HomeMy WebLinkAboutCAO 01-18 G141 Report to
PiCKERiNG Executive Committee
Report Number: CAO 01-18
Date: January 8, 2018
•
From: Tony Prevedel
Chief Administrative Officer
Subject: Land Acquisition and Disposal
- Pickering Innovation Corridor - Seaton
- File: D-1100
Recommendation:
1. That Council approve the Agreement of Purchase and Sale dated August 28, 2017 between
Ontario Infrastructure and Land Corporation, as vendor, and the City, as purchaser;
2. That City staff be directed: (i) not to make any environmental objection pursuant to Section 5
of the Agreement of Purchase and Sale and (ii) not to terminate the Agreement of Purchase
and Sale pursuant to Section 5.02(d);
3. That Council approve the waiver of the City sale condition contained in Section 6.04(a) of the
said Agreement of Purchase and Sale, such that the Agreement will become a binding
obligation on both the Province and the City;
4. That City staff be directed to proceed with completion of the said Agreement of Purchase
and Sale; and •
5. That the appropriate City of Pickering officials be authorized to take the necessary actions as
indicated in this Report.
Executive Summary: Pickering's Innovation Corridor lies within the Seaton employment
lands, which are designated for prestige employment uses under the City's Official Plan. In
accordance with Council's direction, staff executed and delivered an Agreement of Purchase and
Sale (the "Agreement") dated August 28, 2017 between Ontario Infrastructure and Land
Corporation (the "Province"), as vendor, and the City, as purchaser. The Agreement provides for
the City's purchase of approximately 28 acres of Seaton employment lands (the "Lands") within
the Innovation Corridor. The Agreement is conditional upon the approval of Council prior to
January 22, 2018.
The City has retained Torys LLP to conduct all necessary title and off-title searches in respect of
the Lands. In addition, staff retained the engineering consulting firm GHD to conduct a Phase 1 _
Environmental Site Assessment of the Lands. The searches did not disclose any title or other
issues which would impair the marketability of the Lands. The Environmental Site Assessment
concluded that there was no evidence of contaminants or environmental hazards on the Lands.
CAO 01-18 January 8, 2018
Subject: Pickering Innovation Corridor— Seaton Page 2
Staff therefore recommend that Council approve the Agreement, waive the conditions contained in
it, and direct staff to proceed with closing the purchase of the Lands in accordance with the terms
of the Agreement.
Financial Implications: The financial plan for this transaction is to have land purchase cost,
including associated fees, recovered from a future sale of the Lands. If there is an unanticipated
delay in the sale of the Lands, the City.can finance this transaction either through internal loans or
through the issuance of a debenture. If a sale of the Land is concluded within one year, an
internal loan will be undertaken. Otherwise, long-term debt may be considered.
The initial cost of the purchase is $2.8 million plus HST, Land Transfer Tax and Provincial Top-up
payment shortfall. In addition, the City may incur front-ending and development servicing costs
while it is the legal owner of the Lands. This is similar to the City's position in Duffin Heights,
where it is subject to cash calls to help pay for its share of Duffin Heights infrastructure. During
the period of the City's ownership of the Lands, the City will have the legal responsibility to meet
any development-related cash calls pursuant to the Seaton Landowners' Cost Sharing
Agreement. Pursuant to Report CAO 02-17, Council has already provided pre-capital 2018
budget approval in the amount of $6.0 million to meet any of these obligations as they relate to the
purchase of the Lands. All of the City's costs will be passed onto the end buyers/users of the
Lands. The 2018 capital budget will include this project, and the funding source will be identified
as "future land sales." This is the same strategy which the City employed for its Clement Roads
Operation Centre site, whereby land was purchased in 2012 and the proceeds from the
subsequent sale of land in Duffin Heights was applied to the cost of the Clements Road site.
Discussion: The Seaton employment lands are designated as prestige employment, and
consist of approximately 323 hectares (800 acres) owned by the Province. This land is shown on
Attachment No. 1. This is the City's Innovation Corridor. The City's Official Plan designates this
land as being suitable for light manufacturing, assembly and processing of goods, research and
development facilities, business services, graphics and design, data and communications, offices
and ancillary retail uses.
In accordance with Council's direction in Report CAO 01-17 (Attachment No. 2) and Report
CAO 02-17 (Attachment No. 3), the Chief Administrative Officer executed the Agreement of
Purchase and Sale dated August 28, 2017 between the Province, as vendor, and the City, as
purchaser. A copy of the Agreement is Attachment No. 4 to this Report. The key provisions of the
Agreement are as follows:
Lands purchased: Approximately 28 acres of employment lands within Seaton.
Purchase price: $2,800,000 ($100,000/acre).
Closing date: 30 business days after waiver of purchaser's conditions (estimated March 6,
2018).
CORP0227-07/01 revised
CAO 01-18 January 8, 2018
Subject: Pickering Innovation Corridor— Seaton Page 3
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 GHD,
Engineering Consultants, to conduct a Phase I Environmental Site Assessment (ESA) of the
Lands. GHD completed the Phase I ESA in November, 2017. The ESA was prepared in
accordance with the Environmental Protection Act and Ontario Regulation 153/04. In the course of
performing the ESA, GHD 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. GHD 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. GHD also
conducted a site inspection and an interview of personnel knowledgeable with the Lands. The
conclusion of the Phase 1 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 this, GHD reports that a more thorough Phase 2 ESA is not required.
Based on the conclusions of the Phase I ESA, City staff recommend that there is no need to make
an environmental objection pursuant to section 5.02 of the Agreement. Given the absence of any
evidence of hazardous substances or contaminants on the Lands, there is no basis upon which 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.
As set out in Reports CAO 01-17 and CAO 02-17 (Attachment Nos. 2 and 3), the City is in
negotiations with a major multinational corporation to locate its manufacturing facility on the
Lands. The proposed facility would initially employ approximately 700 workers with the possibility
of future expansion and employment of an additional 800 workers. These negotiations are
CORP0227-07/01 revised
CAO 01-18 January 8, 2018
Subject: Pickering Innovation Corridor— Seaton Page 4
ongoing, however, they have been delayed due to a corporate reorganization of the manufacturer.
The manufacturer continues to express interest in locating on the Lands, however, City staff have
not as yet been able to secure a binding commitment. Please note, however, that, as set out in
Report CAO 01-17, the purchase of the Lands by the City is still advisable. The Lands are likely to
appreciate in value over time, and could be leased or sold to another employer. City staff have
received numerous expressions of interest from different businesses wanting to locate within the
Innovation Corridor.
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 five years after the City's
initial purchase.
Option Agreement: Schedule "J" to the Agreement is an Option Agreement pursuant to
which the City will become entitled to purchase from the Province additional blocks of employment
lands, as more particularly set out in the Option Agreement. The Option Agreement is of great
value to the City, as it enables the City to acquire future parcels for the purpose of sale to other
businesses seeking to locate within the Innovation Corridor.
Attachments:
1. Map of Innovation Corridor
2. Report to Council CAO 01-17
3. Report to Council CAO 02-17
4. Agreement of Purchase and Sale dated August 28, 2017 between the Province, as vendor,
and the City, as purchaser.
Prepare,. By. 'rep- ed By:
o tA 30164-f- tgf
Paul Bigioni ', Stan ''': owski
Director, C. po :te services & City Solicitor Dire ctor, ance & Treasurer
PB:ks
Recommended for the consideration
of Pickering City Council
Tony Prevedel, P.Eng.
Chief Administrative Officer
CORP0227-07/01 revised
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C.I4a ATTACHMENT# - TO REPORT# r gi Report to
•�f• `� Council
PiCKERiNG
Report Number: CAO 01-17
Date: February 6, 2017
From: Tony Prevedel
Chief Administrative Officer
Subject: Land Acquisition and Disposition
Pickering Innovation Corridor
Seaton
- File: D-1100-001
Recommendation:
1. That staff be directed to continue to negotiate the terms of: (a) an Agreement of Purchase
and Sale of employment lands within the Seaton Development Area (as shown on
Attachment No. 2) between Ontario Infrastructure and Land Corporation, as vendor, and the
City, as purchaser; and (b) an Agreement of Purchase and Sale of those lands between the
City, as vendor, and a major developer, as purchaser;
2. That staff be directed to continue supporting and facilitating the dialogue between the
developer and a multinational manufacturing business that has expressed interest in leasing
the said lands, for the purpose of having the manufacturer move its business operation to the
lands;
3. That the Chief Administrative Officer be authorized to execute the Agreements of Purchase
and Sale referred to in Recommendation 1, in a form satisfactory to the Director, Corporate
Services & City Solicitor, provided that such Agreements are conditional upon the
subsequent approval of Council;
4. That staff be directed to send a copy of this Report to the Minister of Infrastructure, the
Minister of Economic Development and Growth and the Region of Durham; and
5. That the appropriate City of Pickering officials be authorized to take the necessary actions as
indicated in this Report.
