property and any
improvements thereon in an As Is, Where Is" condition. The term As Is, Where Is"
means in its condition or state on the Offer Date, without any agreement, representation or
warranty of any kind whatsoever, either express or implied on the part of the Vendor, as to
the condition of the soil, the subsoil, the ground and surface water or any other
environmental matters, the condition of the Lands, suitability for development, physical
characteristics, profitability, the condition of the Buildings, or any other matter respecting
the Property whatsoever, including without limitation, compliance with Environmental
Law, the existence of any Hazardous Substance or Contaminant, the use to which the
Property may be put and its zoning, the development potential of the Property or the ability
of the Purchaser to obtain approvals with respect to the Purchaser's intended development
of the Property, or as to the accuracy, currency or completeness of any information or
documentation supplied to the Purchaser in connection with the Property; and
(c) the Vendor shall have no obligations or responsibility to the Purchaser after Closing with
respect to any matter relating to the Property or the condition thereof. The provisions of
this Section 5.01 shall survive and not merge on Closing.
Without limiting the foregoing, the Purchaser accepts, assumes and takes title to the Property
subject to the land uses currently permitted on the Property by the applicable Land Use Regulations
and the Purchaser shall not make and is not authorized by the Vendor to make, prior to completion
of this Transaction, any applications to the Municipality or any governmental Authority for changes
or variances to the uses currently permitted on the Property, including without limitation changes
or variances to official plans and/or zoning by-laws applicable to the Property.
5.02 During the period of time commencing on the Execution Date and expiring on the expiration of the
Inspection Period, the Purchaser may carry out whatever investigations it considers necessary to
satisfy itself with respect to the condition of the soil, the subsoil, the ground and surface water or
any other environmental matter relating to the Property, including, without limitation, compliance
with Environmental Law, the existence of any Hazardous Substance or Contaminant.
If as a result of such investigations the Purchaser has or acquires evidence within the Inspection
Period that there exists a condition of non-compliance with Environmental Law or the presence of
a Hazardous Substance or Contaminant on, in, at, under, emanating from or onto the Property that
would be in excess of the guidelines for any of the permitted uses under the current zoning by-law
affecting the Property, the risk or presence of which the Purchaser is not prepared to assume, then
the Purchaser shall, by written notice, provide such evidence to the Vendor within the Inspection
Period by way of a report of a recognized and qualified environmental consultant who shall specify
in detail the nature of the non-compliance, Hazardous Substance or Contaminant and quantify the
remediation cost (collectively, an "Environmental Objection"). Upon receipt of an
Environmental Objection, the Vendor may, at its option and in its sole discretion:
(a) undertake, as the Purchaser's sole and exclusive remedy, to take such actions,
complete such work and/or implement such measures, in the Vendor's sole
discretion as to means and methods, as may be necessary to correct the matter of
non-compliance prior to the Closing Date or as soon as reasonably possible after
the Closing Date if compliance prior to Closing is not, in the Vendor's opinion.
reasonably possible;
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(b) credit the Purchaser, as the Purchaser's sole and exclusive remedy, the quantified
cost of correcting the matter of non-compliance as an adjustment to the Purchase
Price, in which event the Purchaser shall, on Closing, expressly assume the
obligation and undertake to correct the matter of non-compliance as soon as
possible after the Closing Date and shall indemnify and save harmless the Vendor
from and against any and all claims, demands, costs, damages, expenses and
liabilities whatsoever arising from the Purchaser's failure to remediate the
Hazardous Substance, Contaminant and/or matter of non-compliance;
(c) terminate this Agreement in which event the Deposit shall, subject to Section 5.03,
be returned to the Purchaser with accrued interest, and without further liability to
the Vendor; or
(d) refuse to do either (a), (b), or (c) above in which event the Purchaser shall have the
option of either: (i) completing the Transaction without adjustment to the Purchase
Price; or (ii) terminating this Agreement in which event the Deposit shall, subject
to Section 5.03, be returned to the Purchaser with accrued interest, and without
further liability to the Vendor.
The Vendor shall have fifteen (15) Business Days from receipt of the Environmental Objection to
make its election under (a), (b), (c) or (d) above by notice in writing to the Purchaser and in the
event the Vendor fails to make an election within said fifteen (15) Business Day period, the Vendor
will be deemed to have elected option (d) above. The Purchaser shall have five (5) days from the
date of the Vendor's election or deemed election under (d) above to elect, by notice in writing to
the Vendor, to terminate or complete as per paragraph (d) above and in the event the Purchaser fails
to make an election within said five (5) day period the Purchaser shall be deemed to have elected
to complete the Transaction without adjustment to the Purchase Price.
5.03 During the Inspection Period, the Vendor will permit the Purchaser together with its employees,
agents or consultants access to the Property, at reasonable times and upon a minimum of five
(5) Business Days' prior written notice to the Vendor, to carry out, at the Purchaser's sole expense
and risk, such investigations, tests and inspections as the Purchaser deems necessary, provided that
the Purchaser takes all reasonable care in the conduct of such investigations, tests and inspections.
All tests, investigations and inspections conducted by the Purchaser or its representatives shall be
commenced and completed prior to the expiration of the Inspection Period and shall be carried out
as expeditiously as possible and at times and in such manner so as to not interfere with any tenants,
occupants or licensees on the Property or the operation and maintenance of the Property. The
Purchaser covenants and agrees to promptly repair or pay the cost of repair of any damage
occasioned during or resulting from such investigations, tests and inspections of the Property
conducted by the Purchaser or its representatives and to return the Property to substantially the
same condition it was in prior to such investigations, tests and inspections. The Vendor assumes no
responsibility for and the Purchaser shall indemnify and save harmless the Vendor from and against
any and all claims, demands, costs, damages, expenses and liabilities whatsoever arising from the
Purchaser's and/or its agents' or consultants' presence on the Property or the Purchaser's and/or its
agents' or consultants' activities on or in connection with the Property. The Vendor shall be entitled
to deduct from the Deposit paid by the Purchaser hereunder the amount of any losses, costs, claims,
third party actions, damages and expenses which the Vendor may suffer as a result of a breach of
this Section 5.03. The obligations in this Section 5.03 shall survive termination of this Agreement
for a period of two (2) years and shall not merge on Closing.
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5.04 Intentionally Deleted.
5.05 The Vendor agrees to provide to the Purchaser, the Property Documents listed in Schedule C and
the Development Agreements within three (3) days of the date of receipt by the Vendor of same
from the HMQ. The Purchaser acknowledges and agrees that: (i) the Property Documents are being
provided to the Purchaser for informational purposes only and the Vendor makes no representations
or warranties whatsoever with respect to the content, completeness or accuracy of the Property
Documents, or the environmental or any other condition of the Property; (ii) the Vendor shall not
be liable to the Purchaser, its agents, employees or lending institution in any way for any error,
omission or inaccuracy contained in any Property Document; (iii) as of the Closing Date, the
Purchaser shall become solely liable for all conditions and Hazardous Substances and/or
Contaminants existing at the Property, whether known or unknown by the Purchaser, and whether
or not such conditions or Hazardous Substances and/or Contaminants are disclosed in the Property
Documents or have been discovered by Purchaser in the course of its due diligence or other
investigations or inspections of the Property; and (iv) the Purchaser has received a copy of the draft
Participation Agreement which will be registered on title prior to Closing and, for greater certainty,
shall be a Permitted Encumbrance.
5.06 The Purchaser covenants and agrees that the Property Documents provided by the Vendor and any
and all third party reports, findings, recommendations, opinions and information resulting from the
Purchaser's due diligence ("Purchaser's Reports") and the information contained therein shall be
held in accordance with the confidentiality provisions set out in section 23. If this Agreement is
terminated for any reason, the Purchaser will promptly return to the Vendor all Purchaser's Reports
and Property Documents without keeping copies. The Purchaser shall deliver to the Vendor
forthwith following receipt, copies of any and all Purchaser's Reports the Purchaser commissions
or obtains during the course of its investigations.
5.07 In the absence of the Purchaser delivering: (i) an Environmental Objection; and (ii) a notice to
terminate the Agreement under Section 5.02(d), the Purchaser shall be conclusively deemed to
accept the Property in its As Is, Where Is condition, having waived all requisitions concerning any
matters relating to the Property, and the Purchaser shall accept full responsibility for all conditions
related to the Property, and the Purchaser shall comply, at its sole cost, with all orders relating to
the condition of the Property issued by any competent government Authority, court or
administrative tribunal, including any order issued against the Vendor including without limitation,
any non-compliance with Environmental Law or relating to the existence of any Hazardous
Substance or Contaminant.
5.08 As an inducement to, and as further consideration for, the Vendor agreeing to sell the Property to
the Purchaser upon the terms and conditions set forth in this Agreement, the Purchaser covenants
and agrees that, effective as of the Closing Date, the Purchaser shall forever release and covenant
not to sue the Vendor and its affiliates, subsidiaries, related legal entities, employees, directors,
officers, appointees and agents (each individually, a "Vendor Party" and collectively,
the "Vendor Parties") with respect to anything arising out of the environmental or any other
condition of the Property as of the Closing Date or the presence of Hazardous Substances or
Contaminants in, on, under, or emanating from or onto the Property as of the Closing Date,
regardless of whether such environmental conditions or the presence of Hazardous Substances or
Contaminants is known or unknown by the Purchaser and regardless of whether such condition is
set forth in the Property Documents, the Purchaser's Reports or any other report, document or
information discovered during the course of the Purchaser's due diligence or otherwise. The
foregoing release and covenant not to sue shall apply to all claims at law or in equity, including,
38997-2004 29477789.5
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but not limited to, claims or causes of action for personal injury or death, property damage, statutory
claims under Environmental Laws and claims for contribution.
5.09 From and after the Closing Date, the Purchaser shall be responsible for, and hereby agrees to
indemnify, defend and save harmless the Vendor Parties from, any and all costs (including legal,
consultant and witness costs and fees), claims, demands, actions, prosecutions, administrative
hearings, fines, losses, damages, penalties, judgments, awards (including awards of costs) and
liabilities (including sums paid in settlement of claims), that may arise as a result of the condition
of the Property, the presence of Hazardous Substances or Contaminants in, on or under the Lands,
the Buildings or any structure or paved surface, or in any environmental medium (including, but
not limited to, the soil, groundwater, or soil vapour on or under, or emanating from the Property),
any order issued by any Authority in connection with the condition of the Property, or any loss,
damage, or injury caused either directly or indirectly as a result of the condition of the Property
including, without limitation, non-compliance with Environmental Law or the existence of any
Hazardous Substance or Contaminant. Without limiting the generality of the foregoing, this
indemnification shall specifically cover costs incurred, from and after the Closing Date, in
connection with any claim for personal injury and/or death, property damage, investigation of site
conditions and/or any clean-up, remedial, removal, monitoring or restoration work required by any
federal, provincial, or local government agency or political subdivision because of the presence of
Hazardous Substances, in, on or under the Lands, the Buildings or any environmental medium,
structure or paved surface or emanating therefrom.
5.10 The parties agree to execute and exchange at the time of Closing such further documentation as
either party reasonably requests, including, but not limited to, an agreement whereby the Purchaser
shall reaffirm the release, covenant not to sue and indemnifications regarding the condition of the
Property and environmental matters set forth in this Section 5 in the form attached hereto as
Schedule H. Notwithstanding the foregoing, the release, covenant not to sue and indemnifications
set forth in this Section 5 shall become effective and enforceable automatically upon the
registration of the Transfer/Deed of Land in respect of the Property in favour of the Purchaser, and
Purchaser shall be bound by them, regardless of whether or not Purchaser executes any separate
instrument at the time of Closing.
5.11 Unless otherwise expressly set out herein, this Section 5 shall not merge but shall survive the
Closing Date and shall be a continuing obligation of the Purchaser.
SECTION 6
CLOSING CONDITIONS
6.01 The obligation of the Vendor to complete the Transaction is conditional upon fulfillment of each
of the following conditions on or before the Closing Date or any earlier date or time specified in
this Agreement:
(a) each of HMQ and the Vendor shall have satisfied or waived all of the conditions and
requirements set out in the HMQ Purchase Agreement, as applicable therein and the
Vendor shall have acquired the Property from HMQ;
(b) the Reference Plan, shall have been deposited within the Durham Land Registry Office;
38997-2004 29477789.5
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(c) all of the terms, covenants and conditions of this Agreement to be complied with or
performed by the Purchaser shall have been complied with or performed in all material
respects at the times contemplated in this Agreement;
(d) the representations and warranties of the Purchaser set forth in this Agreement shall be true
and accurate in all material respects as if made as of the Closing;
(e) the Purchaser shall have executed all documents required to assume the obligations of the
Vendor pursuant to the Development Agreements, including all required Assignment and
Assumption Agreements; and
(f)
all documents and deliveries required to be executed and/or delivered by the Purchaser
shall have been executed and delivered to the Vendor in accordance to this Agreement.
6.02 The conditions set forth in Section 6.01 are for the sole benefit of the Vendor and may be waived
in whole or in part by the Vendor, or by its solicitors on its behalf, in the sole and absolute discretion
of the Vendor by written notice to the Purchaser. The conditions are conditions precedent to the
obligation of the Vendor to complete the herein Transaction on the Closing Date.
6.03 If a condition set forth in Section 6.01 is not fulfilled within the applicable time period, if any, and
the Vendor fails to notify the Purchaser or the Purchaser's solicitors that such condition has been
waived or the time period for compliance has been extended within the applicable time period
allowed, if any (save and except for any condition which is to be satisfied on the Closing in
connection with which it is hereby agreed that upon successful completion of the Transaction, such
condition shall be deemed to have been satisfied), at the Vendor's sole option, this Agreement shall
be null and void, notwithstanding any intermediate act or negotiations, and (i) in the event the
Agreement is terminated as a result of the non -fulfilment of the condition set forth in
Section 6.01(a), neither the Vendor nor the Purchaser shall, subject to Section 5.03, be liable to the
other for any loss, costs or damages, and the Deposit shall, subject to Section 5.03, be returned to
the Purchaser with interest and without deduction, and (ii) in the event the Agreement is terminated
as a result of the non -fulfilment of any of the conditions set forth in Section 6.01(a), 6.01(d) or
6.01(e), the Deposit shall be forfeited to the Vendor as liquidated damages and without derogating
from any claims or causes of action the Vendor may have pursuant to this Agreement and at law
against the Purchaser arising from the Purchaser's default therein.
6.04 The obligation of the Purchaser to complete the Transaction is conditional upon fulfillment of the
following conditions on or before the expiration of the Inspection Period, namely the Purchaser
shall have satisfied itself with the physical and environmental condition of the Lands, the zoning
of the Lands, the Participation Agreement, the Development Agreements, the Property Documents
and all of its other due diligence tests, evaluations, inspections and investigations, including, but
not limited to, the condition set out in Section 5.05.
6.05 The condition set forth in Section 6.04 is for the sole benefit of the Purchaser and may be waived
in whole or in part by the Purchaser, or by its solicitors on its behalf, in the sole and absolute
discretion of the Purchaser by written notice to the Vendor. The condition is a condition precedent
to the obligation of the Purchaser to complete the herein Transaction on the Closing Date.
6.06 If the condition set forth in Section 6.04 is not fulfilled within the applicable time period and/or the
Purchaser fails to notify the Vendor or the Vendor's solicitors that such condition has been waived,
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then this Agreement shall be null and void, and the Deposit shall, subject to Section 5.03, be
returned to the Purchaser with interest and without deduction.
SECTION 7
INTENTIONALLY DELETED
SECTION 8
CLASS EA REQUIREMENTS / ABORIGINAL CLAIMS
8.01 The Purchaser hereby acknowledges that the obligation of the Vendor to complete the Transaction
is conditional upon fulfillment of the following condition by the HMQ on or before the Closing
Date:
(a) HMQ shall have completed the Class EA Requirements (as such term is defined in the
HMQ Purchase Agreement).
8.02 Notwithstanding any other provision of this Agreement, the Purchaser further acknowledges that
the completion of the Transaction is subject to continuing compliance to the Closing Date with all
Class EA Requirements. In the event that prior to the Closing Date, the Vendor notifies the
Purchaser that:
(a) it has received notice from the HMQ exercising its option under the HMQ Purchase
Agreement to extend the closing date thereunder in accordance with the terms and
conditions therein, the Closing Date shall be automatically extended for such period of
time; or
(b)
HMQ has elected to terminate the HMQ Purchase Agreement in accordance with the terms
and conditions therein, this Agreement shall be deemed terminated and the Deposit plus
any interest shall be returned to the Purchaser and neither party shall be further liable to
the other pursuant to this Agreement other than the Purchaser's obligations pursuant to
Section 5.03 of this Agreement.
SECTION 9
RISK
9.01 Until completion of this Agreement on the Closing Date, the Property shall be and remain at the
risk of the Vendor, except as otherwise provided in Section 5. The Purchaser acknowledges that
the Vendor, in respect of damage to the Property, is self-insured. In the event of damage to the
Property on or before the Closing Date (other than damage occasioned during or resulting from
the Purchaser's and/or its agents, consultants or representatives entries and/or activities on or to the
Property, in which event Section 5.03 shall govern) (the "Pre -Closing Damage"), the Vendor may
elect (i) to forthwith repair the Property to the same state and condition as it was in at the Offer
Date in which event the Purchaser will complete the Transaction without an abatement in the
Purchase Price; or (ii) to reduce the Purchase Price by an amount equal to the cost required to
complete the repair as estimated by an independent qualified architect or engineer jointly retained
by the Vendor and the Purchaser, acting reasonably and at arm's length in which event the
Purchaser will complete the Transaction and accept a price reduction equal to such cost, or
(iii) unless the Purchaser agrees to accept title to the Property notwithstanding the election of the
Vendor not to remediate or compensate, to terminate this Agreement in which case the Deposit
shall, subject to Section 5.03, be immediately returned to the Purchaser, with interest and without
38997-2004 29477789.5
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deduction, and neither party shall, subject to Section 5.03, have any further rights or obligations
hereunder.
9.02 From and including the Closing Date, the Property shall be entirely at the risk of the Purchaser and
the Purchaser shall accept and assume any and all responsibilities and liabilities arising out of or in
any way connected with the Property whether they arose before, on or after the Closing Date and,
without being limited by the foregoing, any state, nature, quality or condition in, on, under or near
the Property existing as of the Closing Date, whenever and however arising, whether known or
unknown and whether environmental or otherwise, and whether such responsibilities and liabilities
are imposed by law, equity or any governing Authority.
SECTION 10
VENDOR'S WARRANTIES, REPRESENTATIONS AND COVENANTS
10.01 The Vendor represents and warrants to the Purchaser that the Vendor is not a non-resident of
Canada within the meaning and intended purpose of Section 116 of the Income Tax Act, R.S.C.
1985, c.1 (5th Supp.).
10.02 Any information provided by the Vendor or its agents, including the Property Documents, and any
comments made by any Vendor Party are for the assistance of the Purchaser in allowing it to make
its own inquiries. The Vendor makes no representations or warranties as to, and takes no
responsibility for, the accuracy or completeness of the Property Documents or any other
information it has provided to the Purchaser.
SECTION 11
PURCHASER'S WARRANTIES, REPRESENTATIONS AND COVENANTS
11.01 The Purchaser represents and warrants to the Vendor that the Purchaser does not have a conflict of
interest with the Vendor or any Vendor Party.
11.02 The Purchaser represents and warrants to the Vendor that the execution, delivery and performance
by the Purchaser of this Agreement, and each agreement to be executed and delivered pursuant
hereto at Closing, to which the Purchaser is a party are within the Purchaser's legal power and
jurisdiction and, will have been duly authorized and approved by all necessary action on the part
of the Purchaser.
11.03 The Purchaser represents and warrants to the Vendor that this Agreement has been, and, each
agreement to be executed and delivered by the Purchaser pursuant to this Agreement, will be duly
and validly executed and delivered by the Purchaser, and this Agreement constitutes, and each
agreement to be executed and delivered pursuant hereto at Closing, when so executed and delivered
will constitute, the legal, valid and binding obligation of the Purchaser, enforceable against the
Purchaser in accordance with their respective terms.
11.04 The Vendor shall deliver and the Purchaser shall accept possession of the Property on the Closing
Date in an As Is Where Is condition, subject to: (i) the Lease(s); (ii) the Development Agreements;
and (iii) the Permitted Encumbrances.
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11.05 As of the Closing Date, the Purchaser shall assume and be responsible as owner for the management
and administration of the Property and the Vendor shall have no further responsibility whatsoever
therefor.
11.06 Without limiting the generality of the foregoing, the Purchaser shall comply with the terms of the
Permitted Encumbrances, any agreement entered into by the Vendor with any Authority relating to
the Property, all other agreements relating to public utilities and municipal services, the Land Use
Regulations, all relevant municipal by-laws and all registered restrictions. The Purchaser further
agrees and acknowledges that it shall be bound by any contractual obligations which the Vendor
may have entered into concerning the Property prior to the Closing Date.
SECTION 12
INTENTIONALLY DELETED
SECTION 13
REFERENCE PLAN(S)
13.01 The Vendor agrees to prepare and deposit in the Durham Land Registry Office, a reference plan(s)
of survey of the Lands (collectively, the "Reference Plan'). The parties acknowledge that the
Property may not be conveyed until such a time as the Reference Plan has been deposited with the
Durham Land Registry Office. The Purchaser shall pay, as an adjustment on Closing, the cost of
preparing the Reference Plan. The area of the Lands shall be conclusively determined by the
Reference Plan.
SECTION 14
TITLE
14.01 Intentionally Deleted.
14.02 On the Closing Date, the Purchaser shall accept title to the Property in an As Is Where Is condition
subject to the following:
(a) the Land Use Regulations;
(b) the Development Agreements and notices thereof;
(c) the Lease(s);
(d) all Community Use Land obligation pursuant to the Seaton CSA;
(e) the Participation Agreement;
(f) the ROFR Agreement; and
(g) the Permitted Encumbrances.
The Purchaser agrees to satisfy itself with respect to compliance with all such agreements,
easements, restrictions or covenants, encumbrances and regulations referred to herein and agrees
that the Vendor shall not be required to provide any evidence of compliance with same.
14.03 Intentionally Deleted.
38997-2004 29477789.5
-18-
14.04 The Vendor hereby consents to the relevant Municipality releasing to the Purchaser any information
in its records in connection with the Property and the Vendor agrees to execute and deliver such
necessary authorizations as the Purchaser may reasonably require in this regard but any such
authorization shall specifically prohibit the right of or a request for an inspection of the Property
by the Municipality or any other Authority.
SECTION 15
NO ASSIGNMENT ETC.
15.01 The Purchaser shall not assign or register this Agreement, or any assignment of this Agreement, or
any part of either, or register a caution in relation thereto, or direct title to the Property, without, in
each instance, obtaining the prior written consent of the Vendor, which consent may be arbitrarily
and unreasonably withheld.
15.02 If the Vendor consents to an assignment of this Agreement to a third party (the "Assignee"), the
Purchaser shall cause the Assignee and the Purchaser, to covenant in writing in favour of the
Vendor to be jointly and severally bound by and to jointly and severally perform their respective
obligations of this Agreement. The Purchaser shall not be released from its liabilities and
obligations hereunder in the event of an assignment to an Assignee.
15.03 In the event of any assignment of this Agreement to an Assignee, such Assignee shall provide a
similar representation, warranty and Statutory Declaration as required of the Purchaser in
Section 11.01
SECTION 16
DEVELOPMENT AGREEMENTS
16.01 The Purchaser agrees that at Closing it shall, as part of its acquisition of the Property, assume the
obligations of the Vendor regarding the Property pursuant to the Development Agreements, and it
covenants to make all payments required by such Development Agreements and provide any
Development Agreement Security required pursuant to any such Development Agreement, whether
such security is to be lodged with an Authority or otherwise, upon the execution of any applicable
Assignment and Assumption Agreement with the intent that the Purchaser shall be treated equally
with the other Private Landowners, except as explicitly provided in the Development Agreements.
Furthermore, the Purchaser acknowledges and agrees the assumed liabilities under the
Development Agreements (including, but not limited to, all amounts required to be paid by the
Purchaser on Closing pursuant to the terms of the Development Agreements) may be material in
nature and the Purchaser acknowledges that it has been provided with sufficient opportunity to fully
assess the nature and quantum of such assumed liabilities.
16.02 The Purchaser acknowledges that the Development Agreements may have been registered against
title to the Property and further acknowledges that the development of the Property is subject to the
Development Agreements. Furthermore and for greater certainty, the Purchaser acknowledges that
from and after Closing it shall be responsible for its share of the costs of all services and/or public
infrastructure relating to the Lands, including, but not limited to, its proportionate share of any front
funded costs which may have been paid by any third parties prior to Closing with respect to such
services and/or public infrastructure.
16.03 The Purchaser acknowledges and agrees that the Vendor has made payments and incurred expenses
which are subject to recovery by the Vendor through the issuance of Development Charge Credits
38997-2004 29477789.5
- 19 -
pursuant to the terms and conditions of the Phase 1 RFEA. The Purchaser agrees that at Closing,
and as a condition of Closing, that it shall reimburse the Vendor for all costs that the Vendor has
incurred which would be recoverable by the Vendor in the form of Development Charge Credits to
be issued pursuant to the Phase 1 RFEA in respect of the Lands. The Purchaser acknowledges and
agrees that the Seaton Trustee shall determine the amount Development Charge Credits entitlement
earned and attributable to the Lands based on the Developable Area Share of the Lands in the
Seaton Community, whether or not the Lands are within the Phase 1 RFEA Lands, and shall take
into account indexing as provided for in the Phase 1 RFEA. The payment from the Purchaser to
the Vendor pursuant to this section shall be referred to herein as the "DC Credit Recovery
Payment".
16.04 The Purchaser acknowledges that the Pickering FIA creates obligations with regard to the funding
of certain infrastructure in Seaton under the jurisdiction of the City. The Purchaser covenants and
agrees that it will abide by the terms and conditions of the Pickering FIA, and will execute any
Assignment and Assumption Agreement as reasonably required by the Vendor or the City.
Furthermore, the Purchaser acknowledges that the infrastructure projects to be funded pursuant to
the Pickering FIA are Cost Shared Services under the Seaton CSA, and the costs of which are to be
cost shared pursuant to the terms of the Seaton CSA.
16.05 The Purchaser acknowledges that the Lands include Phase 1 RFEA Lands and, therefore, prior to
the issuance of a building permit with respect to the development of such lands, unless otherwise
provided for in a front ending agreement relating to Subsequent Phase development, the Purchaser
will have to pay, in addition to any Attribution Development Charges payable with respect to the
development of the Lands, the Attribution Prepayment applicable to the Property. The Phase 1
RFEA provides that Development Charge Credits earned by virtue of the payment of the
Attribution Prepayment are not able to be utilized to satisfy the Attributions Development Charges
payable upon the issuance of building permits for lands that are Phase 1 RFEA Lands, and further
such Development Charge Credits will be administered by the Seaton Trustee.
