HomeMy WebLinkAboutLEG 09-22Report to Council
Report Number: LEG 09-22
Date: March 28, 2022
From: Paul Bigioni
Director, Corporate Services & City Solicitor
Subject: Purchase of Land for the Construction of 401 Overpass
- The Corporation of the City of Pickering Purchase from Metropia (Notion
Road) Development Inc. - 1865 Pickering Parkway
-File: L-4610-008-20
Recommendation:
1.That Council approve the acquisition of Part of Lot 17, Concession 1, Pickering, being
Part 1, Plan 40R29897 subject to an easement in favour of Lots 17 & 18, Concession 1,
Pickering, as in DR1619827 City of Pickering, municipally known as 1865 Pickering
Parkway, Pickering, Ontario;
2.That the Chief Administrative Officer be authorized to execute the Agreement of
Purchase and Sale between The Corporation of the City of Pickering, as purchaser, and
Metropia (Notion Road) Development Inc., as vendor, set out in Attachment No. 1,
subject to such minor revisions as are satisfactory to the Chief Administrative Officer and
the Director, Corporate Services & City Solicitor;
3.That the Director, Corporate Services & City Solicitor be authorized to waive any
conditions contained within the said Agreement of Purchase and Sale, and to execute on
the City’s behalf any documents, instruments, transfers and agreements as may be
necessary to complete the transaction;
4.That Council authorize the purchase in the amount of $10,934,876.00 (net of HST), and
that the Director, Finance & Treasurer be authorized to fund the total net purchase cost
as follows:
(a)the sum of $4,373,950.00 to be financed by the issue of a debenture by The
Regional Municipality of Durham over a period not to exceed 20 years;
(b)the annual debenture repayment charges in the amount of approximately
$293,998.00 to be included in the annual Current Budget for the City of Pickering
commencing 2022, or such subsequent year in which the debenture is issued, and
continuing thereafter until the debenture financing is repaid;
(c)the Director, Finance & Treasurer to be authorized to make any changes,
adjustments and revisions to amounts, terms, conditions, or to take any actions
necessary in order to effect the foregoing; and
(d)The remaining sum of $4,976,232.00 to be funded from the Development Charges
Reserve Fund - Transportation;
LEG 09-22 March 28, 2022
Subject: Purchase of Land for the Construction of 401 Overpass Page 2
(e)The sum of $1,584,694.00 to be funded by a 1-year internal loan;
5.That the draft debenture by-law attached to this report be enacted; and,
6.That appropriate City of Pickering officials be authorized to take the actions necessary to
implement the recommendations in this report.
Executive Summary: This report seeks Council approval to acquire Part of Lot 17,
Concession 1, Pickering, being Part 1, Plan 40R29897 subject to an easement in favour of
Lots 17 & 18, Concession 1, Pickering, as in DR1619827 City of Pickering, municipally known
as 1865 Pickering Parkway, Pickering, Ontario. The proposed land acquisition is required to
enable construction of the Squires Beach Road Overpass project (the “Overpass”). The
location of the property is shown on the location map in Attachment No. 2.
Financial Implications: The cost of the proposed purchase is $10,700,000.00 plus HST
and Land Transfer Tax. The closing date is set out in the Agreement of Purchase and Sale and
can be amended as required by mutual agreement of the parties. Further details about the
purchase price and associated costs are outlined below.
1.Proposed Amount
Land Purchase $10,700,000.00
HST (13%) 1,391,000.00
Total Land Purchase $12,091,000.00
2.Estimated Purchase Costs
Land Purchase Price $10,700,00.00
Land Transfer Tax 35,750.00
Miscellaneous Closing Costs 10,000.00
Total Cost $10,745,750.00
HST (13%) 1,396,948.00
Total Gross Purchase Cost $12,142,698.00
HST Rebate (11.24%) (1,207,822.00)
Total Net Project Costs $10,934,876.00
LEG 09-22 March 28, 2022
Subject: Purchase of Land for the Construction of 401 Overpass Page 3
3.Approved Source of Funds
Expenditure Account Required
504000.C10575.2004
504000.C10575.2004
504000.C10575.2004
504000.C10575.2004
Source of Funds
Development Charges
Reserve Fund – Transportation
0.00
$4,976,232.00
Total Funds $15,000,000.00 $10,934,876.00
Net project costs under (over) approved funds $4,065,124.00
The Internal Loan component is related to the “Post Period Benefit” that was part of the old
Development Charges Background Study. With City staff currently undertaking a new
Development Background Study, it is anticipated that the “Post Period Benefit” amount funded
by the Internal Loan will be reduced with the residual amount being funded by Development
Charges.
Discussion: Construction of a Highway 401 overpass connecting Notion Road
with Squires Beach Road is proposed in accordance with Part 2, Chapter 4 – Transportation in
the City’s Official Plan (Squires Beach Overpass). Once construction is complete, the
Overpass will link Notion Road with Squires Beach Road for vehicles, pedestrians and cyclists.