Executive Summary: Pickering's Innovation Corridor lies within the Seaton employment
lands, which are designated as prestige employment, under the City's Offical Plan. These lands
have been set aside for industrial/commercial uses. City staff have been actively pursuing the
relocation of a major manufacturing operation to the Innovation Corridor. This could result in the
creation of 700 well-paying new jobs in Pickering based on the first phase of the project, with the
•possibility of future expansion and 800 additional jobs. In addition, this project may generate an
additional $300,000 (City Share only) of additional taxation revenue per year based on the first
phase of the project.
Report CAO 01-17 February 6, 2017
Land Acquisition and Disposition
- Pickering Innovation Corridor
Seaton Page 2
To achieve this, the City must arrange for the purchase of some of the Seaton employment lands
from the Province of Ontario. Those lands will be sold in turn to a developer and leased to the
manufacturing operation. City staff seek the authority of Council to negotiate Agreements of
Purchase and Sale for this purpose, subject to further Council approval. Once the terms of those
Agreements have been finalized, they will be presented to Council at a future public meeting for
approval.
Financial Implications: Direct financial costs for the City in 2017 will be limited to outside legal
fees and the opportunity cost of lost investment revenue. The City will have to fund the deposit
payments required by the Agreement of Purchase and Sale with the Province until the sale of the
subject lands to a developer is completed. The legal fees are included in the General
Government Section of the 2017 budget. Transaction costs associated with this project will be
passed on to the developer. •
With the planned construction of an office and factory facility, the estimated property taxes using
2016 tax rates (City share only) could be in excess of$300,000 per year. The final construction
cost of the facility will be a major component in determining the property's assessment value. In
addition to the annual property taxes, this project would also pay estimated building permit fees of
$400,000 and development charges (City Share only) of$630,000. It must be noted that the
building permit and development charge fees are based on preliminary building drawings.
Pickering's 2016 assessment base consists of 77.3% residential and 22.7%
commercial/industrial. (By contrast, the City of Mississauga assessment base consists of 69.2%
residential and 30.8% commercial/industrial). The long term goal of City staff is to increase the
size of the commercial/industrial property tax base in relation to the residential share, resulting in a
shift of property tax liability to the non-residential group. Staff believes that this project could be
the catalyst for a shift of the assessment base from residential to commercial/industrial. This will
be of great assistance in reducing the tax burden on residential taxpayers.
This project represents an important opportunity for the City as it relates to economic
development. There are always challenges in attracting large businesses and a significant number
of jobs to a community. This manufacturing operation will initially employ over 700 people.
Furthermore, the City's economic development staff have been introduced by this manufacturer to
other large suppliers and partners, who have also expressed an interest in investment
opportunities in the City's Innovation Corridor. (To encourage more business interest in the
Innovation Corridor, the 2017 draft capital budget includes an investment of$175,000, subject to
Grant approval for Broadband connectivity for the Innovation Corridor to "jump start" the economic
development of these lands.) For many industry-based suppliers and partners, it is important to
relocate their facilities in close proximity to their customers' main offices. Because of this, City
economic development staff are confident that this project can serve as a catalyst that triggers the
development of the Innovation Corridor by attracting other key emerging technology-based
companies.
CORP0227-07/01 revised
RFebruary 6, 2017
Report CAO 01-17
Land Acquisition and Disposition
- Pickering Innovation Corridor Page 3
Seaton
Discussion: The Seaton employment lands are designated as prestige employment, and
consist of approximately 323 hectares (800 acres) owned by Her Majesty the Queen in Right of
Ontario, as Represented by the Minister of Infrastructure (the "Province"). This land is shown on
Attachment No. 1. This is the City's Innovation Corridor. The City's Official Plan designates this
land as being suitable for light manufacturing, assembly and processing of goods, research and
development facilities, business services, graphics and design, data and communications, offices
and ancillary retail uses. In April of 2016, the City's Economic Development Office was
approached by a large multinational manufacturing business about the opportunity to consolidate
its operations and relocate its facility to the Pickering Innovation Corridor. The proposed facility
would initially employ approximately 700 individuals, with room for future expansion and
employment of an additional approximately 800 individuals.
While the manufacturer wants to locate its facility in Pickering, its business plan does not allow for
it to purchase the necessary lands. It wants to lease the required lands and buildings, and reserve
an option to lease adjoining lands to accommodate its plans for future expansion. The portion of
the Innovation Corridor that the manufacturer wants to lease (referred to in this Report as the
"Lands") consists of approximately 11.3 hectares (28 acres), as shown in Attachment 2.
At the same time, a prominent developer has expressed interest in purchasing the Lands, and is
willing to lease the Lands to the manufacturer. The developer also wants to obtain an option to
purchase additional adjacent lands. The adjacent lands are also shown on Attachment 2. The
manufacturer and the developer cannot be identified at this time. The identity and the terms they
are negotiating constitute commercial information, the disclosure of which could significantly
prejudice their respective competitive positions and interfere with the negotiations.
Initially, City staff envisaged a transaction in which the developer would purchase the Lands from
the Province directly. Unfortunately, the Province cannot enter into direct sale negotiations with
any private corporation. However, the Province can sell the Lands to the City. The City can then
sell the Lands to a developer. This would be implemented by means of one Agreement of
Purchase and Sale ("APS") between the Province, as vendor, and the City, as purchaser, together
with a separate APS between the City, as vendor, and the developer, as purchaser. Both APSs
would be scheduled to close on the same date and would stipulate the same purchase price. The
purchase price due from the City to the Province would be funded by the City's sale to the
developer. The developer would assume all servicing cost sharing obligations associated with the
Land.
The APS between the City and the developer would be conditional on a Lease of the Lands being
signed by the manufacturer. City staff have facilitated discussion and meetings between the
manufacturer and the developer in an effort to finalize the terms of a Lease between the
developer, as landlord, and the manufacturer, as tenant. The Lease will provide for the
construction of a building on the Land to house the manufacturer's business operations. It must be
noted that until a Lease is signed between the developer and the manufacturer, the City cannot be
assured that the manufacturer will be able to operate on the Lands. By making the City's sale of
the Lands to the developer conditional on the Lease, the City preserves the right to terminate its
CORP0227-07101 revised
Report CAO 01-17 February 6, 2017
Land Acquisition and Disposition
- Pickering Innovation Corridor
Seaton Page 4
agreement to sell the Lands. In such event, the City would retain ownership of the Lands, and
could hold the Lands as an investment or sell the Lands to other employers to encourage
development in Seaton.
At present, the APSs exist only in draft form. Staff seek the direction of Council to negotiate, sign
and deliver the APSs, subject to a condition requiring further Council approval. If and when the
APSs are signed back, staff will present them to Council in a public meeting, together with a
Report setting out the details of the APSs and recommending for or against waiver of the Council
approval condition. If Council then deems fit to waive its approval condition, the APSs would
become binding obligations on the City, the developer and the manufacturer. In the interim, City
staff will continue to facilitate the ongoing negotiations between the developer and the
manufacturer regarding the terms of their Lease.
The purchase of the Lands by the City, their sale to the developer and their lease to the
manufacturer represent an extremely valuable economic development opportunity for the City. A
major manufacturing facility would provide many highly skilled jobs in Seaton, and would be a
significant step towards the job creation vision of the Central Pickering Development Plan. It
would also serve as a catalyst for future development of the City's Innovation Corridor. This is
significant for the City and also for all of Durham Region. If the manufacturer does not commence
operations on the Lands, the purchase of the Lands is still a wise step by the City. The Lands will
likely appreciate in value over time, and could be leased or sold to another employer.
Attachments:
1. Map of Pickering Innovation Corridor- Seaton Employment Lands
2. Map of Subject Lands
P - • : red By: Prepared By:
Paul \•,; •ni Stan Karwowski
Dire,to C• *orate Services & City Solicitor Director, Finance &Treasurer
Recommended for the consideration
, ,c.a, of Pickerin• City Council
--. 2. 2D17
i zJa oon I / '// /
Senior Advisor, Investment Attraction To y Prevedel, P.Eng.