16.06 The Purchaser acknowledges that on Closing the Purchaser will be a Provincial Successor (as such
term is defined in the Seaton CSA). Furthermore, by virtue of being a Provincial Successor the
Purchaser acknowledges and agrees that at Closing it will have to make a payment to the Seaton
Trustee in an amount to be determined by the Seaton Trustee pursuant to the terms of the Seaton
CSA, which will bring the Purchaser into a position in which the Purchaser will have funded the
costs of Regional Infrastructure pursuant to the Phase 1 RFEA on the same basis as the other Private
Landowners within the Seaton Community, this payment to be referred to herein as the "Private
Landowner Equivalency Payment".
16.07 The Purchaser acknowledges and agrees that at Closing, it will make a payment to the Vendor in
an amount equal to the portion of the costs incurred by the Vendor for Cost Shared Services
applicable to the Lands up to the Closing Date as confirmed by the Seaton Trustee, unless otherwise
provided for herein, whether on a Developable Area Share or Drainage Area share or otherwise as
applicable (referred to herein as "Servicing Costs").
16.08 The Purchaser acknowledges that the Lands include Community Use Lands and that such
Community Use Lands are to be transferred to an Authority or the Seaton Trustee pursuant to the
terms of the Seaton CSA. The Purchaser acknowledges and agrees that it will abide by the terms
of the Seaton CSA with regard to such Community Use Lands which requires that they be conveyed
to an Authority or the Seaton Trustee, and further that the Assignment and Assumption Agreement
38997-2004 29477789.5
- 20 -
with regard to the Seaton CSA will specifically provide for such transfer of the Community Use
Lands.
16.09 The Seaton -Durham CSA provides for the recovery of certain costs of the construction of Regional
Infrastructure that relate to the over -sizing of such services for which Development Charge Credits
are not available. The Purchaser acknowledges that the Vendor has not made and is not making
any representations or warranties that any such construction costs will be recovered from the
Durham Owners.
SECTION 17
PREPARATION OF TRANSFER/DEED DOCUMENTS AND FEES/COSTS
17.01 The Transfer/Deed of the Lands will be prepared by the Vendor, except for the Affidavit of
Residence and Value of the Consideration ("Land Transfer Tax Affidavit"), which will be
prepared by the Purchaser.
17.02 The Purchaser shall pay its own legal costs and registration costs. The Purchaser shall be
responsible for the payment of any applicable Land Transfer Tax and registration fees and any other
taxes and fees which may be payable in connection with the registration of the transfer/deed of the
Property. Furthermore, the Purchaser agrees that it shall pay to the Vendor on Closing, the
following amounts:
(a) an amount equal to the amount of Land Transfer Tax, registration fees and any other
taxes and fees payable in connection with the Vendor's purchase of the Lands from HMQ
pursuant to the terms of the HMQ Purchase Agreement, which are not recoverable by the
Vendor from the appropriate taxing authority;
(b)
all legal and other third -party expenses incurred or payable by the Vendor in connection
with (i) the Transaction; and (ii) the acquisition of the Lands from HMQ pursuant to the
terms of the HMQ Purchase Agreement, including, but not limited to, any costs
associated with any environmental site investigations performed by or on behalf of the
Vendor with respect to the Lands;
(c) all marketing costs for which the Vendor is responsible or for which the Vendor has been
required to pay in order to acquire the Lands pursuant to the terms of the HMQ Purchase
Agreement,
collectively, the "HMQ Acquisition Costs".
The HMQ Acquisition Costs shall be set out in the Statement of Adjustments.
SECTION 18
TENDER
18.01 Any tender of money or documents pursuant to this Agreement may be made on the Vendor or the
Purchaser or their respective solicitors. Unless expressly set out to the contrary herein, money must
be tendered in Canadian funds by electronic wire. The Vendor and the Purchaser acknowledge and
agree that insofar as the tender of any documents to be electronically registered is concerned, the
tender of same will be deemed to be effective and proper when the solicitor for the party tendering
has completed all steps required by Teraview in order to complete this Transaction that can be
38997-2004 29477789.5
-21 -
performed or undertaken by the tendering party's solicitor without the cooperation or participation
of the other party's solicitor, and specifically when the tendering party's solicitor has electronically
"signed" the Transfer/Deed of Land and any other closing document, if any, to be electronically
registered for completeness and granted access to the other party's solicitors to same, but without
the necessity for the tendering party's solicitor actually releasing such documents to the other
party's solicitor for registration.
SECTION 19
ADJUSTMENTS
19.01 Adjustments between the Vendor and the Purchaser shall be made on the Closing Date for taxes,
local improvement rates, utility costs, rents, legal costs, HMQ Acquisition Costs and other matters
or items which are ordinarily the subject of adjustment for the purchase and sale of a property
similar to the Property in the Province of Ontario. Such Adjustments shall be made on the basis
that, except as may be otherwise expressly provided for in this Agreement:
(a) the Vendor shall be responsible for all expenses and liabilities and entitled to all income
from the Property up to the Closing Date; and
(b)
the Purchaser shall be responsible for all expenses and liabilities and entitled to all income
from the Property from and including the Closing Date.
19.02 Adjustments that cannot be determined on the Closing Date shall be determined by the parties as
soon after the Closing Date as is reasonably possible. Any amounts payable by one party to the
other, as determined by the parties, acting reasonably, shall be paid within thirty (30) days of the
request for such payment. On the Closing Date, the Vendor and the Purchaser shall exchange
undertakings to re -adjust the foregoing items, if necessary.
19.03 All Adjustments to be made under Section 19.01 shall be completed on or before the date which is
no later than six (6) months from the Closing Date and no re -adjustment may be made by either
party thereafter.
SECTION 20
ELECTRONIC REGISTRATION
20.01 Where the Property is in an area where electronic registration is mandatory and the Transaction
will be completed by electronic registration pursuant to Part III of the Land Registration Reform
Act, R.S.O. 1990, c. L.4, and the Electronic Registration Act, S.O. 1991, c.44, and any amendments
thereto, the Vendor and Purchaser acknowledge and agree that the exchange of closing funds, non -
registrable documents and other closing deliverables provided for herein and the release thereof to
the Vendor and Purchaser will:
(a) not occur at the same time as the registration of the transfer/deed (and any other documents
intended to be registered in connection with the completion of this Transaction); and
(b)
be subject to conditions whereby the lawyer(s) receiving any of the closing deliverables
will be required to hold same in escrow and not release same except in accordance with the
terms of a document registration agreement between the said lawyers, the form of which is
as recommended from time to time by the Law Society of Upper Canada (the "Document
Registration Agreement") and attached hereto as Schedule E.
38997-2004 29477789.5
- 22 -
SECTION 21
CLOSING DELIVERABLES
21.01 Subject to the provisions of this Agreement, the Vendor covenants that it shall execute or cause to
be executed and shall deliver or cause to be delivered to the Purchaser or the Purchaser's solicitors
on or before the Closing Date, each of the following:
(a) possession of the Property in an As Is Where Is condition, subject to the Lease(s), and
subject to the rights of others as set out in the Permitted Encumbrances;
(b) an Assignment and Assumption Agreement for the Lease(s);
(c) an Assignment and Assumption Agreement for each of the Development Agreements;
(d) an Assignment and Assumption Agreement for the Permitted Encumbrances, as applicable;
(e) an Assignment and Assumption Agreement for the Participation Agreement;
(f) notice to the tenant pursuant to the Lease informing it of the sale of the Lands and directing
it to make future rent payments to the Purchaser;
(g)
an executed Transfer/Deed of Land in registrable form duly executed by the Vendor in
favour of the Purchaser (save for any Land Transfer Tax Affidavit);
(h) an undertaking to re -adjust the statement of Adjustments, if necessary, upon written
demand;
(i) a direction regarding the payment of funds;
(j) statement of Adjustments;
(k) Document Registration Agreement as set out in Schedule E;
(1) the ROFR Agreement in the form attached hereto as Schedule G; and
(m) such other deeds, conveyances and other documents as the Purchaser or its solicitors may
reasonably require in order to implement the intent of this Agreement.
21.02 Subject to the provisions of this Agreement, the Purchaser covenants that it shall execute or cause
to be executed and shall deliver or cause to be delivered to the Vendor or the Vendor's Solicitors
on or before the Closing Date:
(a) confirmation of wire transfer for the balance of the Purchase Price and Adjustments due on
the Closing Date;
(b)
confirmation of wire transfer for any Development Agreement Payment payable to the
Vendor, including the DC Credit Recovery Payment, the Private Landowner Equivalency
Payment, and Servicing Costs;
(c) a certified cheque, bank draft or confirmation of wire transfer for any Development
Agreement Payment payable to the applicable trustee under a Development Agreement;
38997-2004 29477789.5
- 23 -
(d) confirmation of delivery of Development Agreement Security to any applicable authority
or trustee under a Development Agreement, if applicable;
(e) an undertaking to re -adjust the statement of Adjustments, if necessary, upon written
demand;
(f) HST Declaration and Indemnity, as contemplated in Section 4, if applicable;
(g) Document Registration Agreement in the form attached as Schedule E;
(h) an Assignment and Assumption Agreement for the Lease(s);
(i) an Assignment and Assumption Agreement for each of the Development Agreements;
(j) an Assumption Agreement for the Permitted Encumbrances, as applicable;
(k) an Assignment and Assumption Agreement for the Participation Agreement;
(1) the ROFR Agreement in the form attached hereto as Schedule G;
(m) the Purchaser's Indemnity and Covenant Not to Sue in the form attached hereto as
Schedule H; and
(n) such other deeds, conveyances, resolutions and other documents as the Vendor or its
solicitors may reasonably require in order to implement the intent of this Agreement.
SECTION 22
NOTICE
22.01 Any notice under this Agreement is sufficiently given if delivered personally or if sent by ordinary
prepaid mail or prepaid courier or electronic facsimile machine (including e-mail) addressed to the
Purchaser at:
Shirva Investment and Developments Corporation
350 Burnhamthorpe Rd. W.
Unit 301
Mississauga
Ontario, L5B 3J1
Attention:
Telephone:
Email:
and to the Purchaser's Solicitors at:
Ameen Law Professional Corporation
51 Village Centre Place
Mississauga
Ontario, L4Z 1V9
38997-2004 29477789.5
- 24 -
Attention: Javad Ameen
Telephone: 905-949-9000
Email: javad@ameenlaw.com
ameenlaw.com
and to the Vendor at:
The Corporation of the City of Pickering
One The Esplanade
Pickering
Ontario, L 1 V 6K7
Attention: Paul Bigioni, Director, Corporate Services and City Solicitor
Telephone: (905) 420-4660 ext. 2048
Email: pbigioni(aipickering.ca
and to the Vendor's Solicitors at:
Torys LLP
79 Wellington Street West
Suite 3000
Box 270, TD Centre
Toronto
Ontario, M5K 1N2
Attention: Dan Ford / Andy Gibbons
Telephone: (416) 865-73721(416) 865-8226
Email: dford@torys.com / agibbons@torys.com
or at such other addresses as the Vendor and the Purchaser may designate from time to time. Any
such notice shall be conclusively deemed to have been given and received upon the same day if
personally delivered or sent by facsimile or email, or, if mailed, three (3) Business Days after the
same is mailed. Any party may, at any time by notice given in writing to the other party, change
the address for service of notice on it.
SECTION 23
CONFIDENTIALI'T'Y
23.01 The Vendor and Purchaser agree to take all necessary precautions to maintain the confidentiality
of the terms and conditions contained herein. The parties acknowledge that this Agreement and any
information or documents that are provided hereunder may be released pursuant to the applicable
provisions of the Freedom of Information and Protection of' Privacy Act, R.S.O. 1990, c. F.31, as
amended and the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990,
c. M.56, as amended and Open Data may be released pursuant to the Open Data Directive. This
acknowledgment shall not be construed as a waiver of any right to object to the release of this
Agreement or of any information or documents.
38997-2004 29477789.5
-25-
23.02 The Purchaser agrees to ensure that the Purchaser, its officers, employees, agents and sub-
contractors shall, subject to Section 23.01, maintain the confidentiality and security of all materials
and information which is the property of the Vendor and in the possession or under the control of
the Purchaser pursuant to this Agreement. The Purchaser agrees to ensure that the Purchaser, its
officers, employees, agents and sub -contractors shall not directly or indirectly disclose or use, either
during or following the term of this Agreement, except where required by law, any material or
information belonging to the Vendor pursuant to this Agreement, without first obtaining the prior
written consent of the Vendor for such disclosure or use and in the event of termination of this
Agreement, the Purchaser will be responsible for returning all such documentation and information
to the Vendor without making copies.
SECTION 24
GENERAL
24.01 From and after the Execution Date, the Purchaser shall indemnify and save harmless the Vendor
parties from, any and all costs (including legal, consultant and witness costs and fees), claims,
demands, actions, prosecutions, administrative hearings, fines, losses, damages, penalties,
judgments, awards (including awards of costs) and liabilities (including sums paid in settlement of
claims), including but not limited to any such costs, claims, demands, actions, prosecutions,
administrative hearings, fines, losses, damages, penalties, judgments, awards and liabilities that
may result from a breach by the Vendor under the HMQ Purchase Agreement, that may arise as a
result of any act or omissions on the part of the Purchaser or any breach by the Purchaser of the
terms of this Agreement. For greater certainty, the Purchaser acknowledges and agrees that the
Vendor has agreed to enter into the HMQ Purchase Agreement, solely for the purposes of enabling
the sale of the Lands to the Purchaser as set out in this Agreement.
24.02 Time shall in all respects be of the essence of this Agreement, provided that the time for doing or
completing any matter provided for in this Agreement may be extended or abridged by an
agreement in writing, signed by the Vendor and the Purchaser or by an agreement between their
respective solicitors who are hereby expressly authorized in this regard. If anything in this
Agreement is to be done on a day which is not a Business Day, the same shall be done on the next
succeeding Business Day.
24.03 This Agreement shall be binding upon, and enure to the benefit of, the Vendor and the Purchaser
and their respective successors and permitted assigns. The Vendor and the Purchaser acknowledge
and agree that the representations, covenants, agreements, rights and obligations of the Vendor and
the Purchaser under this Agreement shall not merge on the completion of this Transaction, but shall
survive completion and remain in full force and effect and be binding upon the parties, save and
except as may be otherwise expressly provided for in this Agreement.
24.04 Whenever the singular is used in this Agreement, it shall mean and include the plural and whenever
the masculine gender is used in this Agreement it shall mean and include the feminine gender if the
context so requires.
24.05 This Agreement constitutes the entire agreement between the parties and there is no representation,
warranty, collateral agreement or condition affecting this Agreement or the Property, except as
specifically set forth in this Agreement. This Agreement may not be modified or amended except
by an instrument in writing signed by the parties hereto.
38997-2004 29477789.5
-26-
24.06 This Agreement and the rights and obligations of the Vendor and the Purchaser shall be determined
in accordance with the laws of the Province of Ontario.
24.07 Wherever this Agreement makes reference to a requirement for the consent or approval of the
Vendor, such consent must be prior written consent and may be arbitrarily and unreasonably
withheld in the sole and absolute discretion of the Vendor.
24.08 No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver
of any other provision (whether or not similar) nor shall any waiver constitute a continuing waiver
unless otherwise expressed or provided.
24.09 If any provision of this Agreement or part thereof or the application thereof to any person or
circumstance, to any extent, shall be determined to be invalid or unenforceable, the remainder of
this Agreement or the application of such provisions or part thereof to any person, party or
circumstance other than those to which it is held invalid or unenforceable shall not be affected
thereby. Each covenant, obligation and agreement in this Agreement shall be separately valid and
enforceable to the fullest extent permitted by law.
24.10 Each of the parties hereto shall from time to time hereafter and upon any reasonable request of the
other and in such form as may be satisfactory to both parties hereunder, execute and deliver, make
or cause to be made all such further acts, deeds, assurances and things as may be required or
necessary to more effectually implement and carry out the true intent and meaning of this
Agreement.
SECTION 25
IRREVOCABLE PERIOD
25.01 Signature of this Agreement by the Purchaser and the submission thereof to the Vendor constitutes
an offer under seal, which is irrevocable for ten (10) days from the date it is submitted to the Vendor
and open for acceptance by the Vendor during said ten (10) day period. This offer, once accepted
on the Execution Date, constitutes a binding contract of purchase and sale. This offer may be made
and accepted by electronic transmission, including electronic signature provided that the original
hard copy, with original signatures is received by both parties within five (5) days of the electronic
acceptance. The Purchaser, in submitting this offer, acknowledges that there has been no promise
or representation or assurance given to the Purchaser that any of the terms and conditions in this
offer are or will be acceptable to the Vendor.
[no further text on this page]
38997-2004 29477789.5
IN WITNESS WHEREOF the parties hereto have executed this Agreement as evidenced
by their properly authorized officers in that behalf as of the day and year first above written.
-I�
OFFERED BY the Purchaser this e7 day of Y' , 2020.
SHIRVA 1NVESTM
DEVELOPMENTS
By:
By:
NT
OR
A
RATION
Nam IJo_Ce.43--7 -Syrft-o1
Title: eg-S-cio---6<
Name: I%f}-P-7rea A'3
Title: Fr46r !'
IIWe have authority to bind the
Corporation
ACCEPTED BY the Vendor this day of , 2020.
THE CORPORATION OF THE CITY OF
PICKERING
By:
By.
Name: Tony Prevedel
Title: Chief Administrative Officer
Name:
Title:
IIWe have authority to bind the
Corporation
SCHEDULE A-1
DESCRIPTION OF LANDS
PART OF LOT 24, CONCESSION 5 PICKERING
(Areas to be determined upon completion of the reference plan prepared pursuant to Section 13.01, and in
accordance with the mapping at Schedule A-2)
38997-2004 29477789.5
SCHEDULE A-2
SKETCH OF LANDS
! ►WAY7
411.7
/ KOC. iQ
F ' Prime q•dr+erw
:9 Asa
8.0.7251
SLOG% i!
Pfef*.
lawepo
M. 5 WI
- HIGHWAY 4.07
38997-2004 29477789.5
TRANSfTWAY
(a) General Encumbrances:
(i)
SCHEDULE B
PERMITTED ENCUMBRANCES
the Lease(s), if any (for greater certainty including expired leases registered against title to
the Lands), and any notices of such leases registered on title to the Lands, including all
easements, rights of way, restrictions, restrictive covenants, servitudes and other similar
rights in land contained in the Lease(s), which exist as of the Closing Date and any
leasehold mortgages or security interests relating to tenants or the tenants' interest in
respect thereof and which do not encumber the interest of the landlord thereunder;
(ii) liens for real property taxes (which term includes charges, rates and assessments) or
charges for electricity, power, gas, water and other services and utilities in connection with
the Property or for construction in connection with the Property for amounts the payment
of which is not yet due or delinquent;
(iii) any easements, rights of way, restrictions, building schemes, licences, restrictive covenants
and servitudes, rights of access or use, airport zoning regulations and other similar rights
in land (including, without limitation, rights of way and servitudes for sewers, drains, gas
and water mains, electrical power, telephone and cable conduits, poles, wires or cables)
granted to, reserved or taken by any person which do not, in the aggregate, materially and
adversely impair the use or marketability of any of the Property for the purposes for which
it is presently held, and any rights reserved or vested in any Authority or public or private
utility by the terms of any lease, licence, franchise, grant, agreement or permit, subdivision,
development, servicing, encroachment, site plan, parking or other similar agreement with
any Authority or public or private utility;
(iv) title defects or irregularities which do not, in the aggregate, materially and adversely impair
the use of the Property for the purpose for which it is presently held;
(v) any cost sharing, common use, reciprocal or other similar agreements relating to the use
and/or operation of the Property and/or adjoining properties provided the same are
complied with in all material respects and all security given by the parties thereto to each
other to secure their respective obligations thereunder;
(vi) any subsisting reservations, limitations, provisos, conditions or exceptions, including
royalties, contained in the original grant of the Property from the Crown;
(vii) any rights of expropriation, access or use, or any other right conferred or reserved by or in
any statute of Canada or the Province of Ontario;
(viii) the provisions of all applicable laws including by-laws, regulations, ordinances, land use
contracts, development agreements and similar instruments relating (without limitation) to
development, use and zoning;
38997-2004 29477789.5
(ix) encroachments by any improvements on the Property over adjoining lands and easements
or rights of way and/or any improvements on adjoining lands encroaching on the Property
which do not materially and adversely affect the present use of the Property;
(x) all registered and unregistered agreements, easements, rights, covenants and/or restrictions
in favour of municipalities, publicly or privately regulated utilities or adjoining owners, or
that otherwise run with the Lands; and
(xi) any encroachments that are shown on existing surveys or as may be revealed by an up-to-
date survey.
Specific Encumbrances:
(i)
All instruments registered on title to the Property as of the Closing Date, including but
not limited to:
1. Notice of the Phase 1 RFEA;
2. Notice of the Pickering FIA;
3. Notice of the Seaton CSA;
4. Notice of the Seaton -Durham CSA; and
5. Notice of the Participation Agreement.
SCHEDULE C
PROPERTY DOCUMENTS
[Note: Vendor to provide within three (3) days of the date of receipt by the Vendor of same from
HMQ in accordance with Section 5.05.]
SCHEDULE D
INTENTIONALLY DELETED
BETWEEN:
TORYS LLP
AND:
SCHEDULE E
DOCUMENT REGISTRATION AGREEMENT
(hereinafter referred to as the "Vendor's Solicitor")
(hereinafter referred to as the "Purchaser's Solicitor")
RE: The Corporation of the City of Pickering (the "Vendor") sale to <> (the "Purchaser") of the property
legally described as O, City of <>, being the whole of PIN <>(LT) (the "Property" pursuant to an
Agreement of Purchase and Sale between the Purchaser, as purchaser, and the Vendor, as vendor, dated <>
and accepted O (the "Purchase Agreement"), scheduled to be completed on <> (the "Closing Date")
Holding Deliveries
In Escrow
Advising of
Concems with
Deliveries
Selecting Solicitor
Responsible for
Registration
FOR GOOD AND VALUABLE CONSIDERATION (the receipt and
sufficiency of which is hereby expressly acknowledged), the parties hereto hereby
undertake and agree as follows:
1. The Vendor's Solicitor and the Purchaser's Solicitor shall hold all funds, keys and closing
documentation exchanged between them (the "Requisite Deliveries") in escrow, and shall not release
or otherwise deal with same except in accordance with the terms of this Agreement. Both the
Vendor's Solicitor and the Purchaser's Solicitor have been authorized by their respective clients to
enter into this Agreement. Once the Requisite Deliveries can be released in accordance with the
terms of this Agreement, any monies representing payout funds for mortgages to be discharged shall
be forwarded promptly to the appropriate mortgage lender.'
2. Each of the parties hereto shall notify the other as soon as reasonably possible following
their respective receipt of the Requisite Deliveries (as applicable) of any defect(s) with respect to same.
3. The Purchaser's Solicitor shall he responsible for the registration of the Electronic
Documents (as hereinafter defined) unless the box set out below indicating that the Vendor's
Solicitor will be responsible for such registration has been checked. For the purposes of this
Agreement, the solicitor responsible for such registration shall be referred to as the "Registering
Solicitor" and the other solicitor shall he referred to as the' Non -Registering Solicitor":
Vendor's Solicitor will be registering the Electronic Documents
'Solicitors should continue to refer to the Law Society of Upper Canada practice guidelines relating to recommended procedures to follow
for the discharge of mortgages.
Responsibility of
Non -Registering
Solicitor
Responsibility of
Registering
Solicitor
Release of Requisite
Deliveries by Non -
Registering Solicitor
Retuming
Deliveries where
Non -registration
4. The Non -Registering Solicitor shall, upon his/her receipt and approval of the Requisite
Deliveries (as applicable), electronically release for registration the Electronic Documents and shall
thereafter be entitled to release the Requisite Deliveries from escrow forthwith following the earlier
of
a) the registration of the Electronic Documents; or
b) receipt of notification from the Registering Solicitor of the registration of the
Electronic Documents.
5. The Registering Solicitor shall, subject to paragraph 7 below, on the Closing Date,
following his/her receipt and approval of the Requisite Deliveries (as applicable), register the
documents listed in Schedule A annexed hereto (referred to in this agreement as the "Electronic
Documents") in the stated order of priority therein set out, as soon as reasonably possible once same
have been released for registration by the Non- Registering Solicitor, and immediately thereafter
notify the Non -Registering Solicitor of the registration particulars thereof by telephone or telefax (or
other method as agreed between the parties).
6 Upon registration of the Electronic Documents and notification of the Non -Registering
solicitor in accordance with paragraph 5 above, the Non- Registering Solicitor shall be entitled to
forthwith release the Requisite Deliveries from escrow.
7. Any of the parties hereto may notify the other party that he/she does not wish to proceed
with the registration of the Electronic Documents, and provided that such notice is received by the
other party before the release of the Requisite Deliveries pursuant to this Agreement and before the
registration of the Electronic Documents, then each of the parties hereto shall forthwith return to the
other party their respective Requisite Deliveries.
Counterparts 8. This agreement may be signed in counterparts, and shall be read with all changes of gender
& Gender and/or number as may be required by the context.
Purchase 9. Nothing contained in this agreement shall be read or construed as altering the respective
Agreement rights and obligations of the Purchaser and the Vendor as more particularly set out in the Purchase
Prevails if
Conflict or Agreement, and in the event of any conflict or inconsistency between the provisions of this
Inconsistency agreement and the Purchase Agreement, then the latter shall prevail.
Telefaxing 10. This agreement (or any counterpart hereof), and any of the closing documents hereinbefore
Deliveries contemplated, may be exchanged by telefax or similar system reproducing the original, provided that
8 Providing
Originals if all such documents have been properly executed by the appropriate parties. The party transmitting
Requested any such document(s) shall also provide the original executed version(s) of same to the recipient
within 2 business days after the Closing Date, unless the recipient has indicated that he/she does not
require such original copies.
Dated this day of <>, 20 . Dated this day of <>, 20 .
Name/Firm Name of Vendor's Solicitor Name/Firm Name of Purchaser's Solicitor
2 For the purpose of this Agreement, the term 'registration - shall mean the issuance of registration numher(s) in respect of the Electronic
Documents by the appropriate Land Registry Office.
(Signature) (Signature)
Note: This version of the Document Registration Agreement was adopted by the Joint LSUC-CBAO Committee
on Electronic Registration of Title Documents on March 29, 2004 and posted to the web site on April 8, 2004.