The Squires Beach Overpass also accommodates additional traffic anticipated from the
development of a Major Tourist Destination (Pickering Casino Resort) pursuant to By-law No.
7404/15 passed on January 19, 2015.
Through preliminary design, it was determined that construction of the Overpass requires the
acquisition of land at 1865 Pickering Parkway. While the City can initiate proceedings under
the Expropriations Act (Ontario) to acquire the land, the preferred (and more efficient)
approach is to negotiate the purchase with the property owner. The City has entered into
discussions with the property owner to acquire 2.07 acres of the site fronting Notion Road. The
2.07 acre parcel is required to accommodate the Overpass. In accordance with the City’s
acquisition and disposal of land policy, an independent certified property appraiser was
engaged to provide a market value appraisal to support the negotiations. The purchase price is
consistent with appraised value.
Debt – 20 year
Third Party Reserve Fund
Internal Loan – 2 year
Budget
$6,825,000.00
6,000,000.00
2,175,000.00
0.00
1,584,694.00
4,373,950.00
LEG 09-22 March 28, 2022
Subject: Purchase of Land for the Construction of 401 Overpass Page 4
Attachments:
1.Agreement of Purchase and Sale
2.Location Map – 1865 Pickering Parkway, Pickering
3.Draft Debenture By-law
Prepared By: Approved/Endorsed By:
Adnan Naeem, B.A. (Hons.), L.L.B. Paul Bigioni
Assistant Solicitor Director, Corporate Services & City Solicitor
Approved/Endorsed By:
Stan Karwowski, MBA, CPA, CMA
Director, Finance & Treasurer
AN:PB:ks
Recommended for the consideration
of Pickering City Council
Marisa Carpino, M.A.
Chief Administrative Officer
Original Signed By:Original Signed By:
Original Signed By:
Original Signed By:
Attachment #1 to Report LEG 09-22
AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT made as of date of , 2022.
B E T W E E N :
THE CORPORATION OF THE CITY OF PICKERING
(hereinafter called the “Purchaser”)
OF THE FIRST PART
-and -
METROPIA (NOTION ROAD) DEVELOPMENT INC.
(hereinafter called the “Vendor”)
OF THE SECOND PART
RECITALS
WHEREAS:
A. An environmental assessment has been undertaken (the “Environmental Assessment”)
with respect to a proposed overpass connecting the public highways known as Notion
Road and Squires Beach Road, in the City of Pickering (the “Notion Road Overpass”);
B. In connection with this Environmental Assessment, the Purchaser determined that it
wishes to acquire the fee simple title to approximately 2.07 acres of land out of the
landholdings owned by the Vendor municipally described as 1842-1856 Notion Road and
described as Part 1 on the draft reference plan attached as Schedule “A” of this Agreement
(the “Lands”) for the Notion Road Overpass;
C. Once the Lands are conveyed, the Purchaser intends to commence the process to allow
for construction and formally establishing the Lands as part of the Notion Road Overpass;
D. The Purchaser and Vendor (collectively, the “Parties”) entered into a Letter of Intent
dated November 15th 2019 containing pertinent terms and conditions to be adhered to with
respect to a conveyance of the Lands (the “Letter of Intent”);
E. The Purchaser and Vendor wish to enter into this Agreement of Purchase and Sale (the
“Agreement”) as consistent with the terms of the Letter of Intent and the subsequent
negotiation between the Parties.
IN CONSIDERATION of the mutual covenants contained in this Agreement, the parties hereto
agree to and with each other as follows:
1. The recitals herein are true and accurate and form part of this Agreement.
2. The Schedules attached hereto form part of this Agreement.
3. In this Agreement, the following terms shall have the following meaning:
(a) “Adjustments” means, without restricting the generality thereof, all matters usually
adjusted in similar transactions but shall exclude property taxes as the Purchaser
is exempt from any obligation to remit property taxes;
(b) “Agreement” means this agreement together with all schedules and dated as of
the introductory section of the first page of this Agreement made between the
Vendor and the Purchaser;
(c) “Agreement Authorization Date” means the date that City Council authorized
the entering into of an agreement with respect to the purchase of the Lands, being
January 24, 2022;
(d) “Appraisal” means the appraisal report prepared by CBRE Valuation & Advisory
Services for the Lands with an effective date of February 28, 2020, and prepared
in accordance with Canadian Uniform Standards of Professional Appraisal
Practice as established by the Appraisal Institute of Canada;
(e) “Authority” means any governmental authority, body, agency, department,
whether federal, provincial or municipal and any board of fire underwriters having,
on Closing, jurisdiction over the Lands;
(f) “Business Day” means any day except Saturday, Sunday or any statutory holiday;
(g) “City” means the City of Pickering;
(h) “Closing” means the completion of the sale and purchase of the Lands
contemplated herein by the delivery and registration, as applicable, of the
documents and items to be delivered and payment of the balance of the Purchase
Price as herein provided;
(i) “Closing Date”, “Date of Closing” and “Time of Closing” means the day and time
referred to in Section 17 of this Agreement;
(j) “Council” means the Council of the City of Pickering;
(k) “Environmental Assessment Act” means the Environmental Assessment Act,
R.S.O. 1990, c. E.18, as amended;
(l) “Environmental Assessment” means the Environmental Assessment completed
under the Environmental Assessment Act dated October 16, 2019 with respect to
the Notion Road Overpass;
(m) “Environmental Laws” means all present and future Applicable Laws, standards
and requirements pertaining to’ environmental or occupational health and safety
matters, including without limitation, those pertaining to reporting, licensing,
permitting, investigation, disposal, storage, use, remediation and cleanup of a
Hazardous Substance or the presence or release of same;
(n) “Fair Market Value of the Lands” shall mean the fair market value of the Lands
as determined by Section 6 of this Agreement, on a per acre basis;
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(o)“Hazardous Substance” means any substance or material that is prohibited,
controlled or regulated by any governmental authority including any contaminants,
pollutants, asbestos, lead, polychlorinated by-phenyl or hydrocarbon products, any
materials containing same or directives thereof; underground storage, tanks,
dangerous substances or goods, toxic or hazardous substances or materials,
controlled products, hazardous wastes and any other materials which may by their
nature be hazardous, either in fact or as defined in or pursuant to any
Environmental Laws;
(p)“Income Tax Act” means the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.), as
amended;
(q)“Land Surveyor” means a surveyor, licensed to prepare survey of land within the
Province of Ontario;
(r)“Lands” means a part of those lands municipally described as 1842-1856 Notion
Road, in the City of Pickering, being Part of Lot 17, Concession 1, and assigned
Property Identifier Number 26330-0202 (LT), having an approximate area of no
less than two (2) acres and no more than two and a half (2.5) acres, and described
as Part 1 on the draft reference plan attached as Schedule “A”, the precise
boundaries and area of which shall be confirmed by the Land Surveyor;
(s)“Notion Road Overpass” means the proposed crossing, at varying levels, of the
highways known as Notion Road and Squires Beach Road for access purposes;
(t)“Permitted Encumbrances” means only those encumbrances described at
Schedule “B”;
(u)“Planning Act” means the Planning Act, R.S.O. 1990, c. P.13, as amended;
(v)“Proposed Development Lands” means those lands owned by the Vendor and
generally described as Parts 2, 3 & 4 on the draft reference plan attached as
Schedule “A” of this Agreement that are to be developed by the Vendor;
(w)“Purchase Price” has the meaning set out in Section 6 of this Agreement;
(x)“Reference Plan” means a Reference Plan prepared by a Land Surveyor
depicting the Lands;
(y)“Requisition Date” shall mean no later than 5:00 p.m. Toronto time on the date
that is Twenty (20) days prior to the Closing Date;
(z)“Vendor’s Planning Applications” means the Vendor’s applications for Official
Plan Amendment (OPA18-002 P), Zoning By-law Amendment (A03/18), Site Plan
Approval (S11/18) and Draft Plan of Condominium (CP-2018-06).
4.The Vendor agrees to sell the Lands to the Purchaser, and the Purchaser agrees to
purchase the Lands from the Vendor, upon the terms set out in this Agreement.
5.Total compensation for the Lands, being the Purchase Price, shall be determined pursuant
to the Appraisal.
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6. The Parties acknowledge and agree that, pursuant to the Appraisal prepared by CBRE
Valuation & Advisory Services for the Lands with an effective date of February 28, 2020,
the Purchase Price for the Lands shall be TEN MILLION SEVEN HUNDRED THOUSAND
DOLLARS ($10,700,000.00) (the “Purchase Price”) which the Parties acknowledge and
agree is the Fair Market Value of the Lands and as determined based on:
(a) The total lands conveyed for purpose of the Notion Road Overpass as determined
by the Environmental Assessment being the Lands in the general area shown on
Schedule “A” of no less than two (2) acres and no more than two and a half (2.5)
acres; provided the precise size and dimensions of the Lands shall be confirmed
by a Land Surveyor in accordance with the terms of this Agreement; and
(b) the highest and best use of the Lands, which is mutually acknowledged to be that
of Urban Residential Area – Medium Density.
7. The Purchaser and the Vendor acknowledge and agree that the valuation contained in the
Appraisal shall be deemed to be the Fair Market Value of the Lands for the purpose of this
Agreement.
8. It is acknowledged and agreed by the parties that the authorization of the payment of the
Purchase Price requires the approval of Council, which approval or refusal shall be
determined no later than March 28, 2022.