Chief Administrative Officer
PB:ks •
CORP0227-07/01 revised
ATTACHMENT# 3 TO REPORT# Co40 Report t0
�-i ��1 / .of. (o of-!8� p
Council
P 1 C K E R 1 NG 002.17
Report Number: CA
Date: June 5, 2017
•
From: Tony Prevedel
Chief Administrative Officer
Subject: Land Acquisition and.Disposal
Pre-2018 Capital Budget Approval
- Pickering Innovation Corridor— Seaton
- File: D-1100
Recommendation:
1. That staff be directed to continue to negotiate the terms of: (a) an Agreement of Purchase
and Sale of approximately 28 acres of employment lands (as shown on Attachment No. 1)
within the Seaton Development Area between Ontario Infrastructure and Land Corporation
(the "Province"), as vendor, and the City, as purchaser; and (b) an Agreement of Purchase
and Sale of those lands between the City, as vendor, and a major developer, as purchaser;
2. That staff be directed to include an option within its Agreement of Purchase and Sale with
the Province to purchase the balance of the Block 6 employment lands (approximately 144
acres);
3. That staff be directed to continue supporting and facilitating the dialogue between the
developer and a multinational manufacturing business that has expressed interest in leasing
the 28 acre parcel of land, for the purpose of having the manufacturer move its business
operation to this location;
•
•
4. That staff be directed to continue their ongoing dialogue with two other multinational
manufacturing businesses and a group of investors that have expressed interest in
purchasing some of the lands for their own business operations, and that the option referred
to in Recommendation 2 above be used, subject to further Council approval, to provide lands
for those business operations;
5. That the Chief Administrative Officer be authorized to execute the above-noted Agreements
of Purchase and Sale, in forms satisfactory to the Director, Corporate Services & City
Solicitor, provided that such Agreements are conditional upon the subsequent approval of
Council;
6. That Council provide pre-2018 Capital Budget approval for land acquisition costs including
associated fees (land transfer tax & HST) as well as front ending and development servicing
costs as referenced in Recommendation 1; for a cost not to exceed $6.0 million;
7. That the Director, Finance & Treasurer be authorized to finance the land acquisition cost,
associated fees and front ending and development servicing costs in the amount of$6.0
million as follows:
CAO 02-17 June 5, 2017
Subject: Pickering Innovation Corridor— Seaton Page 2
a) that the sum of$6.0 million be financed at the discretion of the Treasurer, either
through future land sales, an internal loan or by the issue of debentures by the
Regional Municipality of Durham, for a period not to exceed 15 years at a rate to be
determined;
b) that annual repayment charges in the amount of approximately $535,000 be included
in the annual Current Budget for the City of Pickering commencing in 2018 if required,
and continuing thereafter until the debenture is repaid, and that any financing costs be
paid out of the Current Budget;
8. That Council confirm that business attraction is a top priority for Council and that staff be
directed to pursue business opportunities that include domestic and multinational
organizations and also pursue high-end manufacturers for the purpose of strengthening
Pickering's local economy and enhancing Pickering's property tax base;
9. That the appropriate City of Pickering officials be authorized to take the necessary actions as
indicated in this Report.
Executive Summary: Pickering's Innovation Corridor lies within the Seaton employment
lands, which are designated for prestige employment uses under the City's Official Plan. These
lands are shown on Attachment 1, and have been set aside for industrial/commercial office uses. .
As reported in January of this year, City staff are actively pursuing the relocation of a major
manufacturing operation to the Innovation Corridor, which could result in the creation of 700 well-
paying new jobs in Pickering, with the possibility of future expansion and 800 additional
jobs. Since February, two additional multinational manufacturers and a group of investors have
approached the City with interest in purchasing land in the Innovation Corridor. In the aggregate,
the facilities proposed by all four interested parties could generate up to 3,000 jobs.
In an effort to accommodate the various interested parties, the City needs to revise its offer to
purchase land from the Province. Adoption of the recommendations in this report will enable staff
to proceed with a revised Agreement of Purchase and Sale providing for the acquisition of a 28
acre portion of the employment lands to accommodate one of the interested manufacturers, with
an option to purchase the balance of Block 6 for the purpose of making them available on
acceptable terms to the other interested investors and manufacturers. Costs associated with the
City's purchase and ownership of the required lands will be passed on to the manufacturers,
developers and investors who ultimately buy the lands.
The manufacturers interested in acquiring land within the Innovation Corridor each plan to set up
manufacturing and assembly operations there. One of the interested investors plans to establish a
research and development business park. These are exactly the kind of high quality industrial
uses contemplated by the City's Official Plan policies. These uses will generate substantial
property tax revenues for the City. Staff expect that these uses will also serve as a catalyst for
more commercial/industrial development in Pickering.
CORP0227-07/01 revised
CAO 02-17 June 5, 2017
Subject: Pickering Innovation Corridor— Seaton Page 3
Financial Implications: The financial plan for these transactions is to have the land purchase
cost, including associated fees, recovered from future land sales. If there is an unanticipated delay
in the sale of City land, the City can finance these transactions either through internal loans or
through the issuance of a debenture. If a land sale in the Seaton Employment lands is concluded
within one year, an internal loan will be undertaken. Otherwise, long-term debt may be
considered.
Projects costs of$6.0 million include the following components: purchase price, HST; Land
Transfer Tax, Provincial Top-up payment shortfall, and front-ending and development servicing
costs. The City may incur front-ending and development servicing costs while it is still the legal
owner of these lands. This is similar to the City's position in Duffin Heights, where it is subject to
"cash calls"to help pay for its share of the Duffin Heights infrastructure. During the period of the
City's ownership of the Seaton employment lands, the City will have the legal responsibility to
meet any development-related cash calls, and the project's budget of$6.0 million has been
calculated to meet those obligations. All of the City's costs will be passed onto the end
buyers/users of the lands initially purchased by the City.
With the planned construction of an office and factory facility on the initial 28 acre parcel, the
estimated property taxes using 2017 tax rates (City share only) could be in excess of$300,000
per year. The final construction cost of the facility will be a major component in determining the
property's assessment value. In addition to the annual property taxes, the project contemplated
for the initial 28 acre parcel would also pay estimated building permit fees of$400,000 and
development charges (City share only) of$530,000. It must be noted that the building permit and
development charge fees are based on preliminary building drawings.
This project represents an important opportunity for the City as it relates to economic development
and our financial viability. There are always challenges in attracting large businesses and a
significant number of jobs to a community. This first manufacturing operation will initially employ
over 700 people. Together with the other proposed operations, as many as 3,000 new, well-
paying and highly-skilled jobs could result from the acquisition of these lands by the City.
Discussion: The Pickering Innovation Corridor lands are designated as prestige
employment, and consist of approximately 323 hectares (800 acres) owned by Her Majesty the
Queen in Right of Ontario, as Represented by the Minister of Infrastructure (the "Province"). This
land is shown on Attachment No. 1. The City's Official Plan designates this land as being suitable
for light manufacturing, assembly and processing of goods, research and development facilities,
business services, graphics and design, data and communications, offices and ancillary retail
uses.
In April of 2016, the City's Economic Development Office was approached by a large multinational
manufacturing business about the opportunity to consolidate its operations and relocate its facility
to the Pickering Innovation Corridor. The proposed facility would initially employ approximately
700 individuals, with room for future expansion and employment of approximately 800 additional
individuals. Since then, the City has been approached by two other major manufacturing firms and
CORP0227-07/01 revised
CAO 02-17 June 5, 2017
Subject: Pickering Innovation Corridor— Seaton Page 4
a group of investors, interested in acquiring some of the employment lands within the Innovation
Corridor.
The first manufacturer to approach the City wants to locate its facility in Pickering, but its business
plan does not allow for it to purchase the necessary lands. It wants to lease 28 acres of lands
(shown in red on Attachment 1), and reserve an option to lease an adjoining 50 acre parcel
(shown in blue), to accommodate its plans for future expansion. At the same time, a prominent
developer has expressed interest in purchasing those lands, and is willing to lease them to the
manufacturer. The manufacturer and the developer cannot be identified at this time. The identity
and the terms they are negotiating constitute commercial information, and disclosure could
significantly prejudice their respective competitive positions, and interfere with the negotiations.
Since the City was approached by the first manufacturer, others have expressed interest in
locating their business operations within the Innovation Corridor. Two other manufacturers now
wish to set up their operations in the Innovation Corridor, and a group of investors wants to
establish a research and development business park there. These other interested parties want to
purchase separate portions of employment lands within the Innovation Corridor. Discussions are
ongoing with them and, at present, their identity and the terms under negotiation must remain
confidential, to avoid the disclosure of commercially sensitive information.