Schedule "A"
1. Transfer from The Corporation of the City of Pickering to o; and
2. ROFR in favour of The Corporation of the City of Pickering.
SCHEDULE F
INTENTIONALLY DELETED
BETWEEN:
SCHEDULE G
ROFR AGREEMENT
XXXX
(the "Grantor")
-and-
THE CORPORATION OF THE CITY OF PICKERING
(the "Grantee")
WHEREAS the Grantor is the registered owner of the lands and premises described in Schedule "A" hereto
(the "Property");
AND WHEREAS the Grantor has agreed to grant to the Grantee certain rights with respect to the Property
on the terms and subject to the conditions of this Agreement;
NOW THEREFORE, in consideration of the mutual covenants and agreements set out in this Agreement
and for other good and valuable consideration (the receipt and sufficiency of which are hereby
acknowledged), the parties covenant and agree as follows:
ARTICLE 1
INTERPRETATION
1.1 Definitions
In this Agreement, all capitalized terms shall have the respective meanings assigned thereto below:
"Acceptance Notice" has the meaning ascribed thereto in Section 2.1(b)(i).
"Affiliate" has the meaning set out in the Business Corporations Act, R.S.O. 1990, c. B. 16.
"Agreement" means this agreement, as
"Section", "Sub -Section" and "Schedule"
case may be, of this Agreement.
"Business Day" means any day other than
Province of Ontario.
38997-2004 29477789.5
further amended from time to time, and "Article",
mean the specified article, section or schedule, as the
a Saturday, Sunday or statutory or civic holiday in the
`'Closing" has the meaning ascribed thereto in Section 2.1(c).
"Closing Date" has the meaning ascribed thereto in Section 2.1(c).
"Development Agreements" has the meaning ascribed to such term in the Original Purchase
Agreement.
"HST" means the goods and services tax or harmonized sales tax payable pursuant to Part IX of the
Excise Tax Act (Canada), as such statute may be amended, modified or replaced from time to time,
including any successor statute.
"Offer Period" has the meaning ascribed thereto in Section 2.1(b).
"Offeror" has the meaning ascribed thereto in Section 2.1(a).
"OREA'' means the Ontario Real Estate Association, together with its successors and assigns.
"Original Purchase Agreement" means the agreement of purchase and sale with respect to the
Property dated ■ made between the Grantee, as vendor and the Grantor, as purchaser.
"Original Purchase Price" means the purchase price for the Property paid by the Grantor to the
Grantee pursuant to the terms of the Original Purchase Agreement.
"Property" has the meaning ascribed thereto in the recitals, and including all buildings, structures,
improvements located thereon and appurtenances thereto.
"Rejection Notice" has the meaning ascribed thereto in Section 2.1(b)(ii).
"ROFR Notice" has the meaning ascribed thereto in Section 2.1(a).
"Sale Interest" has the meaning ascribed thereto in Section 2.1(a).
"Sale Price" has the meaning ascribed thereto in Section 2.1(a)(ii).
"Third Party Offer" has the meaning ascribed thereto in Section 2.1(a).
1.2 Schedule
The following Schedule is attached to and forms part of this Agreement:
Schedule A - Legal Description of the Property
38997-2004 29477789.5
1.3 Interpretation
(a) Headings and Table of Contents. The division of this Agreement into Articles, Sections and
Sub -Sections and the insertion of headings are for convenience of reference only and will not
affect the construction or interpretation of this Agreement.
(b) Number and Gender. Unless the context requires otherwise, words importing the singular
include the plural and vice versa and words importing gender include all genders.
(c) Severability. If any provision contained in this Agreement or its application to any party or
circumstance will, to any extent, be invalid or unenforceable, the remainder of this
Agreement or the application of such provision to parties or circumstances other than those
to which it is held invalid or unenforceable, will not be affected, and each provision of this
Agreement will be separately valid and enforceable to the fullest extent permitted by law.
(d) Time. Time will be of the essence of this Agreement. Except as expressly set out in this
Agreement, the computation of any period of time referred to in this Agreement will exclude
the first day and include the last day of such period. The time limited for performing or
completing any matter under this Agreement may be extended or abridged by an agreement
in writing by the parties hereto. If any payment is required to be made or other action is
required to be taken pursuant to this Agreement on a day which is not a Business Day, then
such payment or action will be made or taken on the next Business Day.
(e) Governing Law. This Agreement will be governed by and construed in accordance with the
laws of the Province of Ontario and the federal laws of Canada applicable therein.
ARTICLE 2
RIGHT OF FIRST REFUSAL AND BUY BACK
2.1 Right of First Refusal
(a) If at any time, and from time to time, on or prior to the tenth (10t) anniversary of the date of
this Agreement, the Grantor receives a bona fide written offer (a "Third Party Offer") from
any third party (the "Offeror") to purchase all or part of the Property (the "Sale Interest"),
which the Grantor is willing to accept, the Grantor shall, before accepting such Third Party
Offer, deliver written notice thereof to the Grantee (the "ROFR Notice") within three
(3) Business Days following the date on which the Third Party Offer was received by the
Grantor, which notice shall:
(i)
confirm that the Grantor has received a Third Party Offer which the Grantor is
willing to accept;
(ii) contain an offer to sell the Sale Interest to the Grantee on the same terms and
conditions as those contained in the Third Party Offer save and except that the
purchase price payable by the Grantee for the Sale Interest shall be:
38997-2004 29477789.5
(A) either (i) where the Sale Interest is comprised of all of the Property, the
Original Purchase Price; or (ii) where the Sale Interest is comprised of part
of the Property, the amount determined on a proportionate basis calculated
using the acreage of the Sale Interest multiplied by the amount per acre of
the Original Purchase Price; plus
(B) any amounts paid by the Grantor pursuant to the terms of the Development
Agreements, less any amounts which the Grantor may have received by way
of development credits or otherwise, during the period of the Grantor's
ownership of the Property.
The purchase price at which the Sale Interest is offered for sale to the Grantee as
determined in accordance with this Section is referred to as the "Sale Price".
(iii) contain a true and complete copy of the Third Party Offer signed by the Offeror; and
(iv) be accompanied by a certificate of the Grantor stating that: (A) the copies of the
Third Party Offer contained in such notice are true and complete copies thereof;
(B) such Third Party Offer has not been amended, restated and/or supplemented; and
(C) such offer constitutes a Third Party Offer in accordance with the terms hereof.
(b) The Grantee shall have the right, exercisable by notice in writing given to the Grantor within
fifteen (15) Business Days following receipt of a ROFR Notice (the "Offer Period") to elect
to:
(i)
purchase the Sale Interest (the "Acceptance Notice") at the Sale Price and on the
same terms and conditions contained in the Third Party Offer (except as set forth in
Section 2.1(c)); or
(ii) not to purchase the Sale Interest and to consent to the sale of the Sale Interest by the
Grantor to the Offeror at the purchase price and on the same terms and conditions
contained in the Third Party Offer (the "Rejection Notice").
(c) If within the Offer Period, the Grantee delivers an Acceptance Notice to the Grantor, there
shall be created at such time, automatically and without any further action or documentation,
a binding agreement of purchase and sale between the Grantor and the Grantee pursuant to
which the Grantor agrees to sell to the Grantee, and the Grantee agrees to purchase from the
Grantor, the Sale Interest at the Sale Price and on the same terms and conditions as those
contained in the Third Party Offer, provided that, subject to the satisfaction of the conditions
contained in the Third Party Offer, closing of the transaction of purchase and sale
(the ``Closing") will occur on the date which is sixty (60) days after the Grantee delivers the
Acceptance Notice (the "Closing Date").
(d) If no notice is delivered by the Grantee pursuant to Section 2.1(b), the Grantee shall be
deemed to have delivered the Rejection Notice.
38997-2004 29477789.5
(e) If the Grantee has delivered, or has been deemed to deliver, the Rejection Notice, the Grantor
may sell the Sale Interest to the Offeror, at the purchase price and on the terms and conditions
contained in the Third Party Offer; provided that if such sale of the Sale Interest to the Offeror
does not occur on such terms within one hundred and twenty (120) days following the expiry
of the Offer Period, the Grantor must again comply with this Section 2.1 in respect of any
future proposed sale of all or part of the Property.
If a sale of part of the Property only is completed by the Grantor pursuant to this Section 2.1,
the Grantee's right of first refusal shall continue in full force and effect with respect to the
remainder of the Property.
The Grantor and the Grantee agree and acknowledge that the Grantor shall be entitled to
transfer the Property to an Affiliate without triggering this right of first offer and without
consent of the Grantee, provided the Grantor provides the Grantee with fifteen (15) days prior
written notice of such transfer.
2.2 Right to Buy Back
(a) If the Grantor has failed to:
(i)
obtain and deliver copies to the Grantee, of all development approvals, building
permits and other third permits or consents required to construct on the Property a
building of not less than 150,000 square feet (the "New Building"); and
(ii) commence construction of the New Building,
on or before the fifth (5th) anniversary of the date of this Agreement, then at any time, and
from time to time, on or after the fifth (5th) anniversary of the date of this Agreement, the
Grantee shall have the right, but not the obligation, upon written notice to the Grantor, to
repurchase the Property, for a purchase price equal to:
(A) the Original Purchase Price; plus
(B) any amounts paid by the Grantor pursuant to the terms of the Development
Agreements, less any amounts which the Grantor may have received by way
of development credits or otherwise, during the period of the Grantor's
ownership of the Property.
(b) If the Grantee delivers written notice of its intention to repurchase the Property in accordance
with Section 2.2(a), there shall be created at such time, automatically and without any further
action or documentation, a binding agreement of purchase and sale between the Grantor and
the Grantee pursuant to which the Grantor agrees to sell to the Grantee, and the Grantee
agrees to purchase from the Grantor, the Property at the price calculated in accordance with
Section 2.2(a) and on the terms and conditions set out in the OREA form of agreement of
purchase and sale (commercial) current (as at the date of execution of this Agreement),
provided that, Closing will occur on the date which is sixty (60) days after the Grantee
delivers the written notice in accordance with Section 2.2(a).
38997-2004 29477789.5
2.3 Closing
The following provisions shall pertain to the Closing pursuant to Section 2.1 or 2.2 hereof, as applicable:
(a) Closing shall occur at 12:00 p.m. on the Closing Date, or such earlier or later date as may be
mutually agreed upon, in writing, by the parties to the transaction; and
(b)
on or before Closing:
(i)
the Grantor shall cause to be executed and delivered to the Grantee an electronic
transfer(s)/deed(s) of land/registerable deeds of sale/transfers of land transferring the
Sale Interest to the Grantee or as it may direct, and containing the statements of the
Grantor and its solicitors pursuant to Section 50(22) of the Planning Act (Ontario);
(ii) the Grantor shall certify that it is not a non-resident of Canada within the meaning of
Section 116 of the Income Tax Act (Canada); and
(iii) the Grantor shall execute and deliver or cause to be executed and delivered such
other closing documents which are required to effectively transfer and convey the
Sale Interest or the Property, as applicable, to the Grantee and which the Grantee or
its solicitors have reasonably requested on or before the Closing Date.
ARTICLE 3
GENERAL
3.1 Registration
The Grantee may prepare and register on title to the Property, at the Grantee's cost, a notice in respect of this
Agreement (the "Notice"). Upon expiry of this Agreement, the Grantee shall arrange for the discharge from
title to the Property of such Notice at the Grantee's cost.
3.2 Planning Act
This Agreement and the completion of any transaction of purchase and sale contemplated by this Agreement
are subject to compliance with Section 50 of the Planning Act (Ontario).
3.3 Further Assurances
Each of the parties hereto shall promptly do, make, execute or deliver, or cause to be done, made, executed
or delivered, all such further acts, documents and things as the other parties to this Agreement may reasonably
require from time to time for the purpose of giving effect to this Agreement and shall use reasonable efforts
and take all such steps as may be reasonably within their power to implement to their full extent the provisions
of this Agreement.
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3.4 Waiver, Amendment
Except as expressly provided in this Agreement, no amendment or waiver of this Agreement shall be binding
unless executed in writing by the party to be bound by it. No waiver of any provision of this Agreement shall
constitute a waiver of any other provision nor shall any waiver of any provision of this Agreement constitute
a continuing waiver unless otherwise expressly provided.
3.5 Successors and Assigns
All of the covenants and agreements contained in this Agreement will be binding upon and will enure to the
benefit of and be enforceable by the parties hereto and their respective successors and assigns. This
Agreement is intended to run with title to the Property and will be binding on the Grantor's successors in
interest as owner of the Property or any part thereof or interest therein.
3.6 Agreement Runs with Land
The Grantor acknowledges that the provisions of this Agreement run with title to the Property, and the Grantor
covenants not to sell, transfer or otherwise alienate the Property or any part thereof unless such transferee
agrees to be bound by the terms of this Agreement.
3.7 Notices
(a) Addresses for Notice. Any notice, demand, statement, request or other communication (in
this Agreement referred to as "notice") required or permitted to be given under this
Agreement shall be in writing and shall be deemed to have been sufficiently and effectually
given if signed by or on behalf of the party giving the notice and personally delivered, sent
by facsimile or email or mailed by registered prepaid post to the intended recipient addressed
as follows:
(A) in the case of the Grantor, addressed to it at:
■
Attention: ■
Facsimile No.: (®)
Email: ■
(B) and in the case of the Grantee addressed to it at:
The Corporation of the City of Pickering
One The Esplanade
Pickering
Ontario, L IV 6K7
Attention: Paul Bigioni, Director, Corporate Services and City Solicitor
Telephone: (905) 420-4660 ext. 2048
38997-2004 29477789.5
Email: pbigioni@pickering.ca
(b) Receipt of Notice. Any notice given as aforesaid shall be conclusively deemed to have been
received on the date of such personal delivery or if sent by facsimile or email transmission
before 5:00 p.m. (local time of the recipient) on a Business Day on the date of such
transmission (and if not then on the next Business Day) or if sent by registered mail on the
third (3rd) Business Day following the mailing thereof, as the case may be. If a notice is sent
by facsimile or email, a copy thereof shall be sent on the same day by ordinary mail, postage
prepaid or personal delivery. In the event of a labour dispute, postal interruption or a
reasonable anticipation thereof, all notices required to be given under this Agreement shall
be sent by facsimile or email transmission or personally delivered.
(c)
Change of Address. Any party may from time to time change its address under this
Section by notice to the other party given in the manner provided by this Section.
3.8 Counterparts
This Agreement may be executed in counterparts, each of which shall be an original and all such counterparts
taken together shall constitute one and the same instrument. Delivery of an executed counterpart of this
Agreement by Facsimile transmission or by electronic delivery in portable document tormat (".pdf') shall be
equally effective as delivery of a manually executed counterpart thereof,
38997-.2004 29477789.5
IN WITNESS WHEREOF the parties have executed this Agreement effective as of the date first written
above.
■
Per:
Name:
Title:
Per:
Name:
Title:
UWe have the authority to bind the Corporation.
THE CO
Per:
F THE CITY OF PICKERING
Name: Tony Prevedel
Title:Chief Administrative Chief
Per:
Name:
Title:
U We have the authority to bind the Corporation.
38997-2004 29477789.5
SCHEDULE H
PURCHASER'S ENVIRONMENTAL INDEMNITY AND COVENANT NOT TO SUE
TO: The Corporation of the City of Pickering (the "Vendor")
AND TO: «Purchaser's Solicitor Name and/or Law Firm Name», its solicitors
RE: «Purchaser(s) Name» (the "Purchaser") purchase from the Vendor of the property legally
described as «Legal Description», being «the whole OR part» of PIN «Enter PIN»
(LT) (the "Property") pursuant to an Agreement of Purchase and Sale between the Purchaser, as purchaser,
and the Vendor, as vendor, accepted «Date Offer Accepted», as may be amended from time to time
(the "Purchase Agreement")
In consideration the closing of the Transaction and other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged:
1. The Purchaser agrees to accept, assume and take title the Property and any improvement thereon
in an "As Is Where Is" condition in accordance with section 5 of the Purchase Agreement.
2. The Purchaser acknowledges and hereby agrees to indemnify and save harmless the Vendor and
its employees, directors, officers, appointees and agents from, any and all costs (including legal,
consultant and witness costs and fees), claims, demands, actions, prosecutions, administrative
hearings, fines, losses, damages, penalties, judgments, awards (including awards of costs) and
liabilities (including sums paid in settlement of claims), that may arise as a result of the condition
of the Property, the presence of Hazardous Substances or Contaminants in, on or under the Lands,
the Buildings or any structure or paved surface, or in any environmental medium (including, but
not limited to, the soil, groundwater, or soil vapour on or under, or emanating from the Property),
any order issued by any Authority in connection with the condition of the Property, or any loss,
damage, or injury caused either directly or indirectly as a result of the condition of the Property
including, without limitation, non-compliance with Environmental Law or the existence of any
Hazardous Substance or Contaminant. Without limiting the generality of the foregoing, this
indemnification shall specifically cover costs incurred, from and after the Closing Date, in
connection with any claim for personal injury and/or death, property damage, investigation of
site conditions and/or any clean-up, remedial, removal, monitoring or restoration work required
by any federal, provincial, or local government agency or political subdivision because of the
presence of Hazardous Substances, in, on or under the Lands, the Buildings or any environmental
medium, structure or paved surface or emanating therefrom.
3. The Purchaser covenants and agrees that, effective as of the Closing Date, the Purchaser forever
releases and covenants not to sue the Vendor and its employees, directors, officers, appointees
and agents with respect to anything arising out of the environmental or any other condition of the
Property or the presence of Hazardous Substances or Contaminants in, on, under, or emanating
from or onto the Property, regardless of whether such environmental conditions or the presence
of Hazardous Substances or Contaminants is known or unknown by the Purchaser and regardless
of whether such condition is set forth in the Property Documents, the Purchaser's Reports or any
other report, document or information discovered during the course of the Purchaser's due
38997-2004 29477789.5
diligence or otherwise. The foregoing release and covenant not to sue shall apply to all claims at
law or in equity, including, but not limited to, claims or causes of action for personal injury or
death, property damage, statutory claims under Environmental Laws and claims for contribution.
4. This Indemnity shall not merge but shall survive the Date of Closing and shall be continuing
obligation of the Purchaser.
5. Unless otherwise defined herein, all capitalized terms used herein have the meaning ascribed to
them in the Purchase Agreement.
6. The provisions of this Purchaser's Environmental Indemnity and Covenant Not to Sue shall enure
to the benefit of the Vendor and its successors and assigns and shall be binding upon the
Purchaser and its successors and permitted assigns.
DATED as of the day of «Month», «Year».
«PURCHASER(S) NAME»
Per:
Per:
Name: «Individual Signing Documents for
Corporation»
Title: «Title»
Name: «Individual Signing Documents for
Corporation, if there is a second person»
Title: «Title»
I/We have the authority to bind the Corporation.
38997-2004 29477789.5
Attachment No. 5 to Report CAO 02-20
Execution Version
THE CORPORATION OF THE CITY OF PICKERING
as "Vendor"
and
10466921 CANADA INC.
as "Purchaser"
AGREEMENT OF PURCHASE AND SALE
Employment Land — 2019 (Part of Parcel 3)
38997-2005 28875220.8
TABLE OF CONTENTS
SECTION 1 DEFINITIONS 1
SECTION 2 AGREEMENT OF PURCHASE AND SALE 7
SECTION 3 DEPOSIT / PAYMENT OF PURCHASE PRICE 7
SECTION 4 HARMONIZED SALES TAX 9
SECTION 5 "AS IS WHERE IS", PURCHASER'S INSPECTION PERIOD, AND
ENVIRONMENTAL INDEMNITY 9
SECTION 6 CLOSING CONDITIONS 13
SECTION 7 INTENTIONALLY DELETED 15
SECTION 8 CLASS EA REQUIREMENTS / ABORIGINAL CLAIMS 15
SECTION 9 RISK 15
SECTION 10 VENDOR'S WARRANTIES, REPRESENTATIONS AND COVENANTS 16
SECTION 11 PURCHASER'S WARRANTIES, REPRESENTATIONS AND COVENANTS 16
SECTION 12 INTENTIONALLY DELETED 17
SECTION 13 REFERENCE PLAN(S) 17
SECTION 14 TITLE 17
SECTION 15 NO ASSIGNMENT ETC. 18
SECTION 16 DEVELOPMENT AGREEMENTS 18
SECTION 17 PREPARATION OF TRANSFER/DEED DOCUMENTS AND FEES/COSTS 20
SECTION 18 TENDER 20
SECTION 19 ADJUSTMENTS 21
SECTION 20 ELECTRONIC REGISTRATION 21
SECTION 21 CLOSING DELIVERABLES 22
SECTION 22 NOTICE 23
SECTION 23 CONFIDENTIALITY 24
SECTION 24 GENERAL 25
SECTION 25 IRREVOCABLE PERIOD 26
38997-2005 28875220.8
AGREEMENT OF PURCHASE AND SALE
BETWEEN:
THE CORPORATION OF THE CITY OF PICKERING
(hereinafter called the "Vendor")
- and -
10466921 CANADA INC.
(hereinafter called the "Purchaser")
RECITALS:
OF THE FIRST PART
OF THE SECOND PART
A. The Vendor has entered into an agreement of purchase and sale (the "HMQ Purchase
Agreement") with Her Majesty The Queen in Right of Ontario, as represented by The Minister of
Government and Consumer Services ("HMQ") for the purpose of acquiring the fee simple interest
in the property defined as the "Lands" in Section 1.01(pp) of this Agreement in order to
immediately thereafter, sell such fee simple interest in the Lands to the Purchaser.
B. HMQ is the owner in fee simple of the Lands as of the date hereof.
C. The Lands are subject to the Development Agreements, and the Purchaser has agreed to assume
the Development Agreements as they relate to the Lands.
D. The Lands are subject to the Lease(s), and the Purchaser has agreed to assume the Lease(s) as they
relate to the Lands.
E. The Purchaser has offered to purchase the Property from the Vendor on the terms and conditions
hereinafter set forth.
NOW THEREFORE in consideration of the mutual covenants hereinafter set forth and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1
DEFINITIONS
1.01 Definitions
Unless the context expressly or by necessary implication indicates a contrary meaning, the terms
defined in this Section 1.01 for all purposes of this Agreement, shall have the meanings set out below:
38997-2005 28875220.8
-2-
(a) "Adjustments" means the adjustments to the Purchase Price provided for and determined
pursuant to this Agreement.
(b) "Affiliate" has the meaning set out in the Business Corporations Act, R.S.O. 1990, c. B.
16.
(c) "Agreement" means collectively, this agreement of purchase and sale, all
Schedules attached hereto and every properly executed instrument which by its terms
amends, modifies or supplements this Agreement.
(d) "Applicable Laws" means, collectively, all statutes, laws, by-laws, regulations, ordinances
and orders of any governmental Authority, including without limitation all Land Use
Regulations.
(e) "As Is Where Is" has the meaning ascribed to it in Section 5.01.
(f) "Assignee" has the meaning ascribed to it in Section 15.02.
(g) "Assignment and Assumption Agreement" means an agreement by which the Vendor
shall assign and the Purchaser shall become a party to a Development Agreement, Lease,
Permitted Encumbrance or the Participation Agreement and whereby the Purchaser
assumes the responsibility of the Vendor with regard to the Property pursuant to such
Development Agreement, Lease, Permitted Encumbrance or the Participation Agreement.
(h) "Attribution Development Charges" means the Regional Attribution Water Supply DC
and the Regional Attribution Sanitary Sewerage DC (as such terms are defined in the Phase
1 RFEA) from time to time.
(i) "Attribution Prepayment" means the sum of the "Regional Attribution Water Supply DC
Prepayment" and the "Regional Attribution Sanitary Sewerage DC Prepayment" (as such
terms are defined in the Phase 1 RFEA) from time to time.
(j) "Authority" means any governmental or quasi -governmental authority, regulatory
authority, government department, agency, commission, board, tribunal, body or
department, or any court, whether federal, provincial or municipal, having jurisdiction over
the Property, or the use thereof, and includes the City and the Region.
(k) "Buildings" means, individually or collectively, as the context requires, all buildings,
structures and fixed improvements located on, upon or under the Lands, and all
improvements and fixtures of the Vendor contained in, upon or on such buildings and
structures which are used in the operation of same, and "Building" means any one of the
Buildings.
"Business Day" means any day on which the Government of Ontario normally conducts
business.
"City" means the City of Pickering.
"Class EA" means the Class Environmental Assessment Process for the Ministry of
Infrastructure as it applies to OILC realty activities (being as at the Execution Date,
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the "Ministry of Infrastructure Public Work Class Environmental Assessment (Office
Consolidation)", as approved April 28, 2004 and amended on September 11, 2008 and on
October 31, 2012), as approved, amended, or renewed from time to time by the Minister
of the Environment and Climate Change pursuant to Section 14 of the Environmental
Assessment Act, R.S.O. 1990, c. E.18.
"Class EA Requirements" has the meaning ascribed to it in Section 8.01.
"Closing" means the closing of the Transaction, including without limitation, the payment
of the Purchase Price and the delivery of the closing documents in accordance with the
provisions of this Agreement.
"Closing Date" means the later of (i) the day on which the Vendor acquires the Property
from HMQ pursuant to the closing of the HMQ Purchase Agreement; and (ii) the date
which is fourteen (14) days following the deposit of the Reference Plan with the Land
Registry Office, or such other date as the Parties may otherwise mutually agree, acting
reasonably.
(r) "Community Use Land" has the meaning ascribed to it in the Seaton CSA.
(s) "Contaminant" has, for the purposes of this Agreement, the same meaning as that
contained in the Environmental Protection Act, R.S.O. 1990, c. E.19, as amended, and shall
include the requirements of any and all guidelines and/or policies issued by the Ontario
Ministry of the Environment and Climate Change and/or the Ministry of Labour.
(t) "Cost Shared Service" has the meaning ascribed to it in the Seaton CSA.
(u) "DC Credit Recovery Payment" has the meaning ascribed to it in Section 16.03.
(v) "Deposit" has the meaning ascribed to it in Section 3.01.
(w) "Developable Area Share" has the meaning ascribed to it in the Seaton CSA.
(x) "Development Agreements" means, collectively, the Phase 1 RFEA, the Seaton CSA, the
Pickering FIA, the Seaton -Durham CSA and the Master Parks Agreement, and
"Development Agreement" means any one of such agreements.
(y)
"Development Agreement Payment" means any payment required to be made, or security
to be provided, to an Authority, to the Vendor, or to a trustee named under a Development
Agreement, by the Purchaser at Closing hereunder and whether required by an Assignment
and Assumption Agreement or otherwise, and includes, but is not limited to, the DC Credit
Recovery Payment, Attribution Prepayment, Development Agreement Security,
Development Charge Payments, and Private Land Landowner Equivalency Payment.