9. The Purchaser acknowledges and agrees that any and all parkland obligations of the
Vendor under section 42 of the Planning Act relating to its development of the Proposed
Development Lands and in connection with the Vendor’s Planning Applications are
deemed by the Corporation of the City of Pickering to be satisfied in full, and that the
Vendor shall not be required to dedicate any land or pay cash-in-lieu of parkland in
accordance with the provisions of Section 42 of the Planning Act with respect to any
portion of the Proposed Development Lands.
10. The payment of the Purchase Price shall be made on Closing to the Vendor or as the
Vendor may in writing direct, by cash or wire transfer to the trust account of the Vendor’s
solicitors.
11. The Purchaser agrees that a residential development can be constructed on the Vendor’s
Proposed Development Lands in advance of the selection of the precise location of the
Notion Road Overpass and/or construction of the Notion Road Overpass, subject to the
Vendor obtaining the relevant planning approvals in relation to its Planning Applications
and subject to making satisfactory arrangements to account for a future Notion Road
Overpass on the Lands.
12. The Vendor shall deliver a statement of adjustments to the Purchaser at least ten (10)
Business Days prior to the Closing Date and the parties’ solicitors shall exchange drafts
of all the closing documents at least five (5) Business Days before the Closing Date. The
Adjustments shall be apportioned and allowed up to the Closing Date (the Closing Date
itself to be apportioned to the Purchaser). In addition to other documentation customary
for real property transactions such as the one contemplated by this Agreement, the parties
shall each provide on Closing, an undertaking to readjust any errors or omissions in the
statement of adjustments to be prepared and delivered by the Vendor for the purposes of
Closing.
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13.To the best of the Vendor’s knowledge, the Vendor represents and warrants to the
Purchaser that the Lands have not been used as a waste disposal site, and that the
Vendor has not received any notice of any violation of any Federal, Provincial or other
regulations, orders or approvals of government authorities relating to the Lands or its use.
The Vendor, and its agents, shall have the right to entry onto the Lands from the
Agreement Authorization Date for the purpose of inspection, survey and performance of
environmental testing as it deems necessary including, but not limited to, obtaining soil
and liquid samples and drilling test holes. In the event that the Purchaser conducts any
such inspections, the Purchaser agrees to restore the Lands, so far as possible, to their
original condition. The Vendor shall provide the Purchaser with all consents or
authorizations (written or otherwise) necessary or desirable to enable the Purchaser to
obtain information as the Purchaser may consider necessary or advisable in determining
the environmental condition of the Lands within three (3) days after the request therefor.
The Vendor has provided all documents and reports in its possession relating to the
environmental condition of the Lands.
14.The Purchaser shall have 30 days from the Agreement Authorization Date to complete its
environmental due diligence and their obligations under this clause. In the event that the
Purchaser is not satisfied, in its absolute discretion, with the results of any inspection,
environmental test, survey or response to inquiries or if any environmental contaminants
are released prior to closing, the Purchaser may, without limiting any other right that the
Purchaser may have at its sole option, rescind this Agreement by delivering a notice of
termination to the Vendor, and in such event the Purchaser shall be released from all
obligations under this Agreement.
15.The parties acknowledge and agree that, forthwith following the Agreement Authorization
Date, the Vendor shall continue to engage a Land Surveyor to prepare and deposit on title
a reference plan substantively in the form of the draft attached hereto at Schedule “A”
depicting the Lands (the “Reference Plan”)..
16.The date by which the Vendor provides to the Purchaser satisfactory evidence that the
Reference Plan has been deposited on title to the Lands by a Plan Examiner of the Land
Registry Office of Durham shall be deemed for the purpose of this Agreement to be the
“Reference Plan Deposit Date”.
17.This Agreement shall be completed forty-five (45 days) following the later of: (i) the
Agreement Authorization Date, and (ii) the Reference Plan Deposit Date, but in any event,
no later than August 1, 2022, unless otherwise agreed upon in writing by the parties (the
“Closing Date”), and such completion shall occur on or before 5 p.m. on such date. The
parties agree to work cooperatively following the Agreement Authorization Date to
advance the Closing Date in order to complete this Agreement in an expeditious manner.
18.Upon Closing, vacant possession of the Lands shall be given to the Purchaser. Until
Closing, the Lands shall be at the sole risk of the Vendor.
19.The Purchaser shall be allowed until the Requisition Date to examine title to the Lands at
its own expense and to satisfy itself that there are no outstanding work orders affecting
the Lands or other title defects which the Purchaser is not willing to accept. If within the
time allowed for examining the title, any valid objections to title or to any outstanding work
order is made in writing to the Vendor and which the Vendor is unable to remove, remedy
or satisfy and which the Purchaser will not waive, this Agreement, notwithstanding any
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intermediate acts or negotiations in respect of such objections, shall be at an end. Save
as to any valid objection so made by such day and except for any objection going to the
root of the title, the Purchaser shall be conclusively deemed to have accepted the Vendor’s
title to the Lands.