As set out in report CAO 01-17, the Province is prepared to sell employment lands within the
Innovation Corridor to the City, who will in turn sell portions of the lands for business and
manufacturing uses. This would be implemented by means of an Agreement of Purchase and
Sale ("APS") between the Province, as vendor, and the City, as purchaser. The APS would
provide for the purchase of the initial 28 acre site together with an option to purchase the balance
of Block 6 within the Innovation Corridor. Additional agreements would be entered into by the City,
as vendor, with the interested manufacturer, developer or investor. Each of these agreements
would specify a price and terms which would fully cover the costs incurred by the City in acquiring
the lands from the Province. Furthermore, the purchasers from the City would assume all
servicing cost sharing obligations associated with the lands.
Staff seek the approval of Council to negotiate, sign and deliver the APS and the additional
agreements, which will also be subject to a condition requiring further Council approval. If and
when the various agreements are signed back, staff will present them to Council in a public
meeting, together with a Report setting out the details of the agreements and recommending for or
against waiver of the Council approval condition. If Council then deems fit to waive its approval
conditions, the agreements would become binding obligations on the City. In the interim, City staff
will continue the ongoing negotiations with the interested parties.
With respect to the City's purchase of the initial 28 acre parcel, City staff will pursue contract terms
which assure the City that the ultimate lease of the lands to a major manufacturer will be in place
prior to the City's purchase. In the event that proves impossible, it must be noted that the initial
acquisition of 28 acres is justifiable in any event, because the City can hold those lands as an
investment or sell them to other employers to encourage economic development. Regarding the
option to purchase the balance of Block 6, City staff propose to exercise the option in increments
as agreements are finalized with other manufacturers, developers and/or investors.
CORP0227-07/01 revised
CAO 02-17 June 5, 2017
Subject: Pickering Innovation Corridor— Seaton Page 5
The purchase of the lands by the City and their sale for use as manufacturing facilities represents
an extremely valuable economic development opportunity for the City. Major manufacturing
facilities in Seaton would provide many highly skilled jobs in Seaton, and would be a significant
step towards the job creation vision of the Central Pickering Development Plan. It would also
serve as a catalyst for future development of the Pickering Innovation Corridor. This.is substantial
for the City and for Durham Region as a whole.
The City has received several different types of investment enquiries related to the Innovation
Corridor, however, staff are determined to focus on sector specific manufacturers that will bring
well-paying, high-tech jobs. In April 2017, the Chief Administrative Officer and the Senior Advisor,
Investment Attraction, were invited to Nanjing, China by a consortium of companies interested in
purchasing a portion of the employment lands in Seaton for a research and development park with
a view to attracting Chinese and North American based companies to Pickering. The main
purpose of the trip was to meet with company executives, and to toUr the existing research and
development business parks within the Nanjing, China district. This trip enabled staff to confirm
that the Chinese consortium could be a high value employer in Pickering's Innovation Corridor.
Staff will continue to participate in sector specific tradeshows and international exhibits to promote
the Pickering Innovation Corridor. Many of the large manufacturers who have already approached
the City with an interest in relocating and/or expanding their operations to Seaton have connected
City staff with their supply chain of businesses, who are also looking into either expanding into the
Canadian market, and/or relocating in close proximity to their key customer base.
Senior staff have expended a great deal of time and effort in our pursuit of investment attraction.
There are many initiatives and opportunities to manage, and in order to achieve success, we will
continue to require a substantial investment of senior management time. Recommendation 8 asks
Council to support the efforts of staff in the pursuit of domestic, multi-national organizations and
high-end manufacturing and the associated costs (including domestic and international travel).
The economic benefits will be realized as we enhance the commercial and industrial tax base
increasing our financial viability.
Attachments:
1. Map of Innovation Corridor
2. Report to Council CAO 01-17 dated February 6, 2017
•
CORP0227-07/01 revised
CAO 02-17 0 June 5, 2017
Subject: Pickering Innovation Corridor Seaton Page 6-
Pre.
-Pre• - - • By: Prepared By:
41110111111.7Paul B gi:ni Stan Karwowski
Directvr, Corp,,rate Services & City Solicitor Director, Finance & Treasurer
•
Prepared By: .
FL/Liaz Jad on, Ec.D, CEcD, MPM
Senior Advisor, Investment Attraction
PB;ks
Recommended for the consideration 0
of Pickering City Council ,0,aAtt 0
00/egadi
L, (7
Tony Prevedel, P.Eng. 0
Chief Administrative Officer •
CORP0227-07!01 revised
•
•
ATTACHMENT# TO REPORT#
CA'O o
Execution Version
.of. (o
x
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS REPRESENTED BY THE
MINISTER OF INFRASTRUCTURE
as"Vendor"
and
•
i
-THE CORPORATION OF THE CITY_OF PICKERING
as"Purchaser"
•
AGREEMENT OF PURCHASE AND SALE
•
•
38997-2001 23731626.4
•
TABLE OF CONTENTS
SECTION 1 DEFINITIONS...z ° 2
SECTION 2 AGREEMENT OF PURCHASE AND SALE AND OPTION 8
SECTION 3.DEPOSIT/PAYMENT OF PURCHASE PRICE 9
SECTION 4 HARMONIZED SALES TAX 10
SECTION 5 "AS IS WHERE IS",PURCHASER'S INSPECTION PERIOD,AND
ENVIRONMENTAL INDEMNITY 10
SECTION 6 CLOSING CONDITIONS 14
SECTION 7 SALE APPROVAL 16 '
SECTION 8 CLASS EA REQUIREMENTS/ABORIGINAL CLAIMS 16
SECTION 9 RISK 19
SECTION 10 VENDOR'S WARRANTIES,REPRESENTATIONS AND COVENANTS 19
SECTION 11 PURCHASER'S WARRANTIES,REPRESENTATIONS AND COVENANTS 19
SECTION 12 SEVERANCE 20.
SECTION 13 REFERENCE PLAN 21
SECTION 14 TITLE 21
SECTION 15 NO ASSIGNMENT ETC. 22
SECTION 16 DEVELOPMENT AGREEMENTS 22
SECTION 17 PREPARATION OF TRANSFER/DEED DOCUMENTS AND FEES/COSTS 24
SECTION 18 TENDER 24
SECTION 19 ADJUSTMENTS 24
SECTION 20 ELECTRONIC REGIS 1'RATION 25
SECTION 21 CLOSING DELIVERABLES 25
SECTION 22 NOTICE 27
SECTION 23 CONFIDENTIALITY 28
SECTION24 GENERAL 29
SECTION 25 IRREVOCABLE PERIOD 30
3a997-2001 23731626.4
AGREEMENT OF PURCHASE AND SALE
BETWEEN:
•
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO
AS REPRESENTED BY THE MINISTER OF INFRASTRUCTURE
(hereinafter collectively called the f`Vendor")
OF THE FIRST PART
-and-
THE CORPORATION OF THE CITY OF PICKERING
(hereinafter called the"Purchaser")
OF THE SECOND PART
RECITALS:
A. The Vendor is the owner in fee simple of the property defined as the"Lands"in Section 1.01(vv)
of this Agreement.
13. By Order-in-Council No. 219/2015, approved and ordered February 18, 2015, all the powers and
duties of the Minister of Infrastructure under Order-in-Council No. 1376/2011 relating to infrastructure
and real property matters of the Government of Ontario were assigned and transferred to the Minister of
Economic Development, Employment and Infrastructure (now known as the "Minister of
Infrastructure"). '
C. Vendor and OILC hereby confirm that OILC is the designated agent of the Vendor.
D. 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.
E. The Purchaser has requested that the Vendor offer certain surplus lands, being the Lands,to the
Purchaser, in accordance with the terms of the Realty Directive approved by the Management Board of
Cabinet effective April 1,2013 and revised effective June 1,2015.
F. The Lands are subject to the Development Agreements, and the Purchaser has agreed to assume
the Development Agreements as they relate to the Lands.
G. • . The Lands are "Phase 1 Prestige Employment Lands" as such term is defined by the Phase 1
RFEA.
H.. The Lands are subject to the Leases, and the Purchaser has agreed to assume the Leases as they.
relate to the Lands.
I. The Purchaser has offered to purchase the Property from the Vendor on the terms and conditions
hereinafter set forth. S
38997-200123731626.4
_ j
-2-
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:
_ (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) "Assumption Agreement"means an agreement by which the Purchaser becomes a party
to a Development Agreement, Lease or Permitted Encumbrance and 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.