(z) "Development Agreement Security" means any security required to be delivered by a
Private Landowner pursuant to a Development Agreement, whether by letter of credit or
otherwise.
(aa) "Development Charge Credits" means the development charge credits earned pursuant
to the Phase 1 RFEA.
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(bb) "Development Charge Prepayments" means the prepayments on account of the Regional
Attributions Development Charges required to be paid to the Region pursuant to the Phase
1 RFEA upon the development of Employment Lands.
(cc) "Drainage Area Share" has the meaning ascribed to such term in the Seaton CSA.
(dd) "Durham Owners" has the meaning ascribed to it in the Seaton -Durham CSA.
(ee) "Employment Lands" means those lands designated as "Prestige Employment Lands" in
the `Central Pickering Development Plan'.
(ff) "Environmental Law" means, collectively, all Applicable Laws and agreements with
governmental Authorities and all other applicable federal and provincial statutes,
municipal and local laws, common law and deed restrictions, all by-laws, regulations,
codes, licences, permits, orders, directives, guidelines, decisions rendered by any
governmental Authority relating to the protection of the environment, natural resources,
public health, occupational health and safety or the manufacture, processing, distribution,
use, treatment, storage, disposal, packaging, transport, handling, containment, clean-up or
other remediation or corrective action of any Hazardous Substance, and all authorizations
issued pursuant to such Applicable Laws, agreements or statutory requirements.
(gg) "Environmental Objection" has the meaning ascribed to it in Section 5.02.
(hh) "Environmental Reports" means the reports relating to the environmental condition of
the Lands as identified in Schedule C.
(ii) "Execution Date" means the date on which this Agreement has been executed and
delivered by all parties hereto.
(jj) "Hazardous Substance" includes, but is not limited to any hazardous or toxic chemical,
waste, by-product, pollutant, contaminant, compound, product or substance, including
without limitation, any Contaminant, asbestos, polychlorinated biphenyls, petroleum and
its derivatives, by-products or other hydrocarbons and any other liquid, solid or gaseous
material the exposure to, or manufacture, possession, presence, use, generation, storage,
transportation, treatment, release, disposal, abatement, cleanup, removal, remediation or
handling of, which is prohibited, controlled or regulated by any and is defined in or
pursuant to any Environmental Law.
(kk) "HMQ" has the meaning ascribed to it in the recitals of this Agreement.
(11) "HMQ Acquisition Costs" has the meaning ascribed to it in Section 17.02.
(mm) "HMQ Purchase Agreement" has the meaning ascribed to it in the recitals to this
Agreement.
(nn) "HST" has the meaning ascribed to it in Section 4.01 of this Agreement.
(oo) "Inspection Period" means that period of time commencing on the Execution Date and
ending at 5:00 p.m. (Toronto time) on April 24, 2020.
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(pp) "Lands" means the lands described and set forth at Schedules "A-1" and "A-2". [NTD —
to be updated upon receipt of Reference Plan]
(qq) "Land Use Regulations" means collectively, any land use policies, regulations, by-laws,
or plans of any Authority that apply to the use of the Property, including the existing
Official Plans, zoning by-laws and zoning orders.
(rr) "Land Transfer Tax Affidavit" has the meaning ascribed to it in Section 17.01.
(ss) "Lease(s)" means all leases or licences of any portion of the Lands in force at Closing.
(tt) "Master Parks Agreement" means the Master Parks Agreement dated May 1, 2017
entered into by the City, and the owners of other development land in the Seaton
Community for the purpose of establishing arrangements pertaining to the satisfaction of
the park dedication requirements for the Seaton Community
(uu) "Municipality" means the municipality (or municipalities) where the Property is located.
(vv) "Offer Date" means the date the offer herein is submitted to the Vendor by the Purchaser.
(ww) "OILC" means Ontario Infrastructure and Lands Corporation.
(xx) "Open Data" means data that is required to be released to the public pursuant to the Open
Data Directive.
(yy) "Open Data Directive" means the Management Board of Cabinet's Open Data Directive,
updated on April 29, 2016, as same may be amended from time to time.
(zz) "Participation Agreement" means the participation agreement to be entered into between
the Vendor and HMQ at Closing, which participation agreement shall be substantively in
the form attached to the HMQ Purchase Agreement as Schedule G.
(aaa) "Permitted Encumbrances" means, collectively, the encumbrances listed in Schedule B
and any encumbrances created under the terms of this Agreement.
(bbb) "Phase 1 RFEA" has the meaning ascribed to such term in the Seaton CSA.
(ccc) "Phase 1 RFEA Lands" has the meaning ascribed to such term in the Phase 1 RFEA.
(ddd) "Pickering FIA" means the Financial Impacts Agreement dated November 26, 2015
entered into by the City, and the owners of other development land in the Seaton
Community for the purpose of confirming arrangements pertaining to the financing and
construction of certain infrastructure and other related matters affecting the development
of lands in Seaton.
(eee) "Private Landowner" has the meaning ascribed to such term in the Seaton CSA.
(fff) "Private Landowner Equivalency Payment" has the meaning ascribed to it in
Section 16.06.
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(ggg) "Property" means, collectively, all of the right, title and interest of the Vendor in and to
the Lands and the Buildings.
(hhh) "Property Documents" means the documents in OILC's current possession and related to
the Property, as set out in Schedule C, and shall include, but shall not be limited to:
(A) executed copies of any assignable service contracts, operating agreements
and management agreements;
(B) copies of assignable guarantees and warranties of materials, workmanship,
labour and materials relating to the Property that are still in effect;
(C) copies of the Environmental Reports, heritage reports, archaeological
reports or any other report relating to the physical, geotechnical or
environmental condition of the Property;
(D) copies of all Lease(s);
(E) copies of all Permitted Encumbrances which are not registered against title
to the Property; and
(F) any plan of survey of the boundaries of the Property.
(iii) "Provincial Successor" has the meaning ascribed to such term in the Seaton CSA.
(jj)
"Purchase Price" means the total amount determined by Section 2.02 that shall be paid by
the Purchaser to the Vendor for the Property, exclusive of HST and subject to the
Adjustments.
(kkk) "Purchaser's Reports" has the meaning ascribed to it in Section 5.06.
(111) "Reference Plan" has the meaning ascribed to it in Section 13.01.
(mmm) "Region" means the Regional Municipality of Durham.
(nnn) "Regional Infrastructure" has the meaning ascribed to it in the Seaton CSA.
(000) "ROFR Agreement" means the ROFR Agreement attached hereto as Schedule G to be
entered into between the Vendor and the Purchaser on Closing.
"Seaton Community" means the developable land as determined by the Central Pickering
Development Plan, as may be further refined, and as determined by the Seaton CSA.
(ppp)
(qqq)
"Seaton CSA" means the Amended and Restated Cost Sharing Agreement dated
November 26, 2015 between the Vendor and other owners of development land in the
Seaton Community to provide for the sharing of the costs of development in the Seaton
Community
"Seaton -Durham CSA" means an agreement dated November 26, 2015 between the
Vendor, the Private Landowners and the Durham Owners to provide for the recovery of
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certain costs of construction of Regional Infrastructure to be incurred by the Vendor and
the Private Landowners pursuant to the Phase 1 RFEA from the Durham Owners.
(sss) "Seaton Trustee" means the trustee as provided for in the Seaton CSA, as it is from time
to time. As of the Execution Date, the Seaton Trustee is North Pickering Community
Management Inc.
(ttt) "Servicing Costs" has the meaning ascribed to it in Section 16.07.
(uuu) "Subsequent Phase" means development of land in the Seaton Community, the
development of which is not covered by the Phase 1 RFEA, and for which no allocation of
sewer or water capacity has currently be granted by any Authority.
(vvv) "Transaction" means, collectively, the purchase and sale of the Property provided for in
this Agreement and all other matters contemplated in this Agreement.
SECTION 2
AGREEMENT OF PURCHASE AND SALE
2.01 Subject to the closing of the HMQ Purchase Agreement and the transfer of fee simple interest in
the Lands to the Vendor pursuant thereto, the Vendor agrees to sell, transfer and assign to the
Purchaser all of the right, title and interest of the Vendor in the Property and the Purchaser agrees
to purchase, acquire and assume the Property from the Vendor for the Purchase Price which shall
be paid by the Purchaser to the Vendor for the Property, exclusive of HST and subject to the
Adjustments on the Closing Date.
2.02 The Purchase Price shall be calculated by multiplying the area of the Lands in acres by a per acre
price of:
(a) ONE HUNDRED AND FIFTY-EIGHT THOUSAND DOLLARS ($158,000.00) per
acre.
It is estimated that the area of the Table Lands is approximately 1.12 acres more or less, which
would result in a Purchase Price of ONE HUNDRED AND SEVENTY-SIX THOUSAND NINE
HUNDRED AND SIXTY DOLLARS ($176,960.00). Prior to Closing the area of the Lands shall
be conclusively determined by the reference plan to be prepared in accordance with Section 13.01.
2.03 The Purchaser shall NOT be entitled to direct title of the Property to any other person or entity at
Closing.
SECTION 3
DEPOSIT / PAYMENT OF PURCHASE PRICE
3.01 The Purchaser will pay to Vendor's solicitor in trust, by wire transfer:
(a) Within two (2) Business Days of the Execution Date, the amount of $88,480.00, being
equal to fifty percent (50%) of the estimated Purchase Price, as estimated at Section 2.02
hereof, as a deposit to be credited towards the Purchase Price on the Closing Date; and
38997-2005 28875220.8
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(b) Within two (2) Business Days of the waiver of the Purchaser's conditions in Section 5 and
Section 6.04, a further amount of $88,480.00, being equal to fifty percent (50%) of the
estimated Purchase Price, as estimated at Section 2.02 hereof, as a further deposit to be
credited towards the Purchase Price on the Closing Date,
collectively, the "Deposit".
3.02 The parties authorize the Vendor to invest the Deposit with a Canadian bank as identified in
Schedule I of the Bank Act, R.S., 1991, c. B.46 (Canada) in a term or certificate of deposit (such
investment to be available to the Vendor through its trust account bank and which investment
allows liquidation of the investment as necessary for the anticipated Closing Date or earlier
termination of this Agreement as herein provided) if the Vendor determines, acting reasonably, that
anticipated interest to be earned will justify any related expenses, considering the rate of interest to
be earned and the anticipated time the Deposit will be held before Closing. Any and all interest
earned thereon shall accrue to the benefit of and, subject to Sections 3.03 and 5.03, be paid to the
Purchaser forthwith following the Closing Date or earlier termination of this Agreement.
3.03 In the event that this Agreement is terminated due to a specific default by the Purchaser, then the
Deposit, together with all interest accrued thereon, shall be forfeited to the Vendor as liquidated
damages and not as a penalty.
3.04 If the Transaction is completed, the Deposit shall be credited against the Purchase Price due on
Closing and all interest accrued thereon shall be paid to the Purchaser or as it may direct forthwith
following Closing.
3.05 On Closing the Purchase Price shall be paid and satisfied as follows:
(a) by release of the Deposit to the Vendor; and
(b) the balance of the Purchase Price, as adjusted pursuant to this Agreement shall be paid on
the Closing Date by the Purchaser to, at the election of the Vendor, either (i) the Vendor in
trust, or (ii) HMQ by way of a written direction from the Vendor, which direction shall be
provided not less than two (2) Business Days prior to Closing. The balance of the Purchase
Price shall be payable by way of wire transfer, such payment being deemed to have been
made when the recipient's financial institution confirms receipt of such wire transfer.
3.06 In addition to the Purchase Price, at Closing the Purchaser shall pay, or cause to be paid, all
Development Agreement Payments to the Vendor, to the applicable Authority, or to the applicable
trustee under a Development Agreement, as applicable.
3.07 The Purchaser acknowledges that at Closing it will be required to provide, or cause to be provided,
Development Agreement Security to the appropriate Authority pursuant to one or more of the
Development Agreements.
3.08 The Transaction shall be completed on the Closing Date at the offices of the Vendor's solicitors.
38997-2005 28875220.8
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SECTION 4
HARMONIZED SALES TAX
4.01 The Purchase Price does not include the Harmonized Sales Tax ("HST") payable by the Purchaser
in respect of the purchase of the Property pursuant to the Excise Tax Act, R.S.C. 1985, c. E.15
(Canada) (the "Act"). Subject to Section 4.02, the Purchaser agrees to pay to the Vendor, on the
Closing Date, as a condition of completion of this Transaction by wire transfer, certified cheque or
bank draft, all HST payable as a result of this Transaction in accordance with the Act.
4.02 Notwithstanding Section 4.01 above, the Vendor shall not collect HST from the Purchaser in this
Transaction if, on Closing, the Purchaser is registered under the Act and in that event, the Purchaser
shall:
(a) file returns and remit such HST to the Receiver General for Canada when and to the extent
required by the Act; and
(b) provide to the Vendor, on the Closing Date, a certificate confirming that the Purchaser is
registered under the Act for the purposes of collecting and remitting HST, and confirming
its HST registration number under the Act, together with an indemnity in favour of the
Vendor for any and all HST, fines, penalties, actions, costs, losses, claims, damages or
expenses and/or interest which may become payable by, or assessed against, the Vendor as
a result of the Vendor's failure to collect HST from the Purchaser on the Closing Date,
such certificate and indemnity to be in a form satisfactory to the Vendor's solicitor, acting
reasonably,
failing which the Purchaser shall pay to the Vendor on Closing the HST payable by the Purchaser
with respect to this Transaction and the Vendor shall remit such HST to the appropriate Authority
in accordance with the Act.
4.03 The Purchaser's obligations under this Section 4 shall survive and not merge on Closing.
SECTION 5
"AS IS WHERE IS",
PURCHASER'S INSPECTION PERIOD, AND ENVIRONMENTAL INDEMNITY
5.01 The Purchaser acknowledges and agrees that:
(a) in entering into this Agreement, the Purchaser has relied and will continue to rely entirely
and solely upon its own inspections and investigations with respect to the Property,
including, without limitation, the physical and environmental condition of the Property and
a review of any documentation respecting the Property, and the Purchaser acknowledges it
is not relying on any information furnished by the Vendor or any other person on behalf
of, or at the direction of, the Vendor in connection therewith;
(b) the Purchaser is purchasing and shall accept, assume and take title to the Property and any
improvements thereon in an "As Is, Where Is" condition. The term "As Is, Where Is"
means in its condition or state on the Offer Date, without any agreement, representation or
warranty of any kind whatsoever, either express or implied on the part of the Vendor, as to
the condition of the soil, the subsoil, the ground and surface water or any other
environmental matters, the condition of the Lands, suitability for development, physical
38997-2005 28875220.8
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characteristics, profitability, the condition of the Buildings, or any other matter respecting
the Property whatsoever, including without limitation, compliance with Environmental
Law, the existence of any Hazardous Substance or Contaminant, the use to which the
Property may be put and its zoning, the development potential of the Property or the ability
of the Purchaser to obtain approvals with respect to the Purchaser's intended development
of the Property, or as to the accuracy, currency or completeness of any information or
documentation supplied to the Purchaser in connection with the Property; and
(c) the Vendor shall have no obligations or responsibility to the Purchaser after Closing with
respect to any matter relating to the Property or the condition thereof. The provisions of
this Section 5.01 shall survive and not merge on Closing.
Without limiting the foregoing, the Purchaser accepts, assumes and takes title to the Property
subject to the land uses currently permitted on the Property by the applicable Land Use Regulations
and the Purchaser shall not make and is not authorized by the Vendor to make, prior to completion
of this Transaction, any applications to the Municipality or any governmental Authority for changes
or variances to the uses currently permitted on the Property, including without limitation changes
or variances to official plans and/or zoning by-laws applicable to the Property.
5.02 During the period of time commencing on the Execution Date and expiring on the expiration of the
Inspection Period, the Purchaser may carry out whatever investigations it considers necessary to
satisfy itself with respect to the condition of the soil, the subsoil, the ground and surface water or
any other environmental matter relating to the Property, including, without limitation, compliance
with Environmental Law, the existence of any Hazardous Substance or Contaminant.
If as a result of such investigations the Purchaser has or acquires evidence within the Inspection
Period that there exists a condition of non-compliance with Environmental Law or the presence of
a Hazardous Substance or Contaminant on, in, at, under, emanating from or onto the Property that
would be in excess of the guidelines for any of the permitted uses under the current zoning by-law
affecting the Property, the risk or presence of which the Purchaser is not prepared to assume, then
the Purchaser shall, by written notice, provide such evidence to the Vendor within the Inspection
Period by way of a report of a recognized and qualified environmental consultant who shall specify
in detail the nature of the non-compliance, Hazardous Substance or Contaminant and quantify the
remediation cost (collectively, an "Environmental Objection"). Upon receipt of an
Environmental Objection, the Vendor may, at its option and in its sole discretion:
(a) undertake, as the Purchaser's sole and exclusive remedy, to take such actions,
complete such work and/or implement such measures, in the Vendor's sole
discretion as to means and methods, as may be necessary to correct the matter of
non-compliance prior to the Closing Date or as soon as reasonably possible after
the Closing Date if compliance prior to Closing is not, in the Vendor's opinion,
reasonably possible;
(b) credit the Purchaser, as the Purchaser's sole and exclusive remedy, the quantified
cost of correcting the matter of non-compliance as an adjustment to the Purchase
Price, in which event the Purchaser shall, on Closing, expressly assume the
obligation and undertake to correct the matter of non-compliance as soon as
possible after the Closing Date and shall indemnify and save harmless the Vendor
from and against any and all claims, demands, costs, damages, expenses and
38997-2005 28875220.8
liabilities whatsoever arising from the Purchaser's failure to remediate the
Hazardous Substance, Contaminant and/or matter of non-compliance;
(c) terminate this Agreement in which event the Deposit shall, subject to Section 5.03,
be returned to the Purchaser with accrued interest, and without further liability to
the Vendor; or
(d) refuse to do either (a), (b), or (c) above in which event the Purchaser shall have the
option of either: (i) completing the Transaction without adjustment to the Purchase
Price; or (ii) terminating this Agreement in which event the Deposit shall, subject
to Section 5.03, be returned to the Purchaser with accrued interest, and without
further liability to the Vendor.
The Vendor shall have fifteen (15) Business Days from receipt of the Environmental Objection to
make its election under (a), (b), (c) or (d) above by notice in writing to the Purchaser and in the
event the Vendor fails to make an election within said fifteen (15) Business Day period, the Vendor
will be deemed to have elected option (d) above. The Purchaser shall have five (5) days from the
date of the Vendor's election or deemed election under (d) above to elect, by notice in writing to
the Vendor, to terminate or complete as per paragraph (d) above and in the event the Purchaser fails
to make an election within said five (5) day period the Purchaser shall be deemed to have elected
to complete the Transaction without adjustment to the Purchase Price.
5.03 During the Inspection Period, the Vendor will permit the Purchaser together with its employees,
agents or consultants access to the Property, at reasonable times and upon a minimum of five
(5) Business Days' prior written notice to the Vendor, to carry out, at the Purchaser's sole expense
and risk, such investigations, tests and inspections as the Purchaser deems necessary, provided that
the Purchaser takes all reasonable care in the conduct of such investigations, tests and inspections.
All tests, investigations and inspections conducted by the Purchaser or its representatives shall be
commenced and completed prior to the expiration of the Inspection Period and shall be carried out
as expeditiously as possible and at times and in such manner so as to not interfere with any tenants,
occupants or licensees on the Property or the operation and maintenance of the Property. The
Purchaser covenants and agrees to promptly repair or pay the cost of repair of any damage
occasioned during or resulting from such investigations, tests and inspections of the Property
conducted by the Purchaser or its representatives and to return the Property to substantially the
same condition it was in prior to such investigations, tests and inspections. The Vendor assumes no
responsibility for and the Purchaser shall indemnify and save harmless the Vendor from and against
any and all claims, demands, costs, damages, expenses and liabilities whatsoever arising from the
Purchaser's and/or its agents' or consultants' presence on the Property or the Purchaser's and/or its
agents' or consultants' activities on or in connection with the Property. The Vendor shall be entitled
to deduct from the Deposit paid by the Purchaser hereunder the amount of any losses, costs, claims,
third party actions, damages and expenses which the Vendor may suffer as a result of a breach of
this Section 5.03. The obligations in this Section 5.03 shall survive termination of this Agreement
for a period of two (2) years and shall not merge on Closing.
5.04 Intentionally Deleted.
5.05 The Vendor agrees to provide to the Purchaser, the Property Documents listed in Schedule C and
the Development Agreements within three (3) days of the date of receipt by the Vendor of same
from the HMQ. The Purchaser acknowledges and agrees that: (i) the Property Documents are being
provided to the Purchaser for informational purposes only and the Vendor makes no representations
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or warranties whatsoever with respect to the content, completeness or accuracy of the Property
Documents, or the environmental or any other condition of the Property; (ii) the Vendor shall not
be liable to the Purchaser, its agents, employees or lending institution in any way for any error,
omission or inaccuracy contained in any Property Document; (iii) as of the Closing Date, the
Purchaser shall become solely liable for all conditions and Hazardous Substances and/or
Contaminants existing at the Property, whether known or unknown by the Purchaser, and whether
or not such conditions or Hazardous Substances and/or Contaminants are disclosed in the Property
Documents or have been discovered by Purchaser in the course of its due diligence or other
investigations or inspections of the Property; and (iv) the Purchaser has received a copy of the draft
Participation Agreement which will be registered on title prior to Closing and, for greater certainty,
shall be a Permitted Encumbrance.
5.06 The Purchaser covenants and agrees that the Property Documents provided by the Vendor and any
and all third party reports, findings, recommendations, opinions and information resulting from the
Purchaser's due diligence ("Purchaser's Reports") and the information contained therein shall be
held in accordance with the confidentiality provisions set out in section 23. If this Agreement is
terminated for any reason, the Purchaser will promptly return to the Vendor all Purchaser's Reports
and Property Documents without keeping copies. The Purchaser shall deliver to the Vendor
forthwith following receipt, copies of any and all Purchaser's Reports the Purchaser commissions
or obtains during the course of its investigations.
5.07 In the absence of the Purchaser delivering: (i) an Environmental Objection; and (ii) a notice to
terminate the Agreement under Section 5.02(d), the Purchaser shall be conclusively deemed to
accept the Property in its As Is, Where Is condition, having waived all requisitions concerning any
matters relating to the Property, and the Purchaser shall accept full responsibility for all conditions
related to the Property, and the Purchaser shall comply, at its sole cost, with all orders relating to
the condition of the Property issued by any competent government Authority, court or
administrative tribunal, including any order issued against the Vendor including without limitation,
any non-compliance with Environmental Law or relating to the existence of any Hazardous
Substance or Contaminant.
5.08 As an inducement to, and as further consideration for, the Vendor agreeing to sell the Property to
the Purchaser upon the terms and conditions set forth in this Agreement, the Purchaser covenants
and agrees that, effective as of the Closing Date, the Purchaser shall forever release and covenant
not to sue the Vendor and its affiliates, subsidiaries, related legal entities, employees, directors,
officers, appointees and agents (each individually, a "Vendor Party" and collectively,
the "Vendor Parties") with respect to anything arising out of the environmental or any other
condition of the Property as of the Closing Date or the presence of Hazardous Substances or
Contaminants in, on, under, or emanating from or onto the Property as of the Closing Date,
regardless of whether such environmental conditions or the presence of Hazardous Substances or
Contaminants is known or unknown by the Purchaser and regardless of whether such condition is
set forth in the Property Documents, the Purchaser's Reports or any other report, document or
information discovered during the course of the Purchaser's due diligence or otherwise. The
foregoing release and covenant not to sue shall apply to all claims at law or in equity, including,
but not limited to, claims or causes of action for personal injury or death, property damage, statutory
claims under Environmental Laws and claims for contribution.
5.09 From and after the Closing Date, the Purchaser shall be responsible for, and hereby agrees to
indemnify, defend and save harmless the Vendor Parties from, any and all costs (including legal,
consultant and witness costs and fees), claims, demands, actions, prosecutions, administrative
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hearings, fines, losses, damages, penalties, judgments, awards (including awards of costs) and
liabilities (including sums paid in settlement of claims), that may arise as a result of the condition
of the Property, the presence of Hazardous Substances or Contaminants in, on or under the Lands,
the Buildings or any structure or paved surface, or in any environmental medium (including, but
not limited to, the soil, groundwater, or soil vapour on or under, or emanating from the Property),
any order issued by any Authority in connection with the condition of the Property, or any loss,
damage, or injury caused either directly or indirectly as a result of the condition of the Property
including, without limitation, non-compliance with Environmental Law or the existence of any
Hazardous Substance or Contaminant. Without limiting the generality of the foregoing, this
indemnification shall specifically cover costs incurred, from and after the Closing Date, in
connection with any claim for personal injury and/or death, property damage, investigation of site
conditions and/or any clean-up, remedial, removal, monitoring or restoration work required by any
federal, provincial, or local government agency or political subdivision because of the presence of
Hazardous Substances, in, on or under the Lands, the Buildings or any environmental medium,
structure or paved surface or emanating therefrom.
5.10 The parties agree to execute and exchange at the time of Closing such further documentation as
either party reasonably requests, including, but not limited to, an agreement whereby the Purchaser
shall reaffirm the release, covenant not to sue and indemnifications regarding the condition of the
Property and environmental matters set forth in this Section 5 in the form attached hereto as
Schedule H. Notwithstanding the foregoing, the release, covenant not to sue and indemnifications
set forth in this Section 5 shall become effective and enforceable automatically upon the
registration of the Transfer/Deed of Land in respect of the Property in favour of the Purchaser, and
Purchaser shall be bound by them, regardless of whether or not Purchaser executes any separate
instrument at the time of Closing.
5.11 Unless otherwise expressly set out herein, this Section 5 shall not merge but shall survive the
Closing Date and shall be a continuing obligation of the Purchaser.
SECTION 6
CLOSING CONDITIONS
6.01 The obligation of the Vendor to complete the Transaction is conditional upon fulfillment of each
of the following conditions on or before the Closing Date or any earlier date or time specified in
this Agreement:
(a) each of HMQ and the Vendor shall have satisfied or waived all of the conditions and
requirements set out in the HMQ Purchase Agreement, as applicable therein and the
Vendor shall have acquired the Property from HMQ;
(b) the reference plan described in Section 13.01, shall have been deposited within the Durham
Land Registry Office;
(c) all of the terms, covenants and conditions of this Agreement to be complied with or
performed by the Purchaser shall have been complied with or performed in all material
respects at the times contemplated in this Agreement;
(d) the representations and warranties of the Purchaser set forth in this Agreement shall be true
and accurate in all material respects as if made as of the Closing;
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(e) the Purchaser shall have executed all documents required to assume the obligations of the
Vendor pursuant to the Development Agreements, including all required Assignment and
Assumption Agreements; and
(f) all documents and deliveries required to be executed and/or delivered by the Purchaser
shall have been executed and delivered to the Vendor in accordance to this Agreement.