20.On the Closing Date, title to the Lands is to be good and free from all registered
restrictions, liens, charges, easements, rights-of-way, or encumbrances save and except
for the Permitted Encumbrances. The Vendor shall discharge, on or before Closing, all
existing mortgages, liens or encumbrances registered on title to the Lands save for the
Permitted Encumbrances and save as for any mortgages with banks or trust companies
for which the Purchaser’s solicitor shall accept the Vendor’s solicitor’s personal
undertaking to obtain, out of the proceeds of sale, a discharge of same and to register the
discharge within a reasonable period of time following the Closing, provided that on or
before Closing the Vendor shall provide to the Purchaser a mortgage statement of the
amount required to obtain the discharge out of the balance due on closing and the
discharge amount is equal to or less than the total proceeds owing to the Vendor on
Closing.
21.Time shall be of the very essence of this Agreement, but no extensions of time for the
making of any payment or the doing of any act hereunder shall be deemed to be a waiver
or modification of or affect this provision. The time for doing or completing any matter
herein may be extended or abridged by agreement in writing signed by the Vendor and
the Purchaser or their respective solicitors who are specifically authorized in this regard.
22.Any tender of documents or money hereunder may be made upon the Vendor or
Purchaser or upon their respective solicitors and any money may be tendered by cheque
certified by a Canadian chartered bank.
23.The deed or transfer in respect of the Lands shall, save for the Land Transfer Tax Affidavit
(which shall be prepared and completed by the Purchaser) be prepared in registrable form
at the expense of the Vendor.
24.The Vendor, on completion, shall produce evidence that it is not a non-resident of Canada
within the meaning of Section 116 of the Income Tax Act or a certificate pursuant to the
provisions of Section 116 of the Income Tax Act that all taxes exigible on the sale of the
Lands will be paid or otherwise provided for failing which the Purchaser shall be credited
with the amount, if any, which it shall be necessary for the Purchaser to pay to the Receiver
General of Canada in order to satisfy the Purchaser’s liability in respect of tax payable by
the Vendor under the non-residency provisions of the Income Tax Act by reason of this
sale.
25.The Vendor represents, warrants and covenants to and with the Purchaser, which
representations and warranties are relied upon by the Purchaser and without which
representations and warranties the Purchaser would not have executed this Agreement
as follows:
(a)The Vendor is the registered owner of the Lands and has good and marketable
title thereto and has undertaken all requisite actions to bind itself to this Agreement
and the full and exclusive power to convey the fee simple interest therein;
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(b)To the best of the Vendor’s knowledge, information and belief, based upon the
knowledge, information and belief of the Vendor’s Associate Director/Business
(but that individual having made no inquiries or investigations), the Vendor has not
received written notice of any orders or directions relating to environmental or other
matters requiring any work, repairs, construction or capital expenditures with
respect to the Lands; and
(c)The Vendor is not a non-resident of Canada with the meaning of Section 116 of
the Income Tax Act.
The Purchaser’s obligation to carry out the transaction contemplated herein is subject to
the foregoing covenants, representations and warranties being true and accurate with the
same effect as if made on and as of the Closing. All of the foregoing covenants,
representations and warranties shall be confirmed by a statutory declaration of a senior
officer of the Vendor on Closing and shall survive the Closing of the within transaction.
26.The Purchaser acknowledges that the Purchase Price is exclusive of Harmonized Tax
(HST). The Purchaser represents warrants and agrees that:
(a)It is purchasing the Lands as principal for its own account and same is not being
purchased by the Purchaser as an agent, trustee or otherwise on behalf of or for
another person;
(b)It is registered under the Income Tax Act for the collection and remittance of HST;
and such registration is in good standing and has not been revoked;
(c)It shall be liable, shall self-assess and remit to the appropriate governmental
authority all HST which is payable under the Income Tax Act in connection with
the transfer of the Lands made pursuant to this Agreement of Purchase and Sale,
all in accordance with the Act;
(d)It acknowledges that the Vendor is relying upon the accuracy of the above
representations and warranties in not collecting HST on closing and allowing the
Purchaser to self-assess and remit HST to the Receiver-General in accordance
with the Income Tax Act, and that such representations and warranties shall not
merge on the closing of this transaction;
(e)It shall indemnify and save harmless the Vendor from and against any and all HST,
penalties, costs and/or interest which may become payable by or assessed against
the Vendor as a result of any inaccuracy, misstatement or misrepresentation made
in connection with any matter raised in this paragraph or contained in any
declaration referred to herein;
(f)It shall tender on closing a declaration and indemnity reflecting the above-noted
provisions; and.
(g)In the event the Purchaser is unable or fails to comply in any way with the foregoing
provisions, the following provisions shall be deemed to apply:
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The Purchaser covenants and agrees that it shall be responsible for paying
and remitting to the Vendor on closing the applicable HST payable under
the Income Tax Act in connection with the transfer of the Lands pursuant
to this Agreement of Purchase and Sale and failure of the Purchaser to do
so shall constitute a default by the Purchaser under the terms of the
Agreement of Purchase and Sale and without limiting (and without
prejudice to) any other rights or remedies available at law or in equity to the
Vendor, the Vendor, at its option may terminate this Agreement and retain
all monies therefor paid by the Purchaser together with any interest therein
as its liquidated damages and not as a penalty.