(Ic) "Authority" means any governmental or quasi-governmental authority, regulatory
authority, government department, agency, commission, board, tribunal, body or
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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.
(I) `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.
(m) `Business Day" means any day on which the Government of Ontario normally conducts
business.
(n) "City"means the City of Pickering.
- (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 later
of(i)the date the Purchaser waives or satisfies its condition(s)contained in Section 5 and
• Section 6.04 of this Agreement, and (ii) the date that the Vendor fulfills its condition(s)
contained in Section 6.01(a), or any extension thereof as may be expressly provided for
herein;provided however that the Closing Date can be no later than the Expiry Date,and
• if the Closing Date calculated as hereinabove is later than the Expiry Date, then the
Closing Date shall be the Expiry Date. •
•
(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.
• -4
(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 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.
(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 Prepayment?' 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 a .ents with
governmental Authorities and all otherapplicable 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. •
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(II) "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 )3.
(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.
(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 sixty (60) Business Days
following the Execution Date.
(vv) "Lands" means the land(s) described in schedule A-1 and outlined in red on the sketch
• plan attached hereto as Schedule A-2.
(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) "Leases"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 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.
(sss) "Municipality"means the municipality(or municipalities)where the Property is located.
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(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) "Option Agreement" has the meaning ascribed to it in Section 2.04
(ggg) "Option Lands " means the lands described in schedule A-1 and identified on the
sketch plan attached hereto as Schedule A-2.
(hhh) "Participation Agreement" means the Participation Agreement attached hereto as
schedule G and to be entered into between the Vendor and the Purchaser at Closing.
(iii) "Permitted Encumbrances"means, collectively,the encumbrances listed in Schedule B
and any encumbrances created under the terms of this Agreement.
(jjj) "Phase 1 RFEA"has the meaning ascribed to such term in the Seaton CSA.
•
(kkk) "Phase 1 RFEA Lands" has the meaning ascribed to such term in the Phase 1 RFEA.
(Ill) "Phase 1 Development"has the meaning ascribed to such term in the Seaton CSA.
(mmm)"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.
(nnn) "Private Landowner"has the meaning ascribed to such term in the Seaton CSA.
(000) "Private Landowner Equivalency Payment" has the meaning ascribed to it in Section
• 16.06.
(ppp) "Property"means, collectively, all of the right,title and interest of the Vendor in and to
the Lands and the Buildings.
(qqq) `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;
•
•
-7
(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 Leases;
(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.
(rrr) "Provincial Successor"has the meaning ascribed to such term in the Seaton CSA. '
(sss) "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.
(ttt) "Purchaser's Reports"has the meaning ascribed to it in Section 5.06.
(uuu) "Region"means the Regional Municipality of Durham.
(vvv) "Regional Infrastructure"has the meaning ascribed to it in the Seaton CSA.
(www) "Requisition Date"has the meaning ascribed to it in Section 14.01.
(xxx) "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. .
(yyy) "Sale Approval Date"means the,date that the.Sale Approval was granted.
(zzz) "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. .
(aaaa) "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.
(bbbb) "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.
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•
(cccc) "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.
(dddd). "Servicing Costs"has the meaning ascribed to it in Section 16.07.
(eeee) "Subsequent Phase" means development of land in the Seaton Community, the
development of which is not covered by the Phase I RFEA,and for which no allocation
of sewer or water capacity has currently be granted by any Authority.
(fffl) "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 Infrastructure 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 AND OPTION
•
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.
2.02 The Purchase Price shall be calculated by multiplying the area of the Lands in acres by a per acre
price of ONE HUNDRED THOUSAND DOLLARS ($100,000.00) per acre. It is estimated that
the area of the Lands is 28.0 acres more or less, which would result in a Purchase Price of TWO
MILLION EIGHT HUNDRED THOUSAND DOLLARS ($2,800,000.00). 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.
I
2.03 The Purchaser shall NOT be entitled to direct title of the Property to any other person or entity at
Closing.
2.04 The Vendor and the Purchaser hereby covenant and agree to execute and deliver- on Closing an
option agreement (the "Option Agreement") in the form attached hereto as Schedule I. The
Purchaser shall not be entitled to register a notice of the Option Agreement on title to the Option
Lands.
- I
•
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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,a sum equal to five.percent(5%)of the
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 forty-eight(48)hours of the Execution Date a further sum equal to five percent
(5%)of the 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. 8.46 (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 investuient 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 withall 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. V
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.
•
- 10. -
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,AM)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 warrantyof 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
- 11 -
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
- 12-
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
Ha7irdous 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 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.
- 13-
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
conditions or the presence of Ha72rdOus 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
- 14- .
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. On Closing the Purchaser agrees to deliver a Purchaser's
Environmental Indemnity and Covenant Not to Sue,in the form attached hereto as Schedule H.
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 "I". 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;
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(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 shaahave executed all documents required to assume the obligations of the
Vendor pursuant to the Development Agreements,including all required 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 6.0.1(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.
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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.
•
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
- 17-
(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").
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
- 18-
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:
•
(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:
(a5 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
_ f
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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
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.l (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,
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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.
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 Leases; (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.
11.07 On the Closing Date,the Purchaser will execute and deliver an Assignment,Assumption and
Indemnity in the Vendor's standard form accepting, assuming and indemnifying the Vendor with
respect to all such matters referred to in this Section 11.
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 todivide land referenced under the subdivision control provisions of the
Planning Act) in connection with the Transaction.
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SECTION 13
REFERENCE PLAN
13.01 The Vendor agrees, at the Purchaser's sole expense, to prepare and deposit in the appropriate
Land Registry Office, a reference plan of survey of the Lands. The Vendor shall provide the
Purchaser with a copy of the deposited reference plan on or before the Closing Date. Such costs,
including all applicable disbursements and taxes, shall be treated as an adjustment to the Purchase
Price in the Vendor's favour in accordance with Section 19 of this Agreement.
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;
(c) the Leases;
(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 notbe 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.
-22-
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 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
-23
agrees that it will abide by the terms and conditions of the Pickering FIA, and will execute any
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 I 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 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.
-24-
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 Iegal 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.
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.
•
-25-
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 Leases, whether complete or partial, the Development Agreements
and Permitted Encumbrances,as applicable;
(c) notice to the tenant(s) or licensee(s)pursuant to the Leases informing them of the sale of
the Lands and directing them 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;
-26-
(g) statement of Adjustments;
(h) Document Registration Agreement as set out in Schedule E;
(i) the Option Agreement;and
(j) 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) a certified cheque, bank draft .or 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;
(e) an undertaking to re-adjust the statement of Adjustuents, if necessary, upon written
demand;
(f) HST Declaration and Indemnity,as contemplated in Section 4,if applicable;
(g) an updated Statutory Declaration in the formset 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 Assumption Agreement for the Leases;
(k) an Assumption Agreement for each of the Development Agreements;
(I) an Assumption Agreement for the Permitted Encumbrances, as applicable;
-27-
•
(m) a Participation Agreement in form attached hereto as schedule G; •
(n) a Purchaser's Indemnity and Covenant Not to Sue in the form attached hereto as schedule
H
(o) the Option Agreement;and
(p) 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 61(7
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(r torys.com/agibbons(@torys.com
and to the Vendor at:
do Ontario Infrastructure and Lands Corporation
Sales and Acquisitions
1 Dundas Street West
Suite 2000
• Toronto,ON M5G 2L6
-28-
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'agrree 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.
-29-
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.
-30-
•
•
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 ninety (90) days from the date it is
submitted to the Vendor and open for acceptance by the Vendor during said ninety (90) day
period, subject to an extension for a further period up to sixty (60) days at the sole discretion of
the Vendor. 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 seven (7) 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]
• -31 -
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 August,2017.
THE CORPORATION OF THE CITY OF
PICKERING
AO /
r
By: =
N e:r � , t r ti
Title: C t\(GO n't•(At s t'ie
icer-
By:
Name: -
Title:
•
1/We have authority to bind the
• Corporation
•
ACCEPTED BY the Vendor this t Lay of Sept , 2017.