6.02 The conditions set forth in Section 6.01 are for the sole benefit of the Vendor and may be waived
in whole or in part by the Vendor, or by its solicitors on its behalf, in the sole and absolute discretion
of the Vendor by written notice to the Purchaser. The conditions are conditions precedent to the
obligation of the Vendor to complete the herein Transaction on the Closing Date.
6.03 If a condition set forth in Section 6.01 is not fulfilled within the applicable time period, if any, and
the Vendor fails to notify the Purchaser or the Purchaser's solicitors that such condition has been
waived or the time period for compliance has been extended within the applicable time period
allowed, if any (save and except for any condition which is to be satisfied on the Closing in
connection with which it is hereby agreed that upon successful completion of the Transaction, such
condition shall be deemed to have been satisfied), at the Vendor's sole option, this Agreement shall
be null and void, notwithstanding any intermediate act or negotiations, and (i) in the event the
Agreement is terminated as a result of the non -fulfilment of the condition set forth in
Section 6.01(a), neither the Vendor nor the Purchaser shall, subject to Section 5.03, be liable to the
other for any loss, costs or damages, and the Deposit shall, subject to Section 5.03, be returned to
the Purchaser with interest and without deduction, and (ii) in the event the Agreement is terminated
as a result of the non -fulfilment of any of the conditions set forth in Section 6.01(b), 6.01(d) or
6.01(e), the Deposit shall be forfeited to the Vendor as liquidated damages and without derogating
from any claims or causes of action the Vendor may have pursuant to this Agreement and at law
against the Purchaser arising from the Purchaser's default therein.
6.04 The obligation of the Purchaser to complete the Transaction is conditional upon fulfillment of the
following conditions on or before the expiration of the Inspection Period, namely the Purchaser
shall have satisfied itself with the physical and environmental condition of the Lands, the zoning
of the Lands, the Participation Agreement, the Development Agreements, the Property Documents
and all of its other due diligence tests, evaluations, inspections and investigations, including, but
not limited to, the condition set out in Section 5.05.
6.05 The condition set forth in Section 6.04 is for the sole benefit of the Purchaser and may be waived
in whole or in part by the Purchaser, or by its solicitors on its behalf, in the sole and absolute
discretion of the Purchaser by written notice to the Vendor. The condition is a condition precedent
to the obligation of the Purchaser to complete the herein Transaction on the Closing Date.
6.06 If the condition set forth in Section 6.04 is not fulfilled within the applicable time period and/or the
Purchaser fails to notify the Vendor or the Vendor's solicitors that such condition has been waived,
this Agreement shall be null and void, and the Deposit shall, subject to Section 5.03, be returned
to the Purchaser with interest and without deduction.
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SECTION 7
INTENTIONALLY DELETED
SECTION 8
CLASS EA REQUIREMENTS / ABORIGINAL CLAIMS
8.01 The Purchaser hereby acknowledges that the obligation of the Vendor to complete the Transaction
is conditional upon fulfillment of the following condition by the HMQ on or before the Closing
Date:
(a) HMQ shall have completed the Class EA Requirements (as such term is defined in the
HMQ Purchase Agreement).
8.02 Notwithstanding any other provision of this Agreement, the Purchaser further acknowledges that
the completion of the Transaction is subject to continuing compliance to the Closing Date with all
Class EA Requirements. In the event that prior to the Closing Date, the Vendor notifies the
Purchaser that:
(a) it has received notice from the HMQ exercising its option under the HMQ Purchase
Agreement to extend the closing date thereunder in accordance with the terms and
conditions therein, the Closing Date shall be automatically extended for such period of
time; or
(b) HMQ has elected to terminate the HMQ Purchase Agreement in accordance with the terms
and conditions therein, this Agreement shall be deemed terminated and the Deposit plus
any interest shall be returned to the Purchaser and neither party shall be further liable to
the other pursuant to this Agreement other than the Purchaser's obligations pursuant to
Section 5.03 of this Agreement.
SECTION 9
RISK
9.01 Until completion of this Agreement on the Closing Date, the Property shall be and remain at the
risk of the Vendor, except as otherwise provided in Section 5. The Purchaser acknowledges that
the Vendor, in respect of damage to the Property, is self-insured. In the event of damage to the
Property on or before the Closing Date (other than damage occasioned during or resulting from
the Purchaser's and/or its agents, consultants or representatives entries and/or activities on or to the
Property, in which event Section 5.03 shall govern) (the "Pre -Closing Damage"), the Vendor may
elect (i) to forthwith repair the Property to the same state and condition as it was in at the Offer
Date in which event the Purchaser will complete the Transaction without an abatement in the
Purchase Price; or (ii) to reduce the Purchase Price by an amount equal to the cost required to
complete the repair as estimated by an independent qualified architect or engineer jointly retained
by the Vendor and the Purchaser, acting reasonably and at arm's length in which event the
Purchaser will complete the Transaction and accept a price reduction equal to such cost, or
(iii) unless the Purchaser agrees to accept title to the Property notwithstanding the election of the
Vendor not to remediate or compensate, to terminate this Agreement in which case the Deposit
shall, subject to Section 5.03, be immediately returned to the Purchaser, with interest and without
deduction, and neither party shall, subject to Section 5.03, have any further rights or obligations
hereunder.
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9.02 From and including the Closing Date, the Property shall be entirely at the risk of the Purchaser and
the Purchaser shall accept and assume any and all responsibilities and liabilities arising out of or in
any way connected with the Property whether they arose before, on or after the Closing Date and,
without being limited by the foregoing, any state, nature, quality or condition in, on, under or near
the Property existing as of the Closing Date, whenever and however arising, whether known or
unknown and whether environmental or otherwise, and whether such responsibilities and liabilities
are imposed by law, equity or any governing Authority.
SECTION 10
VENDOR'S WARRANTIES, REPRESENTATIONS AND COVENANTS
10.01 The Vendor represents and warrants to the Purchaser that the Vendor is not a non-resident of
Canada within the meaning and intended purpose of Section 116 of the Income Tax Act, R.S.C.
1985, c.1 (5th Supp.).
10.02 Any information provided by the Vendor or its agents, including the Property Documents, and any
comments made by any Vendor Party are for the assistance of the Purchaser in allowing it to make
its own inquiries. The Vendor makes no representations or warranties as to, and takes no
responsibility for, the accuracy or completeness of the Property Documents or any other
information it has provided to the Purchaser.
SECTION 11
PURCHASER'S WARRANTIES, REPRESENTATIONS AND COVENANTS
11.01 The Purchaser represents and warrants to the Vendor that the Purchaser does not have a conflict of
interest with the Vendor or any Vendor Party.
11.02 The Purchaser represents and warrants to the Vendor that the execution, delivery and performance
by the Purchaser of this Agreement, and each agreement to be executed and delivered pursuant
hereto at Closing, to which the Purchaser is a party are within the Purchaser's legal power and
jurisdiction and, will have been duly authorized and approved by all necessary action on the part
of the Purchaser.
11.03 The Purchaser represents and warrants to the Vendor that this Agreement has been, and, each
agreement to be executed and delivered by the Purchaser pursuant to this Agreement, will be duly
and validly executed and delivered by the Purchaser, and this Agreement constitutes, and each
agreement to be executed and delivered pursuant hereto at Closing, when so executed and delivered
will constitute, the legal, valid and binding obligation of the Purchaser, enforceable against the
Purchaser in accordance with their respective terms.
11.04 The Vendor shall deliver and the Purchaser shall accept possession of the Property on the Closing
Date in an As Is Where Is condition, subject to: (i) the Lease(s); (ii) the Development Agreements;
and (iii) the Permitted Encumbrances.
11.05 As of the Closing Date, the Purchaser shall assume and be responsible as owner for the management
and administration of the Property and the Vendor shall have no further responsibility whatsoever
therefor.
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11.06 Without limiting the generality of the foregoing, the Purchaser shall comply with the terms of the
Permitted Encumbrances, any agreement entered into by the Vendor with any Authority relating to
the Property, all other agreements relating to public utilities and municipal services, the Land Use
Regulations, all relevant municipal by-laws and all registered restrictions. The Purchaser further
agrees and acknowledges that it shall be bound by any contractual obligations which the Vendor
may have entered into concerning the Property prior to the Closing Date.
SECTION 12
INTENTIONALLY DELETED
SECTION 13
REFERENCE PLAN(S)
13.01 The Vendor agrees to prepare and deposit in the Durham Land Registry Office, a reference plan(s)
of survey of the Lands (collectively, the "Reference Plan"). The parties acknowledge that the
Property may not be conveyed until such a time as the Reference Plan has been deposited with the
Durham Land Registry Office. The Purchaser shall pay, as an adjustment on Closing, the cost of
preparing the Reference Plan. The area of the Lands shall be conclusively determined by the
Reference Plan.
SECTION 14
TITLE
14.01 Intentionally Deleted.
14.02 On the Closing Date, the Purchaser shall accept title to the Property in an As Is Where Is condition
subject to the following:
(a) the Land Use Regulations;
(b) the Development Agreements and notices thereof;
(c) the Lease(s);
(d) all Community Use Land obligation pursuant to the Seaton CSA;
(e) the Participation Agreement;
(f) the ROFR Agreement; and
(g) the Permitted Encumbrances.
The Purchaser agrees to satisfy itself with respect to compliance with all such agreements,
easements, restrictions or covenants, encumbrances and regulations referred to herein and agrees
that the Vendor shall not be required to provide any evidence of compliance with same.
14.03 Intentionally Deleted.
14.04 The Vendor hereby consents to the relevant Municipality releasing to the Purchaser any information
in its records in connection with the Property and the Vendor agrees to execute and deliver such
necessary authorizations as the Purchaser may reasonably require in this regard but any such
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authorization shall specifically prohibit the right of or a request for an inspection of the Property
by the Municipality or any other Authority.
SECTION 15
NO ASSIGNMENT ETC.
15.01 The Purchaser shall not assign or register this Agreement, or any assignment of this Agreement, or
any part of either, or register a caution in relation thereto, or direct title to the Property, without, in
each instance, obtaining the prior written consent of the Vendor, which consent may be arbitrarily
and unreasonably withheld.
15.02 If the Vendor consents to an assignment of this Agreement to a third party (the "Assignee"), the
Purchaser shall cause the Assignee and the Purchaser, to covenant in writing in favour of the
Vendor to be jointly and severally bound by and to jointly and severally perform their respective
obligations of this Agreement. The Purchaser shall not be released from its liabilities and
obligations hereunder in the event of an assignment to an Assignee.
15.03 In the event of any assignment of this Agreement to an Assignee, such Assignee shall provide a
similar representation, warranty and Statutory Declaration as required of the Purchaser in
Section 11.01
SECTION 16
DEVELOPMENT AGREEMENTS
16.01 The Purchaser agrees that at Closing it shall, as part of its acquisition of the Property, assume the
obligations of the Vendor regarding the Property pursuant to the Development Agreements, and it
covenants to make all payments required by such Development Agreements and provide any
Development Agreement Security required pursuant to any such Development Agreement, whether
such security is to be lodged with an Authority or otherwise, upon the execution of any applicable
Assignment and Assumption Agreement with the intent that the Purchaser shall be treated equally
with the other Private Landowners, except as explicitly provided in the Development Agreements.
Furthermore, the Purchaser acknowledges and agrees that the assumed liabilities under the
Development Agreements (including, but not limited to, all amounts required to be paid to by the
Purchaser on Closing pursuant to the terms of the Development Agreements) may be material in
nature and the Purchaser acknowledges that is has been provided with sufficient opportunity to
fully assess the nature and quantum of such assumed liabilities.
16.02 The Purchaser acknowledges that the Development Agreements may have been registered against
title to the Property and further acknowledges that the development of the Property is subject to the
Development Agreements. Furthermore and for greater certainty, the Purchaser acknowledges that
from and after Closing it shall be responsible for its share of the costs of all services and/or public
infrastructure relating to the Lands, including, but not limited to, its proportionate share of any front
funded costs which may have been paid by any third parties prior to Closing with respect to such
services and/or public infrastructure.
16.03 The Purchaser acknowledges and agrees that the Vendor has made payments and incurred expenses
which are subject to recovery by the Vendor through the issuance of Development Charge Credits
pursuant to the terms and conditions of the Phase 1 RFEA. The Purchaser agrees that at Closing,
and as a condition of Closing, that it shall reimburse the Vendor for all costs that the Vendor has
incurred which would be recoverable by the Vendor in the form of Development Charge Credits to
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be issued pursuant to the Phase 1 RFEA in respect of the Lands. The Purchaser acknowledges and
agrees that the Seaton Trustee shall determine the amount Development Charge Credits entitlement
earned and attributable to the Lands based on the Developable Area Share of the Lands in the
Seaton Community, whether or not the Lands are within the Phase 1 RFEA Lands, and shall take
into account indexing as provided for in the Phase 1 RFEA. The payment from the Purchaser to
the Vendor pursuant to this section shall be referred to herein as the "DC Credit Recovery
Payment".
16.04 The Purchaser acknowledges that the Pickering FIA creates obligations with regard to the funding
of certain infrastructure in Seaton under the jurisdiction of the City. The Purchaser covenants and
agrees that it will abide by the terms and conditions of the Pickering FIA, and will execute any
Assignment and Assumption Agreement as reasonably required by the Vendor or the City.
Furthermore, the Purchaser acknowledges that the infrastructure projects to be funded pursuant to
the Pickering FIA are Cost Shared Services under the Seaton CSA, and the costs of which are to be
cost shared pursuant to the terms of the Seaton CSA.
16.05 The Purchaser acknowledges that the Lands include Phase 1 RFEA Lands and, therefore, prior to
the issuance of a building permit with respect to the development of such lands, unless otherwise
provided for in a front ending agreement relating to Subsequent Phase development, the Purchaser
will have to pay, in addition to any Attribution Development Charges payable with respect to the
development of the Lands, the Attribution Prepayment applicable to the Property. The Phase 1
RFEA provides that Development Charge Credits earned by virtue of the payment of the
Attribution Prepayment are not able to be utilized to satisfy the Attributions Development Charges
payable upon the issuance of building permits for lands that are Phase 1 RFEA Lands, and further
such Development Charge Credits will be administered by the Seaton Trustee.
16.06 The Purchaser acknowledges that on Closing the Purchaser will be a Provincial Successor (as such
term is defined in the Seaton CSA). Furthermore, by virtue of being a Provincial Successor the
Purchaser acknowledges and agrees that at Closing it will have to make a payment to the Seaton
Trustee in an amount to be determined by the Seaton Trustee pursuant to the terms of the Seaton
CSA, which will bring the Purchaser into a position in which the Purchaser will have funded the
costs of Regional Infrastructure pursuant to the Phase 1 RFEA on the same basis as the other Private
Landowners within the Seaton Community, this payment to be referred to herein as the "Private
Landowner Equivalency Payment".
16.07 The Purchaser acknowledges and agrees that at Closing, it will make a payment to the Vendor in
an amount equal to the portion of the costs incurred by the Vendor for Cost Shared Services
applicable to the Lands up to the Closing Date as confirmed by the Seaton Trustee, unless otherwise
provided for herein, whether on a Developable Area Share or Drainage Area share or otherwise as
applicable (referred to herein as "Servicing Costs").
16.08 The Purchaser acknowledges that the Lands include Community Use Lands and that such
Community Use Lands are to be transferred to an Authority or the Seaton Trustee pursuant to the
terms of the Seaton CSA. The Purchaser acknowledges and agrees that it will abide by the terms
of the Seaton CSA with regard to such Community Use Lands which requires that they be conveyed
to an Authority or the Seaton Trustee, and further that the Assignment and Assumption Agreement
with regard to the Seaton CSA will specifically provide for such transfer of the Community Use
Lands.
38997-2005 28875220.8
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16.09 The Seaton -Durham CSA provides for the recovery of certain costs of the construction of Regional
Infrastructure that relate to the over -sizing of such services for which Development Charge Credits
are not available. The Purchaser acknowledges that the Vendor has not made and is not making
any representations or warranties that any such construction costs will be recovered from the
Durham Owners.
SECTION 17
PREPARATION OF TRANSFER/DEED DOCUMENTS AND FEES/COSTS
17.01 The Transfer/Deed of the Lands will be prepared by the Vendor, except for the Affidavit of
Residence and Value of the Consideration ("Land Transfer Tax Affidavit"), which will be
prepared by the Purchaser.
17.02 The Purchaser shall pay its own legal costs and registration costs. The Purchaser shall be
responsible for the payment of any applicable Land Transfer Tax and registration fees and any other
taxes and fees which may be payable in connection with the registration of the transfer/deed of the
Property. Furthermore, the Purchaser agrees that it shall pay to the Vendor on Closing, the
following amounts:
(a) an amount equal to the amount of Land Transfer Tax, registration fees and any other
taxes and fees payable in connection with the Vendor's purchase of the Lands from HMQ
pursuant to the terms of the HMQ Purchase Agreement, which are not recoverable by the
Vendor from the appropriate taxing authority;
(b) all legal and other third -party expenses incurred or payable by the Vendor in connection
with (i) the Transaction; and (ii) the acquisition of the Lands from HMQ pursuant to the
terms of the HMQ Purchase Agreement, including, but not limited to, any costs
associated with any environmental site investigations performed by or on behalf of the
Vendor with respect to the Lands;
(c) all marketing costs for which the Vendor is responsible or for which the Vendor has been
required to pay in order to acquire the Lands pursuant to the terms of the HMQ Purchase
Agreement,
collectively, the "HMQ Acquisition Costs".
The HMQ Acquisition Costs shall be set out in the Statement of Adjustments.
SECTION 18
TENDER
18.01 Any tender of money or documents pursuant to this Agreement may be made on the Vendor or the
Purchaser or their respective solicitors. Unless expressly set out to the contrary herein, money must
be tendered in Canadian funds by electronic wire. The Vendor and the Purchaser acknowledge and
agree that insofar as the tender of any documents to be electronically registered is concerned, the
tender of same will be deemed to be effective and proper when the solicitor for the party tendering
has completed all steps required by Teraview in order to complete this Transaction that can be
performed or undertaken by the tendering party's solicitor without the cooperation or participation
of the other party's solicitor, and specifically when the tendering party's solicitor has electronically
"signed" the Transfer/Deed of Land and any other closing document, if any, to be electronically
38997-2005 28875220.8
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registered for completeness and granted access to the other party's solicitors to same, but without
the necessity for the tendering party's solicitor actually releasing such documents to the other
party's solicitor for registration.
SECTION 19
ADJUSTMENTS
19.01 Adjustments between the Vendor and the Purchaser shall be made on the Closing Date for taxes,
local improvement rates, utility costs, rents, legal costs, HMQ Acquisition Costs and other matters
or items which are ordinarily the subject of adjustment for the purchase and sale of a property
similar to the Property in the Province of Ontario. Such Adjustments shall be made on the basis
that, except as may be otherwise expressly provided for in this Agreement:
(a) the Vendor shall be responsible for all expenses and liabilities and entitled to all income
from the Property up to the Closing Date; and
(b) the Purchaser shall be responsible for all expenses and liabilities and entitled to all income
from the Property from and including the Closing Date.
19.02 Adjustments that cannot be determined on the Closing Date shall be determined by the parties as
soon after the Closing Date as is reasonably possible. Any amounts payable by one party to the
other, as determined by the parties, acting reasonably, shall be paid within thirty (30) days of the
request for such payment. On the Closing Date, the Vendor and the Purchaser shall exchange
undertakings to re -adjust the foregoing items, if necessary.
19.03 All Adjustments to be made under Section 19.01 shall be completed on or before the date which is
no later than six (6) months from the Closing Date and no re -adjustment may be made by either
party thereafter.
SECTION 20
ELECTRONIC REGISTRATION
20.01 Where the Property is in an area where electronic registration is mandatory and the Transaction
will be completed by electronic registration pursuant to Part III of the Land Registration Reform
Act, R.S.O. 1990, c. L.4, and the Electronic Registration Act, S.O. 1991, c.44, and any amendments
thereto, the Vendor and Purchaser acknowledge and agree that the exchange of closing funds, non -
registrable documents and other closing deliverables provided for herein and the release thereof to
the Vendor and Purchaser will:
(a) not occur at the same time as the registration of the transfer/deed (and any other documents
intended to be registered in connection with the completion of this Transaction); and
(b) be subject to conditions whereby the lawyer(s) receiving any of the closing deliverables
will be required to hold same in escrow and not release same except in accordance with the
terms of a document registration agreement between the said lawyers, the form of which is
as recommended from time to time by the Law Society of Upper Canada (the "Document
Registration Agreement") and attached hereto as Schedule E.
38997-2005 28875220.8
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SECTION 21
CLOSING DELIVERABLES
21.01 Subject to the provisions of this Agreement, the Vendor covenants that it shall execute or cause to
be executed and shall deliver or cause to be delivered to the Purchaser or the Purchaser's solicitors
on or before the Closing Date, each of the following:
(a) possession of the Property in an As Is Where Is condition, subject to the Lease(s), and
subject to the rights of others as set out in the Permitted Encumbrances;
(b) an Assignment and Assumption Agreement for the Lease(s);
(c) an Assignment and Assumption Agreement for each of the Development Agreements;
(d) an Assignment and Assumption Agreement for the Permitted Encumbrances, as applicable;
(e) an Assignment and Assumption Agreement for the Participation Agreement;
(f) notice to the tenant pursuant to the Lease informing it of the sale of the Lands and directing
it to make future rent payments to the Purchaser;
(g)
an executed Transfer/Deed of Land in registrable form duly executed by the Vendor in
favour of the Purchaser (save for any Land Transfer Tax Affidavit);
(h) an undertaking to re -adjust the statement of Adjustments, if necessary, upon written
demand;
(i) a direction regarding the payment of funds;
(j) statement of Adjustments;
(k) Document Registration Agreement as set out in Schedule E;
(1) the ROFR Agreement in the form attached hereto as Schedule G; and
(m) such other deeds, conveyances and other documents as the Purchaser or its solicitors may
reasonably require in order to implement the intent of this Agreement.
21.02 Subject to the provisions of this Agreement, the Purchaser covenants that it shall execute or cause
to be executed and shall deliver or cause to be delivered to the Vendor or the Vendor's Solicitors
on or before the Closing Date:
(a) confirmation of wire transfer for the balance of the Purchase Price and Adjustments due on
the Closing Date;
(b) confirmation of wire transfer for any Development Agreement Payment payable to the
Vendor, including the DC Credit Recovery Payment, the Private Landowner Equivalency
Payment, and Servicing Costs;
(c) a certified cheque, bank draft or confirmation of wire transfer for any Development
Agreement Payment payable to the applicable trustee under a Development Agreement;
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(d) confirmation of delivery of Development Agreement Security to any applicable authority
or trustee under a Development Agreement, if applicable;
(e) an undertaking to re -adjust the statement of Adjustments, if necessary, upon written
demand;
(f) HST Declaration and Indemnity, as contemplated in Section 4, if applicable;
(g) Document Registration Agreement in the form attached as Schedule E;
(h) an Assignment and Assumption Agreement for the Lease(s);
(i) an Assignment and Assumption Agreement for each of the Development Agreements;
(j) an Assumption Agreement for the Permitted Encumbrances, as applicable;
(k) an Assignment and Assumption Agreement for the Participation Agreement;
(1) the ROFR Agreement in the form attached hereto as Schedule G;
(m) the Purchaser's Indemnity and Covenant Not to Sue in the form attached hereto as
Schedule H; and
(n) such other deeds, conveyances, resolutions and other documents as the Vendor or its
solicitors may reasonably require in order to implement the intent of this Agreement.
SECTION 22
NOTICE
22.01 Any notice under this Agreement is sufficiently given if delivered personally or if sent by ordinary
prepaid mail or prepaid courier or electronic facsimile machine (including e-mail) addressed to the
Purchaser at:
10466921 Canada Inc.
101 Pearmain Court
Markham, ON L3S 3S7
Attention:
Telephone:
Email:
and to the Purchaser's Solicitors at:
Abrahams LLP
1457 McCowan Road
Suite 204
Toronto
Ontario, M 1 S 5K7
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Attention: Tariq Mustafa Muinuddin
Telephone: 416-291-6786
Email: tariq@abrahamsllp.com
and to the Vendor at:
The Corporation of the City of Pickering
One The Esplanade
Pickering
Ontario, L 1 V 6K7
Attention: Paul Bigioni, Director, Corporate Services and City Solicitor
Telephone: (905) 420-4660 ext. 2048
Email: pbigioni(2 pickering.ca
and to the Vendor's Solicitors at:
Torys LLP
79 Wellington Street West
Suite 3000
Box 270, TD Centre
Toronto
Ontario, M5K 1N2
Attention: Dan Ford / Andy Gibbons
Telephone: (416) 865-7372 / (416) 865-8226
Email: dford@torys.com / agibbons@torys.com
or at such other addresses as the Vendor and the Purchaser may designate from time to time. Any
such notice shall be conclusively deemed to have been given and received upon the same day if
personally delivered or sent by facsimile or email, or, if mailed, three (3) Business Days after the
same is mailed. Any party may, at any time by notice given in writing to the other party, change
the address for service of notice on it.
SECTION 23
CONFIDENTIALITY
23.01 The Vendor and Purchaser agree to take all necessary precautions to maintain the confidentiality
of the terms and conditions contained herein. The parties acknowledge that this Agreement and any
information or documents that are provided hereunder may be released pursuant to the applicable
provisions of the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, as
amended and the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990,
c. M.56, as amended and Open Data may be released pursuant to the Open Data Directive. This
acknowledgment shall not be construed as a waiver of any right to object to the release of this
Agreement or of any information or documents.
38997-2005 28875220.8
- 25 -
23.02 The Purchaser agrees to ensure that the Purchaser, its officers, employees, agents and sub-
contractors shall, subject to Section 23.01, maintain the confidentiality and security of all materials
and information which is the property of the Vendor and in the possession or under the control of
the Purchaser pursuant to this Agreement. The Purchaser agrees to ensure that the Purchaser, its
officers, employees, agents and sub -contractors shall not directly or indirectly disclose or use, either
during or following the term of this Agreement, except where required by law, any material or
information belonging to the Vendor pursuant to this Agreement, without first obtaining the prior
written consent of the Vendor for such disclosure or use and in the event of termination of this
Agreement, the Purchaser will be responsible for returning all such documentation and information
to the Vendor without making copies.