27.The Purchaser represents, warrants and covenants to and with the Vendor, which
representations and warranties are relied upon by the Vendor and without which
representations and warranties the Vendor would not have executed this Agreement as
follows:
(a)the Purchaser is a legally constituted entity duly existing under the laws of the
Province of Ontario and has the necessary corporate and municipal authority,
power and capacity to carry out this Agreement and the documents and
transactions contemplated herein.
(b)The agreement of purchase and sale constituted on the execution and delivery of
this Agreement and the obligations of the Purchaser hereunder and the documents
and transactions contemplated herein have been duly and validly authorized by all
requisite corporate and municipal proceedings and constitute legal, valid and
binding obligations of the Purchaser enforceable against the Purchaser in
accordance with its terms.
(c)The Vendor is not now and shall not be on Closing a non-resident of Canada within
the meaning of Section 116 of the Income Tax Act.
The Vendor’s obligation to carry out the transaction contemplated herein is subject to the
foregoing covenants, representations and warranties being true and accurate with the
same effect as if made on and as of the Closing. All of the foregoing covenants,
representations and warranties shall be confirmed by a statutory declaration of a senior
officer of the Purchaser on Closing and shall survive the Closing of the within transaction.
28.The Vendor covenants and agrees to deliver to the Purchaser on the Closing Date, all
such deliveries to be a condition of the Purchaser’s obligation to close this transaction, the
following:
(a)Transfer of the Lands in compliance with the subdivision control provisions of the
Planning Act in favour of the Purchaser;
(b)Statement of Adjustments;
(c)Undertaking to readjust in usual form;
(d)Discharge or partial discharge of charges or solicitor’s undertaking as applicable;
(e)Direction of Funds;
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(f)Declaration re Section 116 of the Income Tax Act; and
(g)A Certificate attesting to the validity, as of closing, of the matters identified in
Section 25 of this Agreement.
(h)Such other documents as may be required pursuant to the terms of this
Agreement.
29.The Purchaser covenants and agrees to deliver to the Vendor on the Closing Date, all
such deliveries to be a condition of the Vendor’s obligation to close this transaction, the
following:
(a)Undertaking to readjust in usual form and of non-merger;
(b)Direction re title;
(c)The statutory declaration re Harmonized Sales Tax referred to in Section 26 of this
Agreement;
(d)The balance due on closing, subject to Adjustments, payable to the Vendor or as
the Vendor may, in writing, direct;
(e)A Certificate attesting to the validity, as of closing, of the matters identified in
Section 27 ;
(f)A copy of the deposited Reference Plan depicting the Lands; and
(g)Such other documents as may be required pursuant to the terms of this Agreement.
30.Any notice herein provided, permitted or required to be given by the Vendor to the
Purchaser shall be sufficiently given if delivered personally or sent by electronic mail, fax
transmission or mailed in one of Her Majesty’s post offices, postage to be paid, addressed
to the Purchaser at:
The Corporation of the City of Pickering
Pickering Civic Complex
One the Esplanade
Pickering, ON L1V 6K7
Attention: Paul Bigioni, City Solicitor
Telephone Number: (905) 420-4626
Fax Number: (905)420-9685
E-mail:pbigioni@pickering.ca
and such notice if given by the Purchaser to the Vendor shall be sufficiently given if given
personally, delivered by electronic mail or fax transmission or if mailed as aforesaid to
the Vendor at:
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Metropia (Notion Road) Development Inc.
2300 Yonge Street
Suite 807
Toronto, ON M4P 1E4
Attention: Samuel Frum
Telephone Number: 416-486-4242 x 340
Fax Number: 416-486-3780
E-mail:sam@metropia.ca
with a copy to its solicitors:
Davies Howe LLP
425 Adelaide St. West
Tenth Floor
Toronto, ON M5V 3C1
Attention: Susan Rosenthal
Telephone Number: (416) 263-4500
Fax Number: (416)977-8931
E-mail:susanr@davieshowe.com
and such notice mailed as aforesaid shall be conclusively deemed to be given the third
Business Day immediately following the mailing of the same (except in the case of a
postal service disruption, in which case notice shall be given by personal delivery,
electronic mail or fax transmission), and if delivered personally or sent by electronic mail
or fax transmission, upon the Business Day of delivery or transmission, unless the
delivery, electronic mail or fax transmission occurs on a day that is not a Business Day
or after 5:00 p.m., Toronto, Ontario time, in which case it will be deemed to have been
received on the Business Day next following the date of delivery or transmission. Either
party may, at any time, give notice to the other in the manner prescribed on any change
of address of the party giving such notice and from and after giving of such notice, the
address therein specified shall be deemed to be the address of such party for the giving
of such notice thereafter.