HER MAJESTY THE QUEEN IN RIGHT
OF ONTARIO as represented by
THE MINISTER OF INFRASTRUCTURE as
represented s y
ONT• '. 0 ICTURE AND
AND.� � . : � io
By: :r• ail:
Title (4.1...14-.4-41.0.4-i 11E11°,16-,
e,i-rx t C►Lt`hS‹.--{
-32- '
By:
Name:
Title:
Authorizing Signing Officer
SCHEDULE A-1
LEGAL DESCRIPTION OF LANDS
PART OF LOTS 23 AND 24 CONCESSION 5; CITY OF PICKERING,being Part of PIN 26402-
0077(LT)
APS Template—Seaton—Bundle.6
I
•
I
SCHEDULE A-2
LANDS
1 \\IN ,b--,-0-\.1
1
i
)
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t I • :,- —
/ / r \ s
A
vAY ere
Lands to be Optioned -__4,;2 r• ;.,
1 58.3 Ha 1 t,:. , t;'-,1 •' .
Legend
Sub ect Lands(69,6 Ha) Lands to be Purchased/Leased I ,n:til
1 4
Location Map
_.--cc�.j----- File:Seaton Employment Lands
PICKERING Applicant
Property Description:
City Development .Dale:Feb.01.2017
Department __...-...r—.=.___ .Baa:F u000 i rwan
1
I
• 1
•
•
•
SCHEDULE B
PERMITTED ENCUMBRANCES
(a) General Encumbrances:
(i) the Leases, 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 Leases,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:
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.]
•
SCHEDULE D
STATUTORY DECLARATION
Canada ) IN THE MATTER OF THE TITLE TO<>
)
Province of Ontario )
} •
) AND IN THE MATTER OF A SALE THEREOF from HER
) MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS
) REPRESENTED BY THE MINISTER OF
) INFRASTRUCTURE(the"Vendor")to THE
) CORPORATION OF THE CITY OF PICKERING(the
) "Purchaser")
TO WIT: • )
)
) •
)
I, ,of the , in the Province of Ontario,
DO SOLEMNLY DECLARE,that:
1. I.am the {title} of the Purchaser and as such have knowledge of the
matters hereinafter declared.
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) 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. )
•
•
•
•
•
•
' I
.
•
•
SCHEDULE E
DOCUMENT REGISTRATION AGREEMENT
DOCUMENT REGISTRATION AGREEMENT
BETWEEN:•
O
(hereinafter referred to as the"Vendor's Solicitor")
•
- AND:
•
(hereinafter referred to as the"Purchaser's Solicitor")
RE: Her Majesty the Queen in right of Ontario as represented by the Minister of Infrastructure(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's),Scheduled
to be completed on O(the"Closing Date")
•
FOR GOOD AND VALUABLE CONSIDERATION(the receipt and
sufficiency of which is hereby expressly acknowledged),the parties hereto hereby
• undertake and agree as follows:
Holding Deliveries 1. The Vendor's Solicitor and the Purchaser's Solicitor shall hold all funds,keys and closing
In Escrow 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
Advising of
Concerns with their respective receipt of the Requisite Deliveries (as applicable) of any defect(s) with respect to•
Deliveries same.
•
•
'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.
Selecting-Solicitor 3. The Purchaser's Solicitor shall be responsible for the registration of the Electronic
Responsible for Documents(as hereinafter defined)unless the box set out below indicating that the Vendor's
Registration 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
Responsibility of ` 4. The Non-Registering Solicitor shall,upon his/her receipt and approval of the Requisite
Non-Registering Deliveries(as applicable),electronically release for registration the Electronic Documents and shall
Solicitor
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.mJp.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.
Responsibility of 5. The Registering Solicitor shall,subject to paragraph 7 below,on the Closing Date,
Registering following his/her receipt and approval of the Requisite Deliveries(as applicable),register the
Solicitor 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).
Release of Requisite 6 Upon registration of the Electronic Documents and notification of the Non-Registering
Deliveries by Non- solicitor in accordance with paragraph 5 above,the Non-Registering Solicitor shall be entitled to
Registering solicitor forthwith release the Requisite Deliveries from escrow.
Returning 7. Any of the parties hereto may notify the other party that he/she does not wish to proceed
Deliveries where with the registration of the Electronic Documents,and provided that such notice is received by the
Nan-registration 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 g,• 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.
•
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.
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 or if
ConflictAgreement,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
&Providing
Originalsall such documents have been properly executed by the appropriate parties. The party transmitting
if
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 Z,201 . Dated this day of 3,201
Name/Firm Name of Vendor's Solicitor Name/Firm Name of Purchaser's Solicitor
•(Signature) (Signature)
Note: Thisversion of the Document Registration Agreement was adopted hy 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 o to o.
SCHEDULE F
ACKNOWLEDGEMENT AND INDEMNITY
The Purchaser hereby acknowledges that all representations, warranties and covenants
provided for in Section 11 of the Agreement of Purchase and Sale executed on the of
20 , shall survive closing for a period of two (2) years and further agrees to indemnify
the Vendor and its successors, administrators, .permitted assigns, directors, officers,
employees, agents, servants, representatives, appointees and all others for whom the Vendor
is responsible in law, from and against all such loss, damage, or injury and all actions, suits,
proceedings, costs, charges, damages, expenses, claims; or demands arising therefrom or
connected therewith.
Date:
Witness: )
).
)
)
))
)
Name: ) Name:
) Position:,
) Title:
- I
- SCEDULE G
• PARTICIPATION AGREEMENT
38997-200123731639.3 -
I
-2-
BETWEEN:
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS REPRESENTED BY
THE MINISTER OF INFRASTRUCTURE
-and-
111/.,CORPORATION OF.THE CITY OF PICKERING
RECITALS:
A. Her Majesty the Queen in Right of Ontario, as represented by the Minister of
Infrastructure (the "Owner") is the owner irr fee simple of the land described at in
Schedule"A"0 to this Agreement(the"Property").
B. The Owner and Ontario Infrastructure and Lands Corporation("OILC") confirm that
OILC is the designated agent of the Owner and has the authority to exercise all rights
of the Minister of Infrastructure pursuant to sections 7 and 9 of the Ministry of
Infrastructure Act, S.O. 2011, c. 9, Sched 27, and the express written delegation from
the Owner, dated June.6, 2011, and that both the Owner and OILC are and shall be
bound by all the Vendor's covenants, representations and warranties as provided
herein.
C. The Corporation of the City of Pickering (the"City") is the proposed transferee of the
Property.
NOW THEREFORE in consideration of the mutual covenants hereinafter set forth, the
transfer of the Property from OILC to the City and other good and valuable consideration,the
parties hereto agree as follows:
Definitions:
"Base Amount" means [NTD—insert.Purchase Price to be paid by the City].
"Profit"means the amount by which the Sale Price exceeds the Base Amount.
"Sale Price" means the value, in lawful money of Canada, of all consideration and
benefit paid or agreed to be paid for the Property by a bona fide purchaser dealing at
arm's length with the City, including the value of any encumbrances or mortgages
assumed by the purchaser or taken back as part of the consideration for such sale
transaction, less the aggregate of the following:
38997-2001 23731639.3
- 3'
(a) the:cumulative total of any and all capital
improvements to the Property (as determined in
accordance with generally accepted accounting
principles) made to the Property from and after
the Date of Closing;
(b) any real estate commission payable by the City
in disposing of the Property to such a bona fide
purchaser in an amount not to exceed the then
current industry practice;.and
(c) reasonable transaction expenses, including, but
not limited to, all marketing expenses, all taxes
paid by the City with respect to the Property
which have not been recovered in full by the
City prior to the subsequent sale (including,but
not limited to, land transfer tax paid by the
City), legal and accounting fees payable by the
City in disposing of the Property.
"Term" means the period commencing on the Closing Date and expiring on the
earlier of(i) the date which is five (5) years following the Closing Date; and (ii) the
date on which title to the Property is transferred to a bona fide purchaser dealing at
arm's length with the City.
(1) It is the express intention of OILC and the City that that there shall be no speculation
with respect to all or any portion of the Property during the Term. In the event of a
bona fide arm's length sale of all or any portion of the Property by the City at any
time during the Term then 100% of any Profit (as defined below) shall be paid to
OILC and the amount of such Profit shall be a charge on the Property in favour of
OILC until paid. Should the City enter into an agreement to sell the Property during
the Term it shall give OILC written notice of same as soon as reasonably possible
after such agreement is entered into.
(2) Within 30 days following the Closing Date, the City will register in the appropriate
land registry office, a Notice of this Participation Agreement on title to the Lands.