SECTION 24
GENERAL
24.01 From and after the Execution Date, the Purchaser shall indemnify and save harmless the Vendor
parties from, any and all costs (including legal, consultant and witness costs and fees), claims,
demands, actions, prosecutions, administrative hearings, fines, losses, damages, penalties,
judgments, awards (including awards of costs) and liabilities (including sums paid in settlement of
claims), including but not limited to any such costs, claims, demands, actions, prosecutions,
administrative hearings, fines, losses, damages, penalties, judgments, awards and liabilities that
may result from a breach by the Vendor under the HMQ Purchase Agreement, that may arise as a
result of any act or omissions on the part of the Purchaser or any breach by the Purchaser of the
terms of this Agreement. For greater certainty, the Purchaser acknowledges and agrees that the
Vendor has agreed to enter into the HMQ Purchase Agreement, solely for the purposes of enabling
the sale of the Lands to the Purchaser as set out in this Agreement.
24.02 Time shall in all respects be of the essence of this Agreement, provided that the time for doing or
completing any matter provided for in this Agreement may be extended or abridged by an
agreement in writing, signed by the Vendor and the Purchaser or by an agreement between their
respective solicitors who are hereby expressly authorized in this regard. If anything in this
Agreement is to be done on a day which is not a Business Day, the same shall be done on the next
succeeding Business Day.
24.03 This Agreement shall be binding upon, and enure to the benefit of, the Vendor and the Purchaser
and their respective successors and permitted assigns. The Vendor and the Purchaser acknowledge
and agree that the representations, covenants, agreements, rights and obligations of the Vendor and
the Purchaser under this Agreement shall not merge on the completion of this Transaction, but shall
survive completion and remain in full force and effect and be binding upon the parties, save and
except as may be otherwise expressly provided for in this Agreement.
24.04 Whenever the singular is used in this Agreement, it shall mean and include the plural and whenever
the masculine gender is used in this Agreement it shall mean and include the feminine gender if the
context so requires.
24.05 This Agreement constitutes the entire agreement between the parties and there is no representation,
warranty, collateral agreement or condition affecting this Agreement or the Property, except as
specifically set forth in this Agreement. This Agreement may not be modified or amended except
by an instrument in writing signed by the parties hereto.
38997-2005 28875220.8
-26-
24.06 This Agreement and the rights and obligations of the Vendor and the Purchaser shall be determined
in accordance with the laws of the Province of Ontario.
24.07 Wherever this Agreement makes reference to a requirement for the consent or approval of the
Vendor, such consent must be prior written consent and may be arbitrarily and unreasonably
withheld in the sole and absolute discretion of the Vendor.
24.08 No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver
of any other provision (whether or not similar) nor shall any waiver constitute a continuing waiver
unless otherwise expressed or provided.
24.09 If any provision of this Agreement or part thereof or the application thereof to any person or
circumstance, to any extent, shall be determined to be invalid or unenforceable, the remainder of
this Agreement or the application of such provisions or part thereof to any person, party or
circumstance other than those to which it is held invalid or unenforceable shall not be affected
thereby. Each covenant, obligation and agreement in this Agreement shall be separately valid and
enforceable to the fullest extent permitted by law.
24.10 Each of the parties hereto shall from time to time hereafter and upon any reasonable request of the
other and in such form as may be satisfactory to both parties hereunder, execute and deliver, make
or cause to be made all such further acts, deeds, assurances and things as may be required or
necessary to more effectually implement and carry out the true intent and meaning of this
Agreement.
SECTION 25
IRREVOCABLE PERIOD
25.01 Signature of this Agreement by the Purchaser and the submission thereof to the Vendor constitutes
an offer under seal, which is irrevocable for twenty (20) days from the date it is submitted to the
Vendor and open for acceptance by the Vendor during said twenty (20) day period. This offer,
once accepted on the Execution Date, constitutes a binding contract of purchase and sale. The
Purchaser, in submitting this offer, acknowledges that there has been no promise or representation
or assurance given to the Purchaser that any of the terms and conditions in this offer are or will be
acceptable to the Vendor.
[no further text on this page]
38997-2005 28875220.8
-
IN WITNESS WHEREOF the parties hereto have executed this Agreement as evidenced
by their properly authorized officers in that behalf as of the day and year first above written.
OFFERED NY the Purchaser this 04- day of 4 p r , 2020.
10466921 CANADA INC.
By:
By:
Name: M/&.. -1; -
Title: 4)/ e tie 72:t
Nam- e: -"ThirlWiT484‘..- •
Title: uccroA
1/We have authority to bind the
Corporation
ACCEPTED 13Y the Vendor this day of , 2020.
Signature page to Developer Agreement of Purchase and Sale
38997-2005 28875220,6
THE CORPORATION OF THE CITY OF
PICKERING
By:
Name:
Title:
By:
Name:
Title;
I/We have authority to bind the
Corporation
-1 -
IN WITNESS WHEREOF the parties hereto have executed this Agreement as evidenced
by their properly authorized officers in that behalf as of the day and year first above written.
OFFERED BY the Purchaser this day of , 2020.
10466921 CANADA INC.
By:
By:
Name:
Title:
Name:
Title:
Me have authority to bind the
Corporation
ACCEPTED BY the Vendor this 21st day of April , 2020.
THE CORPORATION OF THE CITY OF
PICKERING
By:
By:
Signature page to Developer Agreement of Purchase and Sale
38997-2005 28875220.8
Name: Tony Prevedel
Title: Chief Administrative Officer
Name:
Title:
I/We have authority to bind the
Corporation
SCHEDULE A-1
DESCRIPTION OF LANDS
PART LOT 24, CONCESSION 5 PICKERING
AND
PART LOTS 25 AND 26, CONCESSION 5 PICKERING
(Areas to be determined upon completion of the reference plan prepared pursuant to Section 13.01, and in
accordance with the mapping at Schedule A-2)
38997-2005 28875220.8
SCHEDULE A-2
SKETCH OF LANDS
•
• .iil-.a019
Prestlga General''
x
Maa2L
Max 2 Lots
� I
9LOCl(6
Prestige Cameral
22.12Acrs
855Ha
Max IS Lae;
$LOCK ID
,erestige Cetera!
IA4.SAeres
a.ajHa
Ma8•10 rats
•
5TAEET A
ROCK 1
Prestige General
13.58acres
5.50Ha
naaa 5Lots
II
f ` i h
11{ 1f
Prestige General
34.7uAcrea.
1 14 a1?a
Mao letl
38997-2005 28875220.8
TRANSITWAY
(a) General Encumbrances:
(i)
SCHEDULE B
PERMITTED ENCUMBRANCES
the Lease(s), if any (for greater certainty including expired leases registered against title to
the Lands), and any notices of such leases registered on title to the Lands, including all
easements, rights of way, restrictions, restrictive covenants, servitudes and other similar
rights in land contained in the Lease(s), which exist as of the Closing Date and any
leasehold mortgages or security interests relating to tenants or the tenants' interest in
respect thereof and which do not encumber the interest of the landlord thereunder;
(ii) liens for real property taxes (which term includes charges, rates and assessments) or
charges for electricity, power, gas, water and other services and utilities in connection with
the Property or for construction in connection with the Property for amounts the payment
of which is not yet due or delinquent;
(iii) any easements, rights of way, restrictions, building schemes, licences, restrictive covenants
and servitudes, rights of access or use, airport zoning regulations and other similar rights
in land (including, without limitation, rights of way and servitudes for sewers, drains, gas
and water mains, electrical power, telephone and cable conduits, poles, wires or cables)
granted to, reserved or taken by any person which do not, in the aggregate, materially and
adversely impair the use or marketability of any of the Property for the purposes for which
it is presently held, and any rights reserved or vested in any Authority or public or private
utility by the terms of any lease, licence, franchise, grant, agreement or permit, subdivision,
development, servicing, encroachment, site plan, parking or other similar agreement with
any Authority or public or private utility;
(iv) title defects or irregularities which do not, in the aggregate, materially and adversely impair
the use of the Property for the purpose for which it is presently held;
(v) any cost sharing, common use, reciprocal or other similar agreements relating to the use
and/or operation of the Property and/or adjoining properties provided the same are
complied with in all material respects and all security given by the parties thereto to each
other to secure their respective obligations thereunder;
(vi) any subsisting reservations, limitations, provisos, conditions or exceptions, including
royalties, contained in the original grant of the Property from the Crown;
(vii) any rights of expropriation, access or use, or any other right conferred or reserved by or in
any statute of Canada or the Province of Ontario;
(viii) the provisions of all applicable laws including by-laws, regulations, ordinances, land use
contracts, development agreements and similar instruments relating (without limitation) to
development, use and zoning;
(ix) encroachments by any improvements on the Property over adjoining lands and easements
or rights of way and/or any improvements on adjoining lands encroaching on the Property
which do not materially and adversely affect the present use of the Property;
38997-2005 28875220.8
(x) all registered and unregistered agreements, easements, rights, covenants and/or restrictions
in favour of municipalities, publicly or privately regulated utilities or adjoining owners, or
that otherwise run with the Lands; and
(xi) any encroachments that are shown on existing surveys or as may be revealed by an up-to-
date survey.
(b) Specific Encumbrances:
(i) All instruments registered on title to the Property as of the Closing Date, including but
not limited to:
1. Notice of the Phase 1 RFEA;
2. Notice of the Pickering FIA;
3. Notice of the Seaton CSA;
4. Notice of the Seaton -Durham CSA; and
5. Notice of the Participation Agreement.
38997-2005 28875220.8
SCHEDULE C
PROPERTY DOCUMENTS
[Note: Vendor to provide within three (3) days of the date of receipt by the Vendor of same from
HMQ in accordance with Section 5.05.]
38997-2005 28875220.8
SCHEDULE D
INTENTIONALLY DELETED
38997-2005 28875220.8
BETWEEN:
TORYS LLP
AND:
SCHEDULE E
DOCUMENT REGISTRATION AGREEMENT
(hereinafter referred to as the "Vendor's Solicitor")
(hereinafter referred to as the "Purchaser's Solicitor")
RE: The Corporation of the City of Pickering (the "Vendor") sale to <> (the "Purchaser") of the property
legally described as <>, City of <>, being the whole of PIN o(LT) (the "Property" pursuant to an
Agreement of Purchase and Sale between the Purchaser, as purchaser, and the Vendor, as vendor, dated o
and accepted <> (the "Purchase Agreement"), scheduled to be completed on <> (the "Closing Date")
Holding Deliveries
In Escrow
Advising of
Concerns with
Deliveries
Selecting Solicitor
Responsible for
Registration
FOR GOOD AND VALUABLE CONSIDERATION (the receipt and
sufficiency of which is hereby expressly acknowledged), the parties hereto hereby
undertake and agree as follows:
1. The Vendor's Solicitor and the Purchaser's Solicitor shall hold all funds, keys and closing
documentation exchanged between them (the "Requisite Deliveries") in escrow, and shall not release
or otherwise deal with same except in accordance with the terms of this Agreement. Both the
Vendor's Solicitor and the Purchaser's Solicitor have been authorized by their respective clients to
enter into this Agreement. Once the Requisite Deliveries can be released in accordance with the
terms of this Agreement, any monies representing payout funds for mortgages to be discharged shall
be forwarded promptly to the appropriate mortgage lender.'
2. Each of the parties hereto shall notify the other as soon as reasonably possible following
their respective receipt of the Requisite Deliveries (as applicable) of any defect(s) with respect to same.
3. The Purchaser's Solicitor shall be responsible for the registration of the Electronic
Documents (as hereinafter defined) unless the box set out below indicating that the Vendor's
Solicitor will be responsible for such registration has been checked. For the purposes of this
Agreement, the solicitor responsible for such registration shall be referred to as the "Registering
Solicitor" and the other solicitor shall be referred to as the "Non -Registering Solicitor":
Vendor's Solicitor will be registering the Electronic Documents
'Solicitors should continue to refer to the Law Society of Upper Canada practice guidelines relating to recommended procedures to follow
for the discharge of mortgages.
38997-2005 28875220.8
Responsibility of
Non -Registering
Solicitor
Responsibility of
Registering
Solicitor
Release of Requisite
Deliveries by Non -
Registering Solicitor
Returning
Deliveries where
Non -registration
Counterparts
& Gender
Purchase
Agreement
Prevails if
Conflict or
Inconsistency
Telefaxing
Deliveries
& Providing
Originals if
Requested
4. The Non -Registering Solicitor shall, upon his/her receipt and approval of the Requisite
Deliveries (as applicable), electronically release for registration the Electronic Documents and shall
thereafter be entitled to release the Requisite Deliveries from escrow forthwith following the earlier
of:
a) the registration of the Electronic Documents; or
b) receipt of notification from the Registering Solicitor of the registration of the
Electronic Documents.
5. The Registering Solicitor shall, subject to paragraph 7 below, on the Closing Date,
following his/her receipt and approval of the Requisite Deliveries (as applicable), register the
documents listed in Schedule A annexed hereto (referred to in this agreement as the "Electronic
Documents") in the stated order of priority therein set out, as soon as reasonably possible once same
have been released for registration by the Non- Registering Solicitor, and immediately thereafter
notify the Non -Registering Solicitor of the registration particulars thereof by telephone or telefax (or
other method as agreed between the parties).
6 Upon registration of the Electronic Documents and notification of the Non -Registering
solicitor in accordance with paragraph 5 above, the Non- Registering Solicitor shall be entitled to
forthwith release the Requisite Deliveries from escrow.
7. Any of the parties hereto may notify the other party that he/she does not wish to proceed
with the registration of the Electronic Documents, and provided that such notice is received by the
other party before the release of the Requisite Deliveries pursuant to this Agreement and before the
registration of the Electronic Documents, then each of the parties hereto shall forthwith return to the
other party their respective Requisite Deliveries.
8. This agreement may be signed in counterparts, and shall be read with all changes of gender
and/or number as may be required by the context.
9. Nothing contained in this agreement shall be read or construed as altering the respective
rights and obligations of the Purchaser and the Vendor as more particularly set out in the Purchase
Agreement, and in the event of any conflict or inconsistency between the provisions of this
agreement and the Purchase Agreement, then the latter shall prevail.
10. This agreement (or any counterpart hereof), and any of the closing documents hereinbefore
contemplated, may be exchanged by telefax or similar system reproducing the original, provided that
all such documents have been properly executed by the appropriate parties. The party transmitting
any such document(s) shall also provide the original executed version(s) of same to the recipient
within 2 business days after the Closing Date, unless the recipient has indicated that he/she does not
require such original copies.
Dated this day of <>, 20 . Dated this day of <>, 20 .
Name/Firm Name of Vendor's Solicitor Name/Firm Name of Purchaser's Solicitor
2 For the purpose of this Agreement, the term "registration" shall mean the issuance of registration number(s) in respect of the Electronic
Documents by the appropriate Land Registry Office.
38997-2005 28875220.8
<> <>
(Signature) (Signature)
Note: This version of the Document Registration Agreement was adopted by the Joint LSUC-CBAO Committee
on Electronic Registration of Title Documents on March 29, 2004 and posted to the web site on April 8, 2004.
Schedule "A"
1. Transfer from The Corporation of the City of Pickering to <>; and
2. ROFR in favour of The Corporation of the City of Pickering.
38997-2005 28875220.8
SCHEDULE F
INTENTIONALLY DELETED
38997-2005 28875220.8
BETWEEN:
SCHEDULE G
ROFR AGREEMENT
XXXX
(the "Grantor")
-and-
THE CORPORATION OF THE CITY OF PICKERING
(the "Grantee")
WHEREAS the Grantor is the registered owner of the lands and premises described in Schedule "A" hereto
(the "Property");
AND WHEREAS the Grantor has agreed to grant to the Grantee certain rights with respect to the Property
on the terms and subject to the conditions of this Agreement;
NOW THEREFORE, in consideration of the mutual covenants and agreements set out in this Agreement
and for other good and valuable consideration (the receipt and sufficiency of which are hereby
acknowledged), the parties covenant and agree as follows:
ARTICLE 1
INTERPRETATION
1.1 Definitions
In this Agreement, all capitalized terms shall have the respective meanings assigned thereto below:
"Acceptance Notice" has the meaning ascribed thereto in Section 2.1(b)(i).
"Affiliate" has the meaning set out in the Business Corporations Act, R.S.O. 1990, c. B. 16.
"Agreement" means this agreement, as further amended from time to time, and "Article",
"Section", "Sub -Section" and "Schedule" mean the specified article, section or schedule, as the
case may be, of this Agreement.
38997-2005 28875220.8
"Business Day" means any day other than a Saturday, Sunday or statutory or civic holiday in the
Province of Ontario.
"Closing" has the meaning ascribed thereto in Section 2.1(c).
"Closing Date" has the meaning ascribed thereto in Section 2.1(c).
"Development Agreements" has the meaning ascribed to such term in the Original Purchase
Agreement.
"HST" means the goods and services tax or harmonized sales tax payable pursuant to Part IX of the
Excise Tax Act (Canada), as such statute may be amended, modified or replaced from time to time,
including any successor statute.
"Offer Period" has the meaning ascribed thereto in Section 2.1(b).
"Offeror" has the meaning ascribed thereto in Section 2.1(a).
"OREA" means the Ontario Real Estate Association, together with its successors and assigns.
"Original Purchase Agreement" means the agreement of purchase and sale with respect to the
Property dated • made between the Grantee, as vendor and the Grantor, as purchaser.
"Original Purchase Price" means the purchase price for the Property paid by the Grantor to the
Grantee pursuant to the terms of the Original Purchase Agreement.
"Property" has the meaning ascribed thereto in the recitals, and including all buildings, structures,
improvements located thereon and appurtenances thereto.
"Rejection Notice" has the meaning ascribed thereto in Section 2.1(b)(ii).
"ROFR Notice" has the meaning ascribed thereto in Section 2.1(a).
"Sale Interest" has the meaning ascribed thereto in Section 2.1(a).
"Sale Price" has the meaning ascribed thereto in Section 2.1(a)(ii).
"Third Party Offer" has the meaning ascribed thereto in Section 2.1(a).
1.2 Schedule
The following Schedule is attached to and forms part of this Agreement:
Schedule A - Legal Description of the Property
38997-2005 28875220.8
1.3 Interpretation
(a) Headings and Table of Contents. The division of this Agreement into Articles, Sections and
Sub -Sections and the insertion of headings are for convenience of reference only and will not
affect the construction or interpretation of this Agreement.
(b) Number and Gender. Unless the context requires otherwise, words importing the singular
include the plural and vice versa and words importing gender include all genders.
(c) Severability. If any provision contained in this Agreement or its application to any party or
circumstance will, to any extent, be invalid or unenforceable, the remainder of this
Agreement or the application of such provision to parties or circumstances other than those
to which it is held invalid or unenforceable, will not be affected, and each provision of this
Agreement will be separately valid and enforceable to the fullest extent permitted by law.
(d) Time. Time will be of the essence of this Agreement. Except as expressly set out in this
Agreement, the computation of any period of time referred to in this Agreement will exclude
the first day and include the last day of such period. The time limited for performing or
completing any matter under this Agreement may be extended or abridged by an agreement
in writing by the parties hereto. If any payment is required to be made or other action is
required to be taken pursuant to this Agreement on a day which is not a Business Day, then
such payment or action will be made or taken on the next Business Day.
(e) Governing Law. This Agreement will be governed by and construed in accordance with the
laws of the Province of Ontario and the federal laws of Canada applicable therein.
ARTICLE 2
RIGHT OF FIRST REFUSAL AND BUY BACK
2.1 Right of First Refusal
(a) If at any time, and from time to time, on or prior to the tenth (10th) anniversary of the date of
this Agreement, the Grantor receives a bona fide written offer (a "Third Party Offer") from
any third party (the "Offeror") to purchase all or part of the Property (the "Sale Interest"),
which the Grantor is willing to accept, the Grantor shall, before accepting such Third Party
Offer, deliver written notice thereof to the Grantee (the "ROFR Notice") within three
(3) Business Days following the date on which the Third Party Offer was received by the
Grantor, which notice shall:
(i)
38997-2005 28875220.8
confirm that the Grantor has received a Third Party Offer which the Grantor is
willing to accept;
(ii) contain an offer to sell the Sale Interest to the Grantee on the same terms and
conditions as those contained in the Third Party Offer save and except that the
purchase price payable by the Grantee for the Sale Interest shall be:
(A) either (i) where the Sale Interest is comprised of all of the Property, the
Original Purchase Price; or (ii) where the Sale Interest is comprised of part
of the Property, the amount determined on a proportionate basis calculated
using the acreage of the Sale Interest multiplied by the amount per acre of
the Original Purchase Price; plus
(B) any amounts paid by the Grantor pursuant to the terms of the Development
Agreements, less any amounts which the Grantor may have received by way
of development credits or otherwise, during the period of the Grantor's
ownership of the Property.
The purchase price at which the Sale Interest is offered for sale to the Grantee as
determined in accordance with this Section is referred to as the "Sale Price".
(iii) contain a true and complete copy of the Third Party Offer signed by the Offeror; and
(iv) be accompanied by a certificate of the Grantor stating that: (A) the copies of the
Third Party Offer contained in such notice are true and complete copies thereof;
(B) such Third Party Offer has not been amended, restated and/or supplemented; and
(C) such offer constitutes a Third Party Offer in accordance with the terms hereof.
(b) The Grantee shall have the right, exercisable by notice in writing given to the Grantor within
fifteen (15) Business Days following receipt of a ROFR Notice (the "Offer Period") to elect
to:
(i)
purchase the Sale Interest (the "Acceptance Notice") at the Sale Price and on the
same terms and conditions contained in the Third Party Offer (except as set forth in
Section 2.1(c)); or
(ii) not to purchase the Sale Interest and to consent to the sale of the Sale Interest by the
Grantor to the Offeror at the purchase price and on the same terms and conditions
contained in the Third Party Offer (the "Rejection Notice").
(c) If within the Offer Period, the Grantee delivers an Acceptance Notice to the Grantor, there
shall be created at such time, automatically and without any further action or documentation,
a binding agreement of purchase and sale between the Grantor and the Grantee pursuant to
which the Grantor agrees to sell to the Grantee, and the Grantee agrees to purchase from the
Grantor, the Sale Interest at the Sale Price and on the same terms and conditions as those
contained in the Third Party Offer, provided that, subject to the satisfaction of the conditions
contained in the Third Party Offer, closing of the transaction of purchase and sale
38997-2005 28875220.8
(the "Closing") will occur on the date which is sixty (60) days after the Grantee delivers the
Acceptance Notice (the "Closing Date").
(d) If no notice is delivered by the Grantee pursuant to Section 2.1(b), the Grantee shall be
deemed to have delivered the Rejection Notice.
(e) If the Grantee has delivered, or has been deemed to deliver, the Rejection Notice, the Grantor
may sell the Sale Interest to the Offeror, at the purchase price and on the terms and conditions
contained in the Third Party Offer; provided that if such sale of the Sale Interest to the Offeror
does not occur on such terms within one hundred and twenty (120) days following the expiry
of the Offer Period, the Grantor must again comply with this Section 2.1 in respect of any
future proposed sale of all or part of the Property.
(f) If a sale of part of the Property only is completed by the Grantor pursuant to this Section 2.1,
the Grantee's right of first refusal shall continue in full force and effect with respect to the
remainder of the Property.
(g) The Grantor and the Grantee agree and acknowledge that the Grantor shall be entitled to
transfer the Property to an Affiliate without triggering this right of first offer and without
consent of the Grantee, provided the Grantor provides the Grantee with fifteen (15) days prior
written notice of such transfer.
2.2 Right to Buy Back
(a) If the Grantor has failed to:
(i)
obtain and deliver copies to the Grantee, of all development approvals, building
permits and other third permits or consents required to construct on the Property a
building of not less than [250,000] square feet (the "New Building"); and
(ii) commence construction of the New Building,
on or before the fifth (5th) anniversary of the date of this Agreement, then at any time, and
from time to time, on or after the fifth (5th) anniversary of the date of this Agreement, the
Grantee shall have the right, but not the obligation, upon written notice to the Grantor, to
repurchase the Property, for a purchase price equal to:
(A) the Original Purchase Price; plus
(B) any amounts paid by the Grantor pursuant to the terms of the Development
Agreements, less any amounts which the Grantor may have received by way
of development credits or otherwise, during the period of the Grantor's
ownership of the Property.
38997-2005 28875220.8
(b) If the Grantee delivers written notice of its intention to repurchase the Property in accordance
with Section 2.2(a), there shall be created at such time, automatically and without any further
action or documentation, a binding agreement of purchase and sale between the Grantor and
the Grantee pursuant to which the Grantor agrees to sell to the Grantee, and the Grantee
agrees to purchase from the Grantor, the Property at the price calculated in accordance with
Section 2.2(a) and on the terms and conditions set out in the OREA form of agreement of
purchase and sale (commercial) current (as at the date of execution of this Agreement),
provided that, Closing will occur on the date which is sixty (60) days after the Grantee
delivers the written notice in accordance with Section 2.2(a).
2.3 Closing
The following provisions shall pertain to the Closing pursuant to Section 2.1 or 2.2 hereof, as applicable:
(a) Closing shall occur at 12:00 p.m. on the Closing Date, or such earlier or later date as may be
mutually agreed upon, in writing, by the parties to the transaction; and
(b) on or before Closing:
(i)
the Grantor shall cause to be executed and delivered to the Grantee an electronic
transfer(s)/deed(s) of land/registerable deeds of sale/transfers of land transferring the
Sale Interest to the Grantee or as it may direct, and containing the statements of the
Grantor and its solicitors pursuant to Section 50(22) of the Planning Act (Ontario);
(ii) the Grantor shall certify that it is not a non-resident of Canada within the meaning of
Section 116 of the Income Tax Act (Canada); and
(iii) the Grantor shall execute and deliver or cause to be executed and delivered such
other closing documents which are required to effectively transfer and convey the
Sale Interest or the Property, as applicable, to the Grantee and which the Grantee or
its solicitors have reasonably requested on or before the Closing Date.
ARTICLE 3
GENERAL
3.1 Registration
The Grantee may prepare and register on title to the Property, at the Grantee's cost, a notice in respect of this
Agreement (the "Notice"). Upon expiry of this Agreement, the Grantee shall arrange for the discharge from
title to the Property of such Notice at the Grantee's cost.
38997-2005 28875220.8
3.2 Planning Act
This Agreement and the completion of any transaction of purchase and sale contemplated by this Agreement
are subject to compliance with Section 50 of the Planning Act (Ontario).
3.3 Further Assurances
Each of the parties hereto shall promptly do, make, execute or deliver, or cause to be done, made, executed
or delivered, all such further acts, documents and things as the other parties to this Agreement may reasonably
require from time to time for the purpose of giving effect to this Agreement and shall use reasonable efforts
and take all such steps as may be reasonably within their power to implement to their full extent the provisions
of this Agreement.