31.The Vendor and Purchaser acknowledge and agree that if the Teraview Electronic
Registration System (the “ERS”) is operative in the Land Titles Office in which title to the
Lands is recorded, then the following provisions shall apply:
(a)The parties shall instruct their respective solicitors to enter into an escrow closing
agreement on the Purchaser’s Solicitors’ standard form, (hereinafter referred to as
the “Escrow Document Registration Agreement’) establishing the procedures
for completion of this transaction by means of the ERS;
(b)the delivery and exchange of documents, monies and possession of the Lands
and the release thereof to the Vendor and the Purchaser, as the case may be,
shall not occur contemporaneously with the registration of the transfer/deed of land
and other registrable documentation, and shall be governed by the Escrow
Document Registration Agreement pursuant to which the Vendor’s Solicitors and
the Purchaser’s Solicitors will hold in escrow all documents, monies received by
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them and will not release same to their respective clients except in strict
accordance with the Escrow Document Registration Agreement; and
(c) each of the parties to this Agreement agrees that any documents not intended for
registration on title to the Lands may be delivered to the other party to this
Agreement in properly executed form by facsimile transmission or other similar
system reproducing the original, provided the party transmitting any such
document shall also deliver the original thereof to the recipient party by overnight
courier sent on the Closing Date or by such other means and/or within such other
time as may be agreed to by the parties’ respective solicitors.
32. Notwithstanding the fact that the Purchaser is a municipality and, pursuant to section
50(3)(c) of the Planning Act, is therefore exempt from the subdivision control provisions of
the Planning Act, both parties agree to execute the Planning Act statements and to cause
their respective solicitors to execute the Planning Act statements in the Transfer/Deed of
Land transferring and conveying the interest of the Lands to the Purchaser. This
Agreement shall be effective to create an interest in the Lands only if the Subdivision
Control provisions of the Planning Act are complied with on or before the Closing Date.
33. The Vendor hereby accepts the Purchase Price as full settlement of any and all rights it
has, had or would have had under the Expropriations Act including, without limitation,
business losses and damages attributable to disturbance and damages for injurious
affection resulting from the agreements herein and the transfer and conveyance of the
Lands to the Purchaser.
34. This Agreement shall constitute the entire Agreement between the Purchaser and Vendor
and there is no representation, warranty, collateral Agreement or condition affecting this
Agreement or the Lands or supported hereby other than as expressed herein writing.
35. Any notice, approval, waiver, agreement, instrument, document or communication
permitted, required or contemplated in the Agreement may be given or delivered and
accepted or received by the Purchaser’s solicitors on behalf of the Purchaser and the
Vendor’s solicitors on behalf of the Vendor.
36. Each of the parties shall at the request of the other, execute such other documents and
provide such assurances as may reasonably be requested to give full effect to the terms
and conditions herein.
37. The Purchaser and Vendor agree that in the event that the Purchaser’s or Vendor’s
respective solicitors, lenders, or the provincial Land Registry Office becomes the subject
of a mandatory closure due to the COVID-19 virus at the time of performance hereunder
that results in the parties inability to complete the transaction as scheduled, the Closing
Date shall be automatically extended at the request of either party for an anticipated new
closing date not more than three (3) business days after the reopening of the above-
referenced institutions. Time shall remain of the essence for any extended closing date as
a result of this provision.
38. Notwithstanding anything in this Agreement to the contrary, if either the Purchaser or
Vendor are bona fide delayed in or prevented from performing any obligation arising under
this Agreement by reason of strikes or other labour disturbances, civil disturbance,
material or labour shortage, restrictive government laws, including but not limited to the
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issuance of required approvals, permits, regulations or directives, acts of public enemy,
war, terrorism, riots, sabotage, crime, lightning, earthquake, fire, hurricane, tornado, flood,
explosion, pandemic, communicable disease, act of God, or other extraordinary event
outside of the control of either party, then the performance of such obligation is excused
for so long as such cause exists, and the party so delayed shall be and is entitled, without
being in breach of this Agreement, to carry out such obligations within the appropriate time
period after the cessation of such cause.
39. This Agreement shall be interpreted under and be governed by the laws of the Province
of Ontario and the laws of Canada applicable to this Agreement.
40. If any of the provisions contained in this Agreement are determined to be invalid, illegal or
unenforceable in any respect by a court of competent jurisdiction, the validity, legality or
enforceability of the remaining provisions contained herein shall not in any way be affected
or impaired thereby to the extent possible.
41. This Agreement shall be binding upon and shall enure to the benefit of the parties and
each of their respective representatives, heirs, executors, administrators, successors and
assigns.
42. This Agreement shall be read with all changes of gender or number required by the
context.
43. Any provisions herein that contemplate or refer to matters after the Closing Date shall not
merge on the Closing but shall remain in full force and effect and survive the Closing.