(3) Any notice under this Agreement is sufficiently given if delivered personally orif
sent by ordinary mail or prepaid courier or electronic facsimile machine to the
addresses as follows:
Address of the City:
The Corporation of the City of Pickering
One The Esplanade
38997-2001 23731639.3
-4
Pickering
Ontario, L1V 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@torys.com/agibbons@torys.com
and to OILC at: '
c/o Ontario Infrastructure and Lands Corporation •
Sales&Acquisitions
1 Dundas Street West, Suite 2000
Toronto, Ontario M5G lL5
Attention:Vice President, Sales and Acquisitions
Facsimile: (416) 327-3942
and to OILC's Legal Counsel at:
Attention: General Counsel and Corporate Secretary
Facsimile: (416).327-2760
or at such other addresses as OILC or the City 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, 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.
(4) The City acknowledges that the provisions of this Agreement run with title to the Property,
and the City covenants not to sell, transfer or otherwise alienate the Property or any
part thereof to any affiliated entity unless such transferee agrees to be bound by the
terms of this Agreement.
38997-2001 2373'1639.3
_6_
(5) OILC agrees that if the City sells the Property to a bona fide purchaser for value
during the Term(a"Sale"),then OILC will discharge the notice of this Agreement
from title to the Property within seven(7) days of either(i)receipt by OILC of any
Profit pursuant to Section(1)hereof; or(ii)the date of Sale in the event that no Profit
is owing to OILC.
(6) This Agreement may be executed and delivered in counterparts and any such
counterpart may be delivered in its original form or by facsimile or other electronic
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.
(7) This Agreement shall be construed and enforced in accordance with the laws of the
Province of Ontario and the laws of Canada applicable thereto and shall be treated in
all respects as an Ontario contract.
(8) This Agreement shall be binding upon, and endure to the benefit of,OILC and the
City and their respective successors and permitted assigns.
•
DATED this day of , 2017.
THE CORPORATION OF i`HE. CITY OF PICKERING ,
• Per: •
• Name:
Title:
Per:
Name:
Title:
I/We have the authority to bind the Corporation
DATED this day of ,2017.
ONTARIO INFRASTRUCTURE AND LANDS
CORPORATION acting as agent on behalf of
HER MAJESTY LEM QUEEN IN RIGHT OF ONTARIO AS
REPRESENTED BY THE MINISTER OF
INFRASTRUCTURE
Per:
Name:
Title:
38997-2001 237316393
- 6 -
•
•
Per: '
• Name: •
Title:
UWe have the authority to bind the Corporation
•
•
•
•
•
•
•
38997-2002 23733639.3
- 7
Schedule"A"
•
•
38997:2001 23731639.3
•
- 8-
SCNA:DULE H -
PURCHASER'S ENVIRONMENTAL INDEMNITY AND COVENANT NOT TO SUE
TO: Her Majesty the Queen in right of Ontario as represented by the Minister Infrastructure(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 Iegally
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 IO Accepted Offer>>,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, 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.
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
38997-2001 23731639.3
- 9 -
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.
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:
Name: <<Individual Signing Documents for
Corporation
Title:<<Title>>
Per:
Name: <<Individual Signing Documents for
Corporation, if there is a second person>>
Title: <<Title>>
I We have the authority to bind the Corporation.
•
38997-2001 23731639.3
•
SCHEDULE I
• FORM OF OPTION AGREEMENT
See attached. •
•
•
•
•
•
•
38997-2001 23731639.3
•
•
•
OPTION AGREEMENT
This Option Agreement(this"Agreement") dated ,2017(the"Effective
Date")between Her Majesty the Queen in Right of Ontario as represented by the(the
"Grantee").
RECITALS:
A. Grantor and OILC hereby confirm that OILC is the designated agent of the
Grantor.
B. The Grantee has agreed,pursuant to the terms of an agreement of purchase
and sale between the Grantor and the Grantee dated the day of
• ,2017(the"APS"), to acquire all of the right, title and interest
of the Grantor in certain real property comprising 28 acres of land more or less
(the"Real Property Acquisition").
C. In order to induce the parties to enter the APS: (i)the Grantor has agreed to
grant to the Grantee an irrevocable option to purchase one or more Option
Parcels pursuant to the terms and conditions of this Agreement.
D. The Grantor owns the Option Parcels.
E. , It is a condition of the Real Property Acquisition that the parties hereto enter
into, among other documents,this Agreement.
F. This Agreement contemplates a transaction or a series of transactions in which
the Grantee shall have an irrevocable right but not an obligation to purchase,
and upon the exercise of the option contemplated herein,the Grantor shall
have the obligation to sell one or more of the Option Parcels at the Exercise
Price for each such Option Parcel,subject to the terms and conditions set forth
herein.
NOW THEREFORE in consideration of the foregoing premises and other good and
valuable consideration(the receipt and sufficiency of which is hereby acknowledged) the
parties hereto agree as follows:
1) INTERPRETATION
a) Defined Terms.
i) "APS" has the meaning given to such term at Recital A hereof.
ii) "Buildings" means all plants,buildings, structures, erections, improvements
and appurtenances situate on the Lands.
•
•
38997-200123731639.3
iii) "Business Day"means any day of the year,other than a Saturday,Sunday or
any day on which major banks are closed for business in Toronto,Ontario.
iv) "Exercise Date"means the date upon which the Grantor delivers an Exercise
Notice for any one or more of the Option Parcels.
v) "Exercise Notice"has the meaning given to such term at Section 3)a).
vi) "Exercise Price"has the meaning given to such term at Section 2)c).
vii) "Governmental Entity"means:(i) any international,multinational,national,
federal, provincial, state,county,municipal,local or other governmental or
public department,central bank,court,minister,governor-in-council,
cabinet,commission,board,bureau, agency,commissioner,tribunal or
instrumentality, domestic or foreign,(ii) any subdivision or authority of any •
of the above, (iii)any stock exchange or(iv)any quasi-governmental or
private body exercising any regulatory,expropriation or taxing authority
under or for the account of any of the above.
viii) "Law(s)" means any and all applicable: (i)laws,constitutions, treaties,
statutes,codes,ordinances, orders,decrees,rules,regulations and by-laws;
and(ii)judgments,orders,writs,injunctions, decisions,awards and
directives of any Governmental Entity.
ix) "OILC"means Ontario Infrastructure and Lands Corporation.•
x) "Open Data" means data that is required to be released to the public
pursuant to the Open Data Directive.
xi) "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.
xii) "Option'.has the meaning given to such term at Section 2)a).
xiii) "Option Parcels" means each of the separate parcels of land shown in the
sketch attached as Schedule"A", and an"Option Parcel" is any one of the
• Option Parcels.
xiv) "Option Term" means the period of time during which the Grantee may •
exercise the Option, and commences on the Effective Date and ends on May
31,2018.
xv) "Person" means a natural person,partnership,limited partnership,limited
liability partnership,corporation,limited liability company,unlimited
• liability company,joint stock company,trust,unincorporated association,
joint venture or other entity or Governmental Entity, and pronouns have a
similarly extended meaning.
38997-2001 23731639.3
•
xvi) "Real Property"means,collectively,the Lands and any Buildings situated
thereon.
xvii) "Real Property Acquisition"has the meaning given to such term at Recital B
hereof. a -
b) -Gender and Number.
Any reference in this Agreement to gender includes all genders.Words impoitiug
• the singular number only shall include the plural and vice versa.
c) Headings,etc.
The division of this Agreement into Articles and Sections and the insertion of
headings are for convenience of reference only and are not to affect its
interpretation.Unless otherwise specified, the words"Article" and"Section"
followed by a number mean and refer to the specified Article or Section of this
Agreement.
d) Currency.
All references in this Agreement to dollars or to$are expressed in Canadian
currency unless otherwise specifically indicated.
e) Certain Phrases,etc. -
: In this Agreement(i) the words"including", "includes" and "include"mean
"including(or includes or include) without limitation", and (ii)the phrase"the
aggregate of', "the total of', "the sum of',or a phrase of similar meaning means
"the aggregate(or total or sum),without duplication, of'.In the computation of
periods of time from a specified date to a later specified date,unless otherwise
expressly stated,the word"from"means"from and including"and the words"to"
and"until"each mean"to but excluding".
f) Recitals
The Recitals on page 1 o this Option Agreement are true and accurate and form a
•
part hereof.
g) Schedules and Exhibits. -
The Schedules and Exhibits attached to this Agreement form an integral part of
.this Agreement for all purposes of it.
h) References to Persons.
Any reference in,this Agreement to a Person includes its heirs, administrators,
executors, legal representatives, successors (including successors by
- amalgamation) and permitted assigns.
38997-2001 23731639.3
i) Statutes.
Except as otherwise provided in this Agreement,any reference in this Agreement
to a statute refers to such statute and all rules and regulations made under it,as it
or they may have been or may from time to time be amended,re-enacted or
replaced.
j) Non-Business Days.