3.4 Waiver, Amendment
Except as expressly provided in this Agreement, no amendment or waiver of this Agreement shall be binding
unless executed in writing by the party to be bound by it. No waiver of any provision of this Agreement shall
constitute a waiver of any other provision nor shall any waiver of any provision of this Agreement constitute
a continuing waiver unless otherwise expressly provided.
3.5 Successors and Assigns
All of the covenants and agreements contained in this Agreement will be binding upon and will enure to the
benefit of and be enforceable by the parties hereto and their respective successors and assigns. This
Agreement is intended to run with title to the Property and will be binding on the Grantor's successors in
interest as owner of the Property or any part thereof or interest therein.
3.6 Agreement Runs with Land
The Grantor acknowledges that the provisions of this Agreement run with title to the Property, and the Grantor
covenants not to sell, transfer or otherwise alienate the Property or any part thereof unless such transferee
agrees to be bound by the terms of this Agreement.
3.7 Notices
(a) Addresses for Notice. Any notice, demand, statement, request or other communication (in
this Agreement referred to as "notice") required or permitted to be given under this
Agreement shall be in writing and shall be deemed to have been sufficiently and effectually
given if signed by or on behalf of the party giving the notice and personally delivered, sent
by facsimile or email or mailed by registered prepaid post to the intended recipient addressed
as follows:
(A) in the case of the Grantor, addressed to it at:
■
38997-2005 28875220.8
Attention: ■
Facsimile No.: (■) ■
Email: ■
(B) and in the case of the Grantee addressed to it at:
The Corporation of the City of Pickering
One The Esplanade
Pickering
Ontario, L 1 V 6K7
Attention: Paul Bigioni, Director, Corporate Services and City Solicitor
Telephone: (905) 420-4660 ext. 2048
Email: pbigioni(a,pickering.ca
(b) Receipt of Notice. Any notice given as aforesaid shall be conclusively deemed to have been
received on the date of such personal delivery or if sent by facsimile or email transmission
before 5:00 p.m. (local time of the recipient) on a Business Day on the date of such
transmission (and if not then on the next Business Day) or if sent by registered mail on the
third (3rd) Business Day following the mailing thereof, as the case may be. If a notice is sent
by facsimile or email, a copy thereof shall be sent on the same day by ordinary mail, postage
prepaid or personal delivery. In the event of a labour dispute, postal interruption or a
reasonable anticipation thereof, all notices required to be given under this Agreement shall
be sent by facsimile or email transmission or personally delivered.
(c) Change of Address. Any party may from time to time change its address under this
Section by notice to the other party given in the manner provided by this Section.
3.8 Counterparts
This Agreement may be executed in counterparts, each of which shall be an original and all such counterparts
taken together shall constitute one and the same instrument. Delivery of an executed counterpart of this
Agreement by facsimile transmission or by electronic delivery in portable document format (".pdf') shall be
equally effective as delivery of a manually executed counterpart thereof.
38997-2005 28875220.8
IN WITNESS WHEREOF the parties have executed this Agreement effective as of the date first written
above.
■
Per:
Name:
Title:
Per:
Name:
Title:
UWe have the authority to bind the Corporation.
THE CORPORATION OF THE CITY OF PICKERING
Per:
Name:
Title:
Per:
Name:
Title:
U We have the authority to bind the Corporation.
38997-2005 28875220.8
SCHEDULE H
PURCHASER'S ENVIRONMENTAL INDEMNITY AND COVENANT NOT TO SUE
TO: The Corporation of the City of Pickering (the "Vendor")
AND TO: «Purchaser's Solicitor Name and/or Law Firm Name», its solicitors
RE: «Purchaser(s) Name» (the "Purchaser") purchase from the Vendor of the property legally
described as «Legal Description», being «the whole OR part» of PIN «Enter PIN»
(LT) (the "Property") pursuant to an Agreement of Purchase and Sale between the Purchaser, as purchaser,
and the Vendor, as vendor, accepted «Date Offer Accepted», as may be amended from time to time
(the "Purchase Agreement")
In consideration the closing of the Transaction and other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged:
1. The Purchaser agrees to accept, assume and take title the Property and any improvement thereon
in an "As Is Where Is" condition in accordance with section 5 of the Purchase Agreement.
2. The Purchaser acknowledges and hereby agrees to indemnify and save harmless the Vendor and
its employees, directors, officers, appointees and agents from, any and all costs (including legal,
consultant and witness costs and fees), claims, demands, actions, prosecutions, administrative
hearings, fines, losses, damages, penalties, judgments, awards (including awards of costs) and
liabilities (including sums paid in settlement of claims), that may arise as a result of the condition
of the Property, the presence of Hazardous Substances or Contaminants in, on or under the Lands,
the Buildings or any structure or paved surface, or in any environmental medium (including, but
not limited to, the soil, groundwater, or soil vapour on or under, or emanating from the Property),
any order issued by any Authority in connection with the condition of the Property, or any loss,
damage, or injury caused either directly or indirectly as a result of the condition of the Property
including, without limitation, non-compliance with Environmental Law or the existence of any
Hazardous Substance or Contaminant. Without limiting the generality of the foregoing, this
indemnification shall specifically cover costs incurred, from and after the Closing Date, in
connection with any claim for personal injury and/or death, property damage, investigation of
site conditions and/or any clean-up, remedial, removal, monitoring or restoration work required
by any federal, provincial, or local government agency or political subdivision because of the
presence of Hazardous Substances, in, on or under the Lands, the Buildings or any environmental
medium, structure or paved surface or emanating therefrom.
3. The Purchaser covenants and agrees that, effective as of the Closing Date, the Purchaser forever
releases and covenants not to sue the Vendor and its employees, directors, officers, appointees
and agents with respect to anything arising out of the environmental or any other condition of the
Property or the presence of Hazardous Substances or Contaminants in, on, under, or emanating
from or onto the Property, regardless of whether such environmental conditions or the presence
of Hazardous Substances or Contaminants is known or unknown by the Purchaser and regardless
38997-2005 28875220.8
of whether such condition is set forth in the Property Documents, the Purchaser's Reports or any
other report, document or information discovered during the course of the Purchaser's due
diligence or otherwise. The foregoing release and covenant not to sue shall apply to all claims at
law or in equity, including, but not limited to, claims or causes of action for personal injury or
death, property damage, statutory claims under Environmental Laws and claims for contribution.
4. This Indemnity shall not merge but shall survive the Date of Closing and shall be continuing
obligation of the Purchaser.
5. Unless otherwise defined herein, all capitalized terms used herein have the meaning ascribed to
them in the Purchase Agreement.
6. The provisions of this Purchaser's Environmental Indemnity and Covenant Not to Sue shall enure
to the benefit of the Vendor and its successors and assigns and shall be binding upon the
Purchaser and its successors and permitted assigns.
DATED as of the day of «Month», «Year».
«PURCHASER(S) NAME»
Per:
Per:
Name: «Individual Signing Documents for
Corporation»
Title: «Title»
Name: «Individual Signing Documents for
Corporation, if there is a second person»
Title: «Title»
UWe have the authority to bind the Corporation.
38997-2005 28875220.8
• Y
seg
Attachment No. 6 to Report CAO 02-20
NORTH PICKERING LANDOWNERS GROUP
INNOVATION CORRIDOR
ESTIMATED FINANCIAL SUMMARY
ITEM
Required payments to be made via cash call
within 2020 to 2022.
OBLIGATIONS DUE TO 1.0.
LAND BLOCK
NO.
LC Required for Region Constructed Work Secured to Date
1
BLOCK 3A
RFEA Region Constructed Top Up
($9,806)
2
Financial Obligations at Closing
RFEA Owner Constructed Top Up
1
3
Seaton EA Funding - DC Recoverable Portion
($9,468)
2
4
Phase 1 RFEA RC Works (Up to DD #12) (Cash or LC)
($50,161)
3
5
Phase 1 RFEA OC Works
($206,806)
4
6
Reimbursements Received To Date
$75,805
5
($235,617)
Group Administration Costs - Veridian Payment
($6,208)
6
($39,385)
CSA Group Costs
($17,197)
Estimated PHS 1 Regional Constructed DC Credits
$307,741
TOTAL ENTITLEMENTS/(OBLIGATIONS)
($214,036)
A)
B)
C)
D)
E)
F)
G=A+B+C+D+
FI
NOTES
Due upon closing.
(H)
(I)
Ul
)K)
IU
)M)
(N=H+I+1+K+L
+M)
0)
111
(a)
(R )
IS=O+P+Q+R)
Required payments to be made via cash call
within 2020 to 2022.
GATIONS DUE TO TRUSTEE OR REGION
Due upon closing. To be provided to Trustee via
certified cheque.
Due upon closing. To be provided to Trustee via
certified cheque.
LC Required for Region Constructed Work Secured to Date
1
1
2
RFEA Region Constructed Top Up
($9,806)
2
($385,036)
RFEA Owner Constructed Top Up
($40,901)
3
($10,688)
Other Group & Administration Top Up
($10,491)
4
($64,196)
Required Security for Owner Constructed Works
($75,846)
5
TOTAL ENTITLEMENTS/(OBLIGATIONS) $1,047,935
Required Future Security for Owner Constructed Works
($23,003)
6
9
RFEA LC for Regional Drawdowns (LC)
($25,447)
($235,617)
10
TOTAL ENTITLEMENTS/(OBLIGATIONS) ($185,494)
(H)
(I)
Ul
)K)
IU
)M)
(N=H+I+1+K+L
+M)
0)
111
(a)
(R )
IS=O+P+Q+R)
Required payments to be made via cash call
within 2020 to 2022.
+ OBLIGATIONS REQUIRED AT DEVELOPMENT EVENT
Due upon closing. To be provided to Trustee via
certified cheque.
Due upon closing. To be provided to Trustee via
certified cheque.
Development Event Financial Obligations
Additional Performance Security Required to
complete RFEA Phase 1 Works to be called
between 2019 & 2020.
1
2
2
Community Land
$0
($385,036)
Community Servicing
$1,475,678
3
($10,688)
CDC Oversizing
($2,373)
4
($64,196)
Regional Front Funding Construction (PHS 2)
($425,369)
Administrative Costs
TOTAL ENTITLEMENTS/(OBLIGATIONS) $1,047,935
(H)
(I)
Ul
)K)
IU
)M)
(N=H+I+1+K+L
+M)
0)
111
(a)
(R )
IS=O+P+Q+R)
m
u)
v)
W)
X)
v)
z=T+u+v+w
+0)
Required payments to be made via cash call
within 2020 to 2022.
Due upon closing. To be provided to Trustee via
certified cheque.
Due upon closing. To be provided to Trustee via
certified cheque.
Due upon closing. To be provided to Trustee via
certified cheque.
Performance Security Required Upon Closing.
This amount will be released as RFEA Phase 1
Works proceed.
Additional Performance Security Required to
complete RFEA Phase 1 Works to be called
between 2019 & 2020.
Due Upon closing. To be used by Region for
future draw downs.
2
m
u)
v)
W)
X)
v)
z=T+u+v+w
+0)
Required payments to be made via cash call
within 2020 to 2022.
1.0. to balance land requirement therefore
obligation to potential purchaser is $0.
Required Payments due prior to site plan
execution.
Required payment due prior to site plan
execution.
Required security to be provided prior to site
plan execution.
RFEA - Owner Constructed (PHS 1) (Cash)
m
u)
v)
W)
X)
v)
z=T+u+v+w
+0)
Required payments to be made via cash call
within 2020 to 2022.
ON GOING OBLIGATIONS TO TRUSTEE AND REGION
IJ
1
Costs for Enterprise Gateway will be 100%
recoverable once 1.0. lands in this area are sold
to future developer.
RFEA - Owner Constructed (PHS 1) (Cash)
($526,061)
2
4
RFEA - Regional Constructed (PHS 1) (Drawdown LC)
($385,036)
4
5
City FIA
($10,688)
5
6
7
Shared Hydro Trunk
($64,196)
6
7
Water Attributions DC's
Administrative Costs
($23,490)
Enterprise Gateway
($5,780)
TOTAL ESTIMATED ON GOING OBLIGATIONS ($1,015,2501
m
u)
v)
W)
X)
v)
z=T+u+v+w
+0)
REGIONAL DEVELOPMENT CHARGES AND CREDITS
Required payments to be made via cash call
within 2020 to 2022.
Required payment to be paid either via cash call
or through site plan agreement.
Required payment to be called via cash call.
Administrative payments to be called via cash
call. Estimated calls to be total of
$2 million/year for 5 years.
Costs for Enterprise Gateway will be 100%
recoverable once 1.0. lands in this area are sold
to future developer.
Due upon Development Event. To be paid to
Trustee a for re -distribution to group.
REGIONAL DEVELOPMENT CHARGES AND CREDITS
1
Due upon Development Event. To be paid to
Region of Durham. Non DC Creditable.
Sanitary Landowner Constructed DC's
($191,581)
2
Due upon Development Event. To be paid to
Trustee a for re -distribution to group.
Sanitary Region Constructed DC's
($70,113)
4
To be received after RFEA PHS 2 agreement in
place and as Seaton Community proceeds with
Development.
Regional Attributions DC's
($232,385)
5
Water Landowner Constructed DC's
($32,064)
6
7
Water Region Constructed DC's
($72,720)
Water Attributions DC's
($160,292)
8
Prepayment of Region Attributions DC's
($479,191)
9
Regional Roads DC's
($235,617)
10
Regional Transit DC's
($39,385)
11
Estimated PHS 1 Regional Constructed DC Credits
$307,741
12
Estimated Phase 1 Owner Constructed DC Credits
$420,849
13
Estimated PHS 2 Regional DC Credits
$340,295
TOTAL ESTIMATED ON GOING OBLIGATIONS ($444,4651
Notes: i)
Values in (Brackets) denotes an under -dedication or required payment. Values without brackets denotes an
entitlement or over -dedication.
ii) Above values include transactions to date paid by 1.0.
iii) I.O. to balance land prior to closing with potential purchaser. Potential purchaser to satisfy any land obligation after
closing based on potential changes to plans within the community.
iv) Community Land under -dedication subject to adjustments based on community use land value established at the time
of development event. Current value is $2,216,500/acre.
v) Performance Security is required upon closing and will be reimbursed throughout the life of Seaton through
development charge credits.
vi) Front Funding Community Servicing Costs for Block 3A include assumptions of construction of Regional Road
Enhancements within Highway 7 and Sideline 24.
vii) City of Pickering DC's not included within the charts above and to be calculated by owner.
viii) Additional recoveries such as Durham Seaton Federal Recoveries are not included in summary above.
P:\1682 North Pickering Landowners Group\Project Management \Cost Sharing \RFEA \Schedules\IO Scenarios\2020 02(Feb) 24 - City Purchases \1682 -Summary for Block 3A.nlsn
(AA)
(BB)
(CC)
)DD)
)EE)
)FF)
(55)
(HH)
U-0
)KK)
)LL)
)MM=AA to
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1682
4/8/2020
Due upon Development Event. To be paid to
Trustee a for re -distribution to group.
Due upon Development Event. To be paid to
Region of Durham. Non DC Creditable.
Due upon Development Event. To be paid to
Trustee a for re -distribution to group.
Due upon Development Event. To be paid to
Trustee a for re -distribution to group.
Due upon Development Event. To be paid to
Region of Durham. Future credits available as
Phase 2 Employment Lands Develop.
Due upon Development Event. To be paid to
Trustee a for re -distribution to group.
Due upon Development Event. To be paid to
Region of Durham. Non DC Creditable.
To be received as Seaton Community proceeds
with Development.
To be received as Seaton Community proceeds
with Development.
To be received after RFEA PHS 2 agreement in
place and as Seaton Community proceeds with
Development.
1682
4/8/2020
•.
SCS
consulting
group ktd
LOCATION PLAN
BLOCK BLOCK
BLOCK 2A BLOCK 6A
lA 3A
HIGHWAY 7
BLOCK 5A
KUBOTA NORTH &
CANADA SOUTH
LTD BLOCK
•
7
/fr,
BUN
BLOCK 3A
INCLUDING
11.68% OF SWM
POND LAN
111E11111:a
ii. 1U•I77II -
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23
—1I
LEGEND:
■
PHASE 1 BOUNDARY
IN SEATON BOUNDARY
*NOTE: LAYOUT IS SCHEMATIC ONLY, DETAILS TO BE
PROVIDED AT DETAILED DESIGN STAGE.
e eL® consulting
gd4 L:7 group ltd
30 CENTURIAN DRIVE, SUITE 100
MARKHAM, ONTARIO L3R 8B8
TEL: (905) 475-1900
FAX: (905) 475-8335
NORTH PICKERING
COMMUNITY
LOCATION PLAN - BLOCK 3A
100 0
500
1000
1500
2000
2500
DESIGNED BY: S.E.M.
CHECKED BY: J.L.B.
SCALE:
1:30000
DATE: APRIL 2020
PROJECT No:
1682
FIGURE No:
File: P:\1682 North Pickering Landowners Group\Drawings\Cost Sharing\Fig\1682CS—LOCP—BLCK-3A.dwg — Revised by GSMEIB0OM> : Fri, Apr 03 2020 — 11:14am
#
OWNERS
1-5
OAK RIDGES SEATON INC.
6
- 9
1133373 ONTARIO INCORPORATED
10
LEBOVIC ENTERPRISES LIMITED
11
- 14
MATTAMY (SEATON) LIMITED
15
- 16
ZAVALA DEVELOPMENTS INCORPORATED
17
LAS LOMAS DEVELOPMENT INC.
18
- 22
WHITE SUN DEVELOPMENTS LIMITED
23
- 32
INFRASTRUCTURE ONTARIO
25/28/29
SEATON TFPM INC.
23
—1I
LEGEND:
■
PHASE 1 BOUNDARY
IN SEATON BOUNDARY
*NOTE: LAYOUT IS SCHEMATIC ONLY, DETAILS TO BE
PROVIDED AT DETAILED DESIGN STAGE.
e eL® consulting
gd4 L:7 group ltd
30 CENTURIAN DRIVE, SUITE 100
MARKHAM, ONTARIO L3R 8B8
TEL: (905) 475-1900
FAX: (905) 475-8335
NORTH PICKERING
COMMUNITY
LOCATION PLAN - BLOCK 3A
100 0
500
1000
1500
2000
2500
DESIGNED BY: S.E.M.
CHECKED BY: J.L.B.
SCALE:
1:30000
DATE: APRIL 2020
PROJECT No:
1682
FIGURE No:
File: P:\1682 North Pickering Landowners Group\Drawings\Cost Sharing\Fig\1682CS—LOCP—BLCK-3A.dwg — Revised by GSMEIB0OM> : Fri, Apr 03 2020 — 11:14am
•).-
SCS
NORTH PICKERING LANDOWNERS GROUP
INNOVATION CORRIDOR
ESTIMATED FINANCIAL SUMMARY
ITEM
■
OBLIGATIONS DUE TO I.O.
LAND BLOCK
N0.
LC Required for Region Constructed Work Secured to Date
Additional Performance Security Required to
complete RFEA Phase 1 Works to be called
between 2019 & 2020.
BLOCK 6A
RFEA - Regional Constructed (PHS 1) (Drawdown LC)
1
($2,169)
Financial Obligations at Closing
City FIA
RFEA Owner Constructed Top Up
Seaton EA Funding - DC Recoverable Portion
($2,094)
2
Other Group & Administration Top Up
Phase 1 RFEA RC Works (Up to DD #14) (Cash or LC)
($11,093)
3
Required Security for Owner Constructed Works
Phase 1 RFEA OC Works
($45,733)
4
Required Future Security for Owner Constructed Works
Reimbursements Received To Date
$16,763
5
RFEA LC for Regional Drawdowns (LC)
Group Administration Costs - Veridian Payment
($1,373)
6
($50,653)
CSA Group Costs
($9,034)
Regional Transit DC's
($8,467)
TOTAL ENTITLEMENTS/(OBLIGATIONS)
($52,563)
A)
B)
C)
o)
IE )
F)
G=A+B+C+
E+FI
NOTES
D+
Due upon closing.
(H)
(1)
(K)
(1)
(M)
(N-H+I+J+K+L
+M)
■
OBLIGATIONS DUE TO TRUSTEE OR REGION
Due upon closing. To be provided to Trustee
via certified cheque.
Due upon closing. To be provided to Trustee
via certified cheque.
LC Required for Region Constructed Work Secured to Date
Additional Performance Security Required to
complete RFEA Phase 1 Works to be called
between 2019 & 2020.
1
RFEA - Regional Constructed (PHS 1) (Drawdown LC)
RFEA Region Constructed Top Up
($2,169)
2
City FIA
RFEA Owner Constructed Top Up
($9,045)
3
($14,196)
Other Group & Administration Top Up
($2,320)
4
($5,195)
Required Security for Owner Constructed Works
($16,773)
5
Water Attributions DC's
Required Future Security for Owner Constructed Works
($5,087)
6
Prepayment of Region Attributions DC's
RFEA LC for Regional Drawdowns (LC)
($5,627)
TOTAL ENTITLEMENTS/(OBLIGATIONS) ($41,020)
(H)
(1)
(K)
(1)
(M)
(N-H+I+J+K+L
+M)
0)
P)
0)
R)
5=0+P+Q+R)
■
Due upon closing. To be provided to Trustee
via certified cheque.
Due upon closing. To be provided to Trustee
via certified cheque.
Due upon closing. To be provided to Trustee
via certified cheque.
Performance Security Required Upon Closing.
This amount will be released as RFEA Phase 1
Works proceed.
Additional Performance Security Required to
complete RFEA Phase 1 Works to be called
between 2019 & 2020.
Due Upon closing. To be used by Region for
future draw downs.
RFEA - Regional Constructed (PHS 1) (Drawdown LC)
0)
P)
0)
R)
5=0+P+Q+R)
■
OBLIGATIONS REQUIRED AT DEVELOPMENT EVENT
Required Payments due prior to site plan
execution.
1
Required security to be provided prior to site
plan execution.
Development Event Financial Obligations
($42,366)
RFEA - Regional Constructed (PHS 1) (Drawdown LC)
Community Land
$0
2
City FIA
Community Servicing
($56,480)
3
($14,196)
CDC Oversizing
($525)
4
($5,195)
Regional Front Funding Construction (PHS 2)
($94,066)
TOTAL ESTIMATED ON GOING OBLIGATIONS ($224,5117
Water Attributions DC's
TOTAL ENTITLEMENTS/(OBLIGATIONS) ($151,071,
0)
P)
0)
R)
5=0+P+Q+R)
T)
U)
V)
W)
X)
5)
2=T+u+v+w
x+y)
ON GOING OBLIGATIONS TO TRUSTEE AND REGION
1.0. to balance land requirement therefore
obligation to potential purchaser is $0.
Required Payments due prior to site plan
execution.
Required payment due prior to site plan
execution.
Required security to be provided prior to site
plan execution.
2
T)
U)
V)
W)
X)
5)
2=T+u+v+w
x+y)
ON GOING OBLIGATIONS TO TRUSTEE AND REGION
1
Required payment to be called via cash call.
RFEA - Owner Constructed (PHS 1) (Cash)
($116,333)
2
($42,366)
RFEA - Regional Constructed (PHS 1) (Drawdown LC)
($85,146)
4
5
($15,505)
City FIA
($2,364)
Regional Attributions DC's
Shared Hydro Trunk
($14,196)
6
7
Water Landowner Constructed DC's
Administrative Costs
($5,195)
Enterprise Gateway
($1,278)
TOTAL ESTIMATED ON GOING OBLIGATIONS ($224,5117
T)
U)
V)
W)
X)
5)
2=T+u+v+w
x+y)
Notes: 1)
ii)
Values in (Brackets) denotes an under -dedication or required payment. Values without brackets denotes an
entitlement or over -dedication.
Above values include transactions to date paid by I.O.
I.O. to balance land prior to closing with potential purchaser. Potential purchaser to satisfy any land obligation after
closing based on potential changes to plans within the community.
iv) Community Land under -dedication subject to adjustments based on community use land value established at the
time of development event. Current value is $2,216,500/acre.
v) Performance Security is required upon closing and will be reimbursed throughout the life of Seaton through
development charge credits.
vi) City of Pickering DC's not included within the charts above and to be calculated by owner.
vii) Additional recoveries such as Durham Seaton Federal Recoveries are not included in summary above.
P:\1682 North Pickering Landowners Group\Project Management \Cost Sharing \RFEA \ Schedules \IO Scenarios \2020 02(Feb) 24 - City Purchases \1682 -Summary for Block 6A.xlsx
(AA)
(BB)
(CC)
(00)
(EE)
(FF)
(GG)
0-0
(KK)
(LL)
(MM=AA to
LL)
Required payments to be made via cash call
within 2020 to 2022.
Required payment to be paid either via cash call
or through site plan agreement.
Required payment to be called via cash call.
Administrative payments to be called via cash
call. Estimated calls to be total of
$2 million/year for 5 years.
Costs for Enterprise Gateway will be 100%
recoverable once 1.0. lands in this area are sold
to future developer.
Sanitary Landowner Constructed DC's
Notes: 1)
ii)
Values in (Brackets) denotes an under -dedication or required payment. Values without brackets denotes an
entitlement or over -dedication.
Above values include transactions to date paid by I.O.
I.O. to balance land prior to closing with potential purchaser. Potential purchaser to satisfy any land obligation after
closing based on potential changes to plans within the community.
iv) Community Land under -dedication subject to adjustments based on community use land value established at the
time of development event. Current value is $2,216,500/acre.
v) Performance Security is required upon closing and will be reimbursed throughout the life of Seaton through
development charge credits.
vi) City of Pickering DC's not included within the charts above and to be calculated by owner.
vii) Additional recoveries such as Durham Seaton Federal Recoveries are not included in summary above.
P:\1682 North Pickering Landowners Group\Project Management \Cost Sharing \RFEA \ Schedules \IO Scenarios \2020 02(Feb) 24 - City Purchases \1682 -Summary for Block 6A.xlsx
(AA)
(BB)
(CC)
(00)
(EE)
(FF)
(GG)
0-0
(KK)
(LL)
(MM=AA to
LL)
Due upon Development Event. To be paid to
Trustee a for re -distribution to group.
REGIONAL DEVELOPMENT CHARGES AND CREDITS
Due upon Development Event. To be paid to
Trustee a for re -distribution to group.
1
Due upon Development Event. To be paid to
Region of Durham. Future credits available as
Phase 2 Employment Lands Develop.
Sanitary Landowner Constructed DC's
($42,366)
2
To be received as Seaton Community proceeds
with Development.