_ Whenever payments are to be made or an action is to be taken on a day which is
not a Business Day,such payment will be made or such action will be taken on or
not later than the next succeeding Business Day.
2) GRANT OF OPTION
a) Grant of Option. The Grantor hereby grants to the Grantee an irrevocable option
to purchase (the"Option") any one or more of the Option Parcels, and upon
exercise of the Option,the Grantee and the Grantor shall have the obligation to
promptly enter into an agreement of purchase and.sale(each such agreement
being, a"Subsequent Purchase Agreement")substantially in the form of the APS,
mutatis mutandis, with such other modifications,changes, and inclusion of
information as agreed to by the parties hereto acting reasonably and in good faith.
b) Option Term. The Option shall be open for exercise pursuant to the terms hereof
at any time and from time to time, during the Option Term. For greater certainty,
should the Grantee exercise an Option for an Option Parcel, or some Option
Parcels but not all Option Parcels,the Option shall remain open during the
Option Term for the remaining Option Parcels during the Option Term.
c) Exercise Price. The purchase price for any Option Parcel or Option Parcels
pursuant to an Exercise Notice(the"Exercise Price") shall be determined by the
-Grantor and the Grantee acting reasonably within 20 Business Days of the
Exercise Date for an Exercise Notice.If the Grantor and Grantee are not able to
•
agree on a purchase price for an Option Parcel or Option Parcels then the Exercise
Notice delivered with regards to such Option Parcel or Option Parcels shall be
deemed to be void.
d) Extension of Option Term. The Grantee may give a notice in writing to the
Grantor that it wishes to extend the Option Term,provided that such notice is
delivered within the 60 day period prior to the expiry of the Option Term. If the •
Grantee delivers such notice within such 60 day time period then the Option
Term shall be extended for further six months to November 30,2018.
3) EXERCISE OF OPTION
38997-2001 23731639.3
a) Exercise Procedure. The Grantee may exercise the Option by giving written
notice thereof to the Grantor(the "Exercise Notice") at any time during the
Option Term.The Exercise Notice shall be delivered to the Grantor's address as
• included herein as amended from time to time,which Exercise Notice will(a)
clearly identify which of the Option Parcels the Grantee intends to purchase
pursuant to the terms hereof and the Grantee's proposed Exercise Price;and (b)
contain a form of Subsequent Purchase Agreement(together with a blackline
showing all changes made against the form of APS)for review by the Grantor.
b) Subsequent Purchase Agreement Execution. As promptly as practicable after
the Exercise Date for any Option Parcel or Option Parcels,the Grantor-and the
Grantee shall executea Subsequent Purchase Agreement,but in no event later
than 30 days after the date that the Grantor and the Grantee agree upon an
Exercise Price pursuant to Section 2)c),or such other time as the Grantee and
Grantor shall mutually agree. •
c) Negotiation of the Subsequent Purchase Agreement. The parties hereto agree to
diligently and in good faith work to finalize any Subsequent Purchase Agreement,
including all schedules thereto,within the period specified at Section 3)b)hereof.
d) Subsequent Purchase Agreement Closing. The closing of a transaction
contemplated by a Subsequent Purchase Agreement shall be held at a time and at
a place as defined by such Subsequent Purchase Agreement(a"Subsequent
Closing").
4) CONDITIONS PRECEDENT
a) The Grantor shall be required to sell the Option Parcels to the Grantee to the
extent each of the following conditions precedent have been satisfied,or waived
by the Grantor,prior to the date of a Subsequent Closing:
(i) Approvals:The Grantor shall have obtained all required approvals
to transfer the Option Parcel or Option Parcels for which an
Exercise Notice was delivered;and
•
(ii) Compliance:The Grantee shall have complied with all material
covenants set forth in this Agreement.
5) COVENANTS AND APPROVALS
a) During the Option Term and through to a Subsequent Closing,the Grantor shall:
(i) have all rights, duties and obligations with respect to the Option
Parcels;
(ii) not sell, transfer or otherwise dispose of, the Option Parcels; and
38997-2001 23731639.3
(iii) not grant any easements,rights-of-way,options to purchase,
options to lease,leases,mortgages, charges or other encumbrances
with respect to the Option Parcels.
6) FIPPA and OPEN DATA DIRECTIVE
a) The Grantor and the Grantee agree to take all necessary precautions to maintain
the confidentiality of the terms and conditions contained herein. The Grantee
acknowledges that this Agreement and any information or documents that are
provided to the Grantor may be released pursuant to the provisions of the
Freedom of Information and Protection of Privacy Act,R.S.O.1990, c.F.31,as amended
or 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.
7) ADDITIONAL PROVISIONS
a) Transaction Costs. Each of the Grantee and the Grantor shall pay all of its own
costs and expenses(including legal fees and accountants' fees and other
accounting costs and expenses)incurred in connection with this Agreement.
b) Entire Agreement. This Agreement and the APS represent the entire
understanding and agreement among the parties hereto with respect to the
subject matter hereof and supersede all other negotiations,understandings and
representations(if any)made by and among such parties.
c) Amendments. The provisions of this Agreement may not be amended,
supplemented,waived or changed orally,but only by a writing signed by each of
the parties hereto.
d) Assignments. No party hereto shall assign its rights and/or obligations
hereunder without the prior written consent of the other parties hereto.
e) Registration. The Grantee shall not be entitled to register this Agreement against
title to the Option Parcels.
f) Binding Effect. All of the terms and provisions of this Agreement,whether so
expressed or not, shall be binding upon,inure to the benefit of and be
enforceable by the parties hereto and their respective heirs, administrators,
executors, successors and permitted assigns(as the case may be).
g) Further Assurances. All parties hereto will use all reasonable efforts to take or
cause to be taken all action and to do or cause to be done all things necessary,
proper or advisable to consummate and make effective this Agreement and shall
38997-2001 23731639.3
M I
from time to time execute and deliver all such further documents and
instruments and give such further assurances as may be necessary or appropriate
in connection with performing its obligations under this Agreement.
h) Headings. The headings contained in this Agreement are for convenience of
reference only, are not to be considered a part hereof and shall not limit or
otherwise affect in any way the meaning or interpretation of this Agreement.
Notices. All notices,requests,consents and other communications required or
permitted under this Agreement shall be in writing and shall be(as elected by
the person giving such notice): (i)hand delivered by messenger or courier
service,(ii) delivered by express courier service(e.g., express post), (iii)mailed
by registered mail,return receipt requested, addressed as follows, with in each
case a scanned pdf copy to be emailed:
The Corporation of the City of Pickering
One The Esplanade
Pickering, Ontario,L1V 6K7
Attention: Paul Bigioni,Director,Corporate Services and City Solicitor
Telephone: (905)420-4660 ext.2048
Email:. pbigioni@pickeriing.ca
and to the Grantee'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@torvs.com /agibbons@torys.com
and to the Grantor at:
c/o Ontario Infrastructure and Lands Corporation
Sales and Acquisitions
1 Dundas Street West,Suite 2000 .
Toronto,ON IMG 2L6 .
Attention: Vice President,Sales and Acquisitions
Facsimile: 416-327-3942 ,
and:
Attention: Director,Legal Services (Real Estate and Leasing)
38997-2001 23731639.3
777 Bay Street,Suite 900
Toronto,ON M5G 2C8
Facsimile: 416-326-2854
j) Time of the Essence. Time is of the essence in this Agreement.
k) Governing Law. This Agreement is governed by and will be interpreted and
construed in accordance with the laws of the Province of Ontario and the federal
laws of Canada applicable therein.
1) Counterparts. This Agreement may be executed in any number of counterparts,
each of which is deemed to be an original, and such counterparts together
constitute one and the same instrument.Transmission of an executed signature
page by facsimile,email or other electronic means is as effective as a manually
executed counterpart of this Agreement.
[Remainder of page intentionally left blank.Signature pages follow.]
•
38997-2001 237316393
•
IN WITNESS.WHEREOF, the parties have caused this Agreement to be duly executed by their '
representatives thereunto duly authorized as of the day and year first above written.
THE CORPORATION OF THE CITY OF HER MAJESTY THE QUEEN IN
PICKERING RIGHT OF ONTARIO as represented
by THE MINISTER OF
INFRASTRUCTURE as represented by
ONTARIO INFRASTRUCTURE AND
LANDS CORPORATION
By: By:
Name: Name:
Title: Title:
Name: Name:
Title: Title:
I/we have the authority to bind. " I/we have the authority to bind.
•
•
38997-2001 23731639.3
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