Sanitary Region Constructed DC's
($15,505)
4
Regional Attributions DC's
($51,390)
5
Water Landowner Constructed DC's
($7,091)
6
7
Water Region Constructed DC's
($16,081)
Water Attributions DC's
($35,447)
8
Prepayment of Region Attributions DC's
($105,968)
9
Regional Roads DC's
($50,653)
10
Regional Transit DC's
($8,467)
11
Estimated PHS 1 Regional Constructed DC Credits
$68,053
12
Estimated Phase 1 Owner Constructed DC Credits
$93,066
13
Estimated PHS 2 Regional DC Credits
$75,253
TOTAL ESTIMATED ON GOING OBLIGATIONS ($9
Notes: 1)
ii)
Values in (Brackets) denotes an under -dedication or required payment. Values without brackets denotes an
entitlement or over -dedication.
Above values include transactions to date paid by I.O.
I.O. to balance land prior to closing with potential purchaser. Potential purchaser to satisfy any land obligation after
closing based on potential changes to plans within the community.
iv) Community Land under -dedication subject to adjustments based on community use land value established at the
time of development event. Current value is $2,216,500/acre.
v) Performance Security is required upon closing and will be reimbursed throughout the life of Seaton through
development charge credits.
vi) City of Pickering DC's not included within the charts above and to be calculated by owner.
vii) Additional recoveries such as Durham Seaton Federal Recoveries are not included in summary above.
P:\1682 North Pickering Landowners Group\Project Management \Cost Sharing \RFEA \ Schedules \IO Scenarios \2020 02(Feb) 24 - City Purchases \1682 -Summary for Block 6A.xlsx
(AA)
(BB)
(CC)
(00)
(EE)
(FF)
(GG)
0-0
(KK)
(LL)
(MM=AA to
LL)
1682
4/8/2020
Due upon Development Event. To be paid to
Trustee a for re -distribution to group.
Due upon Development Event. To be paid to
Region of Durham. Non DC Creditable.
Due upon Development Event. To be paid to
Trustee a for re -distribution to group.
Due upon Development Event. To be paid to
Trustee a for re -distribution to group.
Due upon Development Event. To be paid to
Region of Durham. Future credits available as
Phase 2 Employment Lands Develop.
Due upon Development Event. To be paid to
Trustee a for re -distribution to group.
Due upon Development Event. To be paid to
Region of Durham. Non DC Creditable.
To be received as Seaton Community proceeds
with Development.
To be received as Seaton Community proceeds
with Development.
To be received after RFEA PHS 2 agreement in
place and as Seaton Community proceeds with
Development.
1682
4/8/2020
•.
SCS
consulting
group ktd
LOCATION PLAN
rte LEGEND:
BLOCK BLOCK
BLOCK 2A BLOCK 6A
1A 3A
BLOCK 5A
KUBOTA NORTH &
CANADA SOUTH
LTD. BLOCK
7
HIGHWAY 7
BUN
w
BLOCK 6A
INCLUDING
3.08% OF SWM
POND LAND
1111�ii16:a
ii. 1U•177II -
11111111111 iiu�■
lam ii 111: -.
WHITEV
ROA
L
. In I - IL RI_
PlikaM" F�v
`I 111 -. lil!el' 11
�rallil7PMI pal
23
PHASE 1 BOUNDARY
■
IN SEATON BOUNDARY
*NOTE: LAYOUT IS SCHEMATIC ONLY, DETAILS TO BE
PROVIDED AT DETAILED DESIGN STAGE.
eL® consulting
g group ltd
30 CENTURIAN DRIVE, SUITE 100
MARKHAM, ONTARIO L3R 8B8
TEL: (905) 475-1900
FAX: (905) 475-8335
NORTH PICKERING
COMMUNITY
LOCATION PLAN - BLOCK 6A
100 0
500
1000
1500
2000
2500
DESIGNED BY: S.E.M.
CHECKED BY: J.L.B.
SCALE: 1:30000
DATE: APRIL 2020
PROJECT No:
1682
FIGURE No:
File: P: \1682 North Pickering Landowners Group\Drawings\Cost Shoring \Fig\1682CS-LOCP-BLCK-6A.dwg - Revised by <SMEIBOOM> : Fri, Apr 03 2020 - 12:44pm
#
OWNERS
1-5
OAK RIDGES SEATON INC.
6
- 9
1133373 ONTARIO INCORPORATED
10
LEBOVIC ENTERPRISES LIMITED
11
- 14
MATTAMY (SEATON) LIMITED
15
- 16
ZAVALA DEVELOPMENTS INCORPORATED
17
LAS LOMAS DEVELOPMENT INC.
18
- 22
WHITE SUN DEVELOPMENTS LIMITED
23
- 32
INFRASTRUCTURE ONTARIO
25/28/29
SEATON TFPM INC.
23
PHASE 1 BOUNDARY
■
IN SEATON BOUNDARY
*NOTE: LAYOUT IS SCHEMATIC ONLY, DETAILS TO BE
PROVIDED AT DETAILED DESIGN STAGE.
eL® consulting
g group ltd
30 CENTURIAN DRIVE, SUITE 100
MARKHAM, ONTARIO L3R 8B8
TEL: (905) 475-1900
FAX: (905) 475-8335
NORTH PICKERING
COMMUNITY
LOCATION PLAN - BLOCK 6A
100 0
500
1000
1500
2000
2500
DESIGNED BY: S.E.M.
CHECKED BY: J.L.B.
SCALE: 1:30000
DATE: APRIL 2020
PROJECT No:
1682
FIGURE No:
File: P: \1682 North Pickering Landowners Group\Drawings\Cost Shoring \Fig\1682CS-LOCP-BLCK-6A.dwg - Revised by <SMEIBOOM> : Fri, Apr 03 2020 - 12:44pm
• Y
seg
NORTH PICKERING LANDOWNERS GROUP
INNOVATION CORRIDOR
ESTIMATED FINANCIAL SUMMARY
Attachment No. 7 to Report CAO 02-20
1682
ITEM
Required payments to be made via cash call
within 2020 to 2022.
OBLIGATIONS DUE TO 1.0.
LAND BLOCK
NO.
Performance Security Required Upon Closing.
This amount will be released as RFEA Phase 1
Works proceed.
Additional Performance Security Required to
complete RFEA Phase 1 Works to be called
between 2019 & 2020.
BLOCK 7A
2
RFEA Region Constructed Top Up
($15,844)
Financial Obligations at Closing
4
1
($67,081)
Seaton EA Funding - DC Recoverable Portion
($14,986)
2
($16,898)
Phase 1 RFEA RC Works (Up to DD #14) (Cash or LC)
($79,376)
3
($200,659)
Phase 1 RFEA OC Works
($332,761)
4
($36,527)
Reimbursements Received To Date
$120,138
5
($40,406)
Group Administration Costs - Legal Fees
($9,827)
6
CSA Group Costs
($28,434)
11
TOTAL ENTITLEMENTS/(OBLIGATIONS)
($345,246)
A)
8)
Cl
D)
E)
F)
G=A+B+C+D+
+F)
NOTES
Due upon closing.
(H)
(I)
UI
(K)
(L)
(M)
(N=H+I+J+K+L
+M)
a_ OBLIGATIONS REQUIRED AT DEVELOPMENT EVENT
1
2
3
4
Development Event Financial Obligations
Community Land
Community Servicing
CDC Oversizing
Regional Front Funding Construction (PHS 2)
TOTAL ENTITLEMENTS/(OBLIGATIONS)
so
$2,114,934
($3,757)
($673,288)
$1,437,889
(0)
(P)
(0)
(R )
(S=O+P+Q+R)
Required payments to be made via cash call
within 2020 to 2022.
Due upon closing. To be provided to Trustee via
certified cheque.
Due upon closing. To be provided to Trustee via
certified cheque.
Due upon closing. To be provided to Trustee via
certified cheque.
Performance Security Required Upon Closing.
This amount will be released as RFEA Phase 1
Works proceed.
Additional Performance Security Required to
complete RFEA Phase 1 Works to be called
between 2019 & 2020.
Due Upon closing. To be used by Region for
future draw downs.
2
(H)
(I)
UI
(K)
(L)
(M)
(N=H+I+J+K+L
+M)
a_ OBLIGATIONS REQUIRED AT DEVELOPMENT EVENT
1
2
3
4
Development Event Financial Obligations
Community Land
Community Servicing
CDC Oversizing
Regional Front Funding Construction (PHS 2)
TOTAL ENTITLEMENTS/(OBLIGATIONS)
so
$2,114,934
($3,757)
($673,288)
$1,437,889
(0)
(P)
(0)
(R )
(S=O+P+Q+R)
Required payments to be made via cash call
within 2020 to 2022.
OBLIGATIONS DUE TO TRUSTEE OR REGION
Required Payments due prior to site plan
execution.
Required payment due prior to site plan
execution.
LC Required for Region Constructed Work Secured to Date
RFEA - Owner Constructed (PHS 1) (Cash)
1
2
RFEA Region Constructed Top Up
($15,844)
2
4
RFEA Owner Constructed Top Up
($67,081)
3
5
Other Group & Administration Top Up
($16,898)
4
6
7
Required Security for Owner Constructed Works
($200,659)
5
Enterprise Gateway
Required Future Security for Owner Constructed Works
($36,527)
6
($758,815)
RFEA LC for Regional Drawdowns (LC)
($40,406)
Regional Roads DC's
($146,609)
TOTAL ENTITLEMENTS/(OBLIGATIONS) ($377,415)
(H)
(I)
UI
(K)
(L)
(M)
(N=H+I+J+K+L
+M)
a_ OBLIGATIONS REQUIRED AT DEVELOPMENT EVENT
1
2
3
4
Development Event Financial Obligations
Community Land
Community Servicing
CDC Oversizing
Regional Front Funding Construction (PHS 2)
TOTAL ENTITLEMENTS/(OBLIGATIONS)
so
$2,114,934
($3,757)
($673,288)
$1,437,889
(0)
(P)
(0)
(R )
(S=O+P+Q+R)
m
U)
V)
W)
x)
5)
Z=T+U+V+w
+Y)
Required payments to be made via cash call
within 2020 to 2022.
1.0. to balance land requirement therefore
obligation to potential purchaser is $0.
Required Payments due prior to site plan
execution.
Required payment due prior to site plan
execution.
Required security to be provided prior to site
plan execution.
RFEA - Owner Constructed (PHS 1) (Cash)
m
U)
V)
W)
x)
5)
Z=T+U+V+w
+Y)
Required payments to be made via cash call
within 2020 to 2022.
ON GOING OBLIGATIONS TO TRUSTEE AND REGION
u
1
Costs for Enterprise Gateway will be 100%
recoverable once 1.0. lands in this area are sold
to future developer.
RFEA - Owner Constructed (PHS 1) (Cash)
($828,345)
2
Sanitary Region Constructed DC's
RFEA - Regional Constructed (PHS 1) (Drawdown LC)
($611,388)
4
Regional Attributions DC's
City FIA
($16,921)
5
Water Landowner Constructed DC's
Shared Hydro Trunk
($101,644)
6
7
Water Region Constructed DC's
Administrative Costs
($37,190)
Enterprise Gateway
($9,151)
TOTAL ESTIMATED ON GOING OBLIGATIONS ($1,604,639)
m
U)
V)
W)
x)
5)
Z=T+U+V+w
+Y)
Notes: i)
ii)
Values in (Brackets) denotes an under -dedication or required payment. Values without brackets denotes an
entitlement or over -dedication.
Above values include transactions to date paid by I.O.
iii) I.O. to balance land prior to closing with potential purchaser. Potential purchaser to satisfy any land obligation after
closing based on potential changes to plans within the community.
iv) Community Land under -dedication subject to adjustments based on community use land value established at the time
of development event. Current value is $2,216,500/acre.
v) Performance Security is required upon closing and will be reimbursed throughout the life of Seaton through
development charge credits.
vi) Front Funding Community Servicing Costs for Block 2A include assumptions of construction of Regional Road
Enhancements within Highway 7.
vii) City of Pickering DC's not included within the charts above and to be calculated by owner.
viii) Additional recoveries such as Durham Seaton Federal Recoveries are not included in summary above.
P:\1682 North Pickering Landowners Group\Project Management \Cost Sharing \RFEA \Schedules\IO Scenarios\2020 02(Feb) 24 - City Purchases \1682 -Summary for Block 7A.xlsx
(M)
(BB)
(CC)
(DD)
(EE)
(FF)
(GG)
(HH)
U-0
(KK)
(LL)
(MM=AA to
LL)
Required payments to be made via cash call
within 2020 to 2022.
Required payment to be paid either via cash call
or through site plan agreement.
Required payment to be called via cash call.
Administrative payments to be called via cash
call. Estimated calls to be total of
$2 million/year for 5 years.
Costs for Enterprise Gateway will be 100%
recoverable once 1.0. lands in this area are sold
to future developer.
($303,375)
Notes: i)
ii)
Values in (Brackets) denotes an under -dedication or required payment. Values without brackets denotes an
entitlement or over -dedication.
Above values include transactions to date paid by I.O.
iii) I.O. to balance land prior to closing with potential purchaser. Potential purchaser to satisfy any land obligation after
closing based on potential changes to plans within the community.
iv) Community Land under -dedication subject to adjustments based on community use land value established at the time
of development event. Current value is $2,216,500/acre.
v) Performance Security is required upon closing and will be reimbursed throughout the life of Seaton through
development charge credits.
vi) Front Funding Community Servicing Costs for Block 2A include assumptions of construction of Regional Road
Enhancements within Highway 7.
vii) City of Pickering DC's not included within the charts above and to be calculated by owner.
viii) Additional recoveries such as Durham Seaton Federal Recoveries are not included in summary above.
P:\1682 North Pickering Landowners Group\Project Management \Cost Sharing \RFEA \Schedules\IO Scenarios\2020 02(Feb) 24 - City Purchases \1682 -Summary for Block 7A.xlsx
(M)
(BB)
(CC)
(DD)
(EE)
(FF)
(GG)
(HH)
U-0
(KK)
(LL)
(MM=AA to
LL)
REGIONAL DEVELOPMENT CHARGES AND CREDITS
Due upon Development Event. To be paid to
Region of Durham. Non DC Creditable.
1
Due upon Development Event. To be paid to
Trustee a for re -distribution to group.
Sanitary Landowner Constructed DC's
($303,375)
2
To be received as Seaton Community proceeds
with Development.
Sanitary Region Constructed DC's
($111,027)
4
Regional Attributions DC's
($367,990)
5
Water Landowner Constructed DC's
($50,775)
6
7
Water Region Constructed DC's
($115,155)
Water Attributions DC's
($253,828)
8
Prepayment of Region Attributions DC's
($758,815)
9
Regional Roads DC's
($146,609)
10
Regional Transit DC's
($24,506)
11
Estimated PHS 1 Regional Constructed DC Credits
$488,653
12
Estimated Phase 1 Owner Constructed DC Credits
$662,676
13
Estimated PHS 2 Regional DC Credits
$538,630
TOTAL ESTIMATED ON GOING OBLIGATIONS ($442,1201
Notes: i)
ii)
Values in (Brackets) denotes an under -dedication or required payment. Values without brackets denotes an
entitlement or over -dedication.
Above values include transactions to date paid by I.O.
iii) I.O. to balance land prior to closing with potential purchaser. Potential purchaser to satisfy any land obligation after
closing based on potential changes to plans within the community.
iv) Community Land under -dedication subject to adjustments based on community use land value established at the time
of development event. Current value is $2,216,500/acre.
v) Performance Security is required upon closing and will be reimbursed throughout the life of Seaton through
development charge credits.
vi) Front Funding Community Servicing Costs for Block 2A include assumptions of construction of Regional Road
Enhancements within Highway 7.
vii) City of Pickering DC's not included within the charts above and to be calculated by owner.
viii) Additional recoveries such as Durham Seaton Federal Recoveries are not included in summary above.
P:\1682 North Pickering Landowners Group\Project Management \Cost Sharing \RFEA \Schedules\IO Scenarios\2020 02(Feb) 24 - City Purchases \1682 -Summary for Block 7A.xlsx
(M)
(BB)
(CC)
(DD)
(EE)
(FF)
(GG)
(HH)
U-0
(KK)
(LL)
(MM=AA to
LL)
3/27/2020
Due upon Development Event. To be paid to
Trustee a for re -distribution to group.
Due upon Development Event. To be paid to
Region of Durham. Non DC Creditable.
Due upon Development Event. To be paid to
Trustee a for re -distribution to group.
Due upon Development Event. To be paid to
Trustee a for re -distribution to group.
Due upon Development Event. To be paid to
Region of Durham. Future credits available as
Phase 2 Employment Lands Develop.
Due upon Development Event. To be paid to
Trustee a for re -distribution to group.
Due upon Development Event. To be paid to
Region of Durham. Non DC Creditable.
To be received as Seaton Community proceeds
with Development.
To be received as Seaton Community proceeds
with Development.
To be received after RFEA PHS 2 agreement in
place and as Seaton Community proceeds with
Development.
3/27/2020
•.
SCS
consulting
group ktd
LOCATION PLAN
BLOCK BLOCK
KUBOTA BLOCK 5A
CANADA NORTH
LTD.
BLOCK 2A
lA BLOCK 6A
I_ 3A 7A
``11.r� � - B ,� DLE '' HIGHWAY 7
BLOCK
I 11' 1 Ji..IM
:1 ..r- .1... in"
111111MItiefid, 1,- i
-44
vilt�il- r•; �,v.;�
u����l ��■I/
�11■
�11 lir
1 w -11WIELEINIV __ "
-a,_,___AlLaihkrelok4111
ra - Mirk 1 411a.÷.11
"AmmiRNIF►�1�
BUN
BLOCK 7A
11161:111:1
11111111111 iiu�■
1f7■II'I111:-.
WHITEV
ROA
•
1-1%'i mormi-li
I L
14-
23
0
—11
LEGEND:
PHASE 1 BOUNDARY
■
IN SEATON BOUNDARY
*NOTE: LAYOUT IS SCHEMATIC ONLY, DETAILS TO BE
PROVIDED AT DETAILED DESIGN STAGE.
e® consulting
group ltd
30 CENTURIAN DRIVE, SUITE 100
MARKHAM, ONTARIO L3R 8B8
TEL: (905) 475-1900
FAX: (905) 475-8335
NORTH PICKERING
COMMUNITY
LOCATION PLAN - BLOCK 7A
00 0
500
1000
1500
2000
2500
DESIGNED BY: S.E.M.
CHECKED BY: J.L.B.
SCALE: 1:30000
DATE: MARCH 2020
PROJECT No:
1682
FIGURE No:
File: P: \1682 North Pickering Landowners Group\Drawings\Cost Sharing \Fig\1682CS—LOCP—BLCK-7A.dwg — Revised by <SMEIBOOM> : Tue, Mar 10 2020 — 11:50am
#
OWNERS
1-5
OAK RIDGES SEATON INC.
6
- 9
1133373 ONTARIO INCORPORATED
10
LEBOVIC ENTERPRISES LIMITED
11
- 14
MATTAMY (SEATON) LIMITED
15
- 16
ZAVALA DEVELOPMENTS INCORPORATED
17
LAS LOMAS DEVELOPMENT INC.
18
- 22
WHITE SUN DEVELOPMENTS LIMITED
23
- 32
INFRASTRUCTURE ONTARIO
25/28/29
SEATON TFPM INC.
14-
23
0
—11
LEGEND:
PHASE 1 BOUNDARY
■
IN SEATON BOUNDARY
*NOTE: LAYOUT IS SCHEMATIC ONLY, DETAILS TO BE
PROVIDED AT DETAILED DESIGN STAGE.
e® consulting
group ltd
30 CENTURIAN DRIVE, SUITE 100
MARKHAM, ONTARIO L3R 8B8
TEL: (905) 475-1900
FAX: (905) 475-8335
NORTH PICKERING
COMMUNITY
LOCATION PLAN - BLOCK 7A
00 0
500
1000
1500
2000
2500
DESIGNED BY: S.E.M.
CHECKED BY: J.L.B.
SCALE: 1:30000
DATE: MARCH 2020
PROJECT No:
1682
FIGURE No:
File: P: \1682 North Pickering Landowners Group\Drawings\Cost Sharing \Fig\1682CS—LOCP—BLCK-7A.dwg — Revised by <SMEIBOOM> : Tue, Mar 10 2020 — 11:50am
Attachment No. 8 to Report CAO 02-20
The Corporation of the City of Pickering
By-law No. 7755/20
Being a by-law to authorize the Purchase of
Land for the Seaton North Fire Station in the
City of Pickering and the issuance of
debentures in the amount of $1,098,000 for
the Development Charges -Protection
Services Reserve Fund funding for the
Purchase of Land for the Seaton North Fire
Station project, and that the first source of
repayment for this debt is future development
charge collections.
Whereas Section 11 of the Municipal Act, 2001, as amended, provides that a lower -tier
municipality may pass by-laws respecting matters within the spheres of jurisdiction
described in that Section; and,
Whereas Subsection 401(1) of the Municipal Act, 2001, as amended, provides that a
municipality may incur a debt for municipal purposes, whether by borrowing money or in
any other way; and,
Whereas Subsection 401(3) of the Municipal Act, 2001, as amended, provides that a
lower -tier municipality in a regional municipality does not have the power to issue
debentures; and,
Whereas The Regional Municipality of Durham has the sole authority to issue
debentures for the purposes of its lower -tier municipalities including The Corporation of
the City of Pickering (the "City"); and,
Whereas the Council of the City wishes to proceed with debenture financing for the
Purchase of Land for the Seaton North Fire Station project; and
Whereas before authorizing the acquisition in respect to the Purchase of Land for the
Seaton North Fire Station project, the Council of the City had the Treasurer update the
City's Annual Repayment Limit, the Treasurer calculated the estimated annual amount
payable in respect of such project and determined that such annual amount would not
cause the City to exceed the updated limit and therefore, Local Planning Appeal
Tribunal (LPAT) approval is not required as per Section 401 of the Municipal Act, 2001,
as amended, and the regulations made thereunder;
And whereas after determining that Local Planning Appeal Tribunal approval is not
required, the Council of the City approved report CAO 02-20 on the date hereof and
approved the Purchase of Land for the Seaton North Fire Station project in the City of
Pickering;
By-law No. 7755/20 Page 2
Now therefore the Council of The Corporation of the City of Pickering hereby enacts as
follows:
1. That the City proceed with the project referred to as "Purchase of Land for the
Seaton North Fire Station";
2. That the estimated costs of the project in the amount of $1,878,304 be financed as
follows:
a) the sum of $758,000 be financed by the issue of debentures by the
Regional Municipality of Durham over a period not to exceed 10 years;
b) the sum of $21,000 be funded from the Seaton Landowners Group
Financial Impact Agreement Reserve Fund;
c) the sum of $1,098,000 be financed by the issue of debentures by the
Regional Municipality of Durham over a period not to exceed 10 years to
address the funding shortfall of the Development Charges -Protection
Services Reserve Fund ("DC -Protection Services RF"), and this amount be
repaid from future development charge collections;
d) that the sum of $1,304 be funded from property taxes;
3. That the funds to repay the principal and interest of the debentures be provided for
in the annual Current Budget for the City commencing in 2020 or such subsequent
year in which the debentures are issued and continuing thereafter until the
debenture financing is repaid for 2 a) noted above;
4. That the funds to repay the principal and interest of the debentures be provided for
in the annual Current Budget for the City commencing in 2020 or such subsequent
year in which the debentures are issued and continuing thereafter until the
debenture financing is repaid from future development charge as the first source of
repayment for 2 c) noted above.
By-law passed this 13th day of May, 2020
Kevin Ashe, Deputy Mayor
Susan Cassel, City Clerk
The Corporation of the City of Pickering
By-law No. 7756/20
Being a by-law to authorize the Purchase of
Land for the Seaton North Fire Station in the
City of Pickering and the issuance of
debentures in the amount of $758,000.
Whereas Section 11 of the Municipal Act, 2001, as amended, provides that a lower -tier
municipality may pass by-laws respecting matters within the spheres of jurisdiction
described in that Section; and,
Whereas Subsection 401(1) of the Municipal Act, 2001, as amended, provides that a
municipality may incur a debt for municipal purposes, whether by borrowing money or in
any other way; and,
Whereas Subsection 401(3) of the Municipal Act, 2001, as amended, provides that a
lower -tier municipality in a regional municipality does not have the power to issue
debentures; and,
Whereas The Regional Municipality of Durham has the sole authority to issue
debentures for the purposes of its lower -tier municipalities including The Corporation of
the City of Pickering (the "City"); and,
Whereas the Council of the City wishes to proceed with debenture financing for the
Purchase of Land for the Seaton North Fire Station project; and
Whereas before authorizing the acquisition in respect to the Purchase of Land for the
Seaton North Fire Station project, the Council of the City had the Treasurer update the
City's Annual Repayment Limit, the Treasurer calculated the estimated annual amount
payable in respect of such project and determined that such annual amount would not
cause the City to exceed the updated limit and therefore, Local Planning Appeal
Tribunal (LPAT) approval is not required as per Section 401 of the Municipal Act, 2001,
as amended, and the regulations made thereunder;
And whereas after determining that Local Planning Appeal Tribunal approval is not
required, the Council of the City approved report CAO 02-20 on the date hereof and
approved the Purchase of Land for the Seaton North Fire Station project in the City of
Pickering;
Now therefore the Council of The Corporation of the City of Pickering hereby enacts as
follows:
By-law No. 7756/20 Page 2
1. That the City proceed with the project referred to as "Purchase of Land for the
Seaton North Fire Station";
2. That the estimated costs of the project in the amount of $1,878,304 be financed as
follows:
a) the sum of $758,000 be financed by the issue of debentures by the
Regional Municipality of Durham over a period not to exceed 10 years;
b) the sum of $21,000 be funded from the Seaton Landowners Group
Financial Impact Agreement Reserve Fund;
c) the sum of $1,098,000 be financed by the issue of debentures by the
Regional Municipality of Durham over a period not to exceed 10 years to
address the funding shortfall of the Development Charges -Protection
Services Reserve Fund ("DC -Protection Services RF"), and this amount be
repaid from future development charge collections;
d) that the sum of $1,304 be funded from property taxes;
3. That the funds to repay the principal and interest of the debentures be provided for
in the annual Current Budget for the City commencing in 2020 or such subsequent
year in which the debentures are issued and continuing thereafter until the
debenture financing is repaid, for 2 a) noted above;
4. That the funds to repay the principal and interest of the debentures be provided for in
the annual Current Budget for the City commencing in 2020 or such subsequent year
in which the debentures are issued and continuing thereafter until the debenture
financing is repaid from future development charge as the first source of repayment
for 2 c) noted above.
By-law passed this 13th day of May, 2020
Kevin Ashe, Deputy Mayor
Susan Cassel, City Clerk