44. This Agreement may be executed and delivered in any number of separate counterparts
each of which when executed and delivered shall be deemed as original copies for all
purposes necessary to give effect to the terms of the Agreement, but all of which taken
together constitutes one and the same instrument. Any party may deliver an executed
copy of this Agreement by facsimile or email transmission.
45. This Agreement, when executed by the City’s authorized signing officers, shall constitute
a binding agreement.
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IN WITNESS WHEREOF the Parties have hereunto signed this Agreement on the
of , 2022.
day
THE CORPORATION
PICKERING
OF THE TOWN OF
Per:
Name:
Title:
Per:
Name:
Title:
We have the authority to bind the Corporation.
METROPIA (NOTION ROAD) DEVELOPMENT
INC.
Per:
Name:
Title:
Per:
Name:
Title:
I/ We have the authority to bind the Corporation.
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SCHEDULE "A"
LEGAL DESCRIPTION AND DRAFT REFERENCE PLAN DEPICTING LANDS
The draft reference plan attached hereto depicts an approximate visualization of the Lands,
described as Part 1, and which form of a part of the property currently legally described as follows:
PART LOT 17 CONCESSION 1 PICKERING PART 1, PLAN 40R29897; SUBJECT TO AN
EASEMENT IN FAVOUR OF PART LOTS 17 & 18 CONCESSION 1 PICKERING AS IN
DR1619827; CITY OF PICKERING, and assigned P.I.N 26330-0202 (LT).
A registerable description of the Lands shall be provided to the Purchaser by the Vendor
immediately upon receipt of a deposited Reference Plan and pursuant to the terms of this
Agreement.
[Draft reference plan attached]
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SCHEDULE “B”
PERMITTED ENCUMBRANCES
1. Privileges or liens imposed by law; privileges or liens for taxes, assessments or
governmental charges or levies not at the time due or delinquent or the validity of which
is being contested at the time by the Vendor in good faith in proceedings before a court or
governmental body; the undetermined or inchoate privileges or liens and charges
incidental to current operation which have not at such time been filed pursuant to law
against the Vendor or which relate to obligation not due or delinquent.
2. Encumbrances (excluding mortgages, charges and liens), including without limitation,
servitudes, encroachments, easements, rights-of -way, restrictive covenants or other
similar rights in land granted to or reserved by other persons, rights-of-way for drainage,
sewers, electric lines, telegraphs and telephone lines, cable television lines or other
services and other similar purposes or zoning or other restrictions as to the use of the
rights-of-way and other similar rights and restrictions, which do not in the aggregate
materially detract from the value of the said Lands or materially impair the intended use
of the Lands by the Purchaser.
3. Any unregistered easements for utility services.
4. Subsisting reservations, limitations, provisos, conditions or exceptions contained in any
grants of the Lands or any portion thereof or interest therein from the Crown, including
reservations of under-surface rights to mines and minerals of any kind including rights to
enter, prospect and remove the same.
5. Any registered municipal agreements and registered agreements with publicly regulated
utilities providing such have been complied with, or security has been posted to ensure
compliance and completion, as evidenced by a letter from the relevant municipality or
regulated utility.
6. Any registered easements from the supply of domestic utility or telephone services to the
Lands or adjacent properties.
7. Any registered easements for drainage, storm or sanitary sewers, public utility lines,
telephone lines, cable television lines or other services which do not materially affect the
use of the Lands.
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Property Address: 1865 Pickering Parkway, Pickering, Ontario
Interest Appraised: Fee Simple
Effective Date: February 28, 2020
Product Type: Vacant land with potential for medium density residential
development
Land Area: 8.97 acres
Land Area: 390,701 sq ft (red outline)
Area of the Fee Simple Taking: 90,169 sq ft {light green outline)
Attachment #2 to Report LEG 09-22
Attachment #3 to Report LEG 09-22
The Corporation of the City of Pickering
By-law No. /22
Being a by-law to authorize the Purchase of
Land for the Construction of 401 Overpass in
the City of Pickering and the issuance of
debenture in the amount of $4,373,950.00.
Whereas Section 11 of the Municipal Act, 2001, as amended, provides that a lower-tier
municipality may pass by-laws respecting matters within the spheres of jurisdiction
described in that Section; and,
Whereas Subsection 401(1) of the Municipal Act, 2001, as amended, provides that a
municipality may incur a debt for municipal purposes, whether by borrowing money or in
any other way; and,
Whereas Subsection 401(3) of the Municipal Act, 2001, as amended, provides that a
lower-tier municipality in a regional municipality does not have the power to issue
debentures; and,
Whereas The Regional Municipality of Durham has the sole authority to issue
debentures for the purposes of its lower-tier municipalities including The Corporation of
the City of Pickering (the “City”); and,
Whereas the Council of the City wishes to proceed with debenture financing for the
Purchase of Land for the Construction of 401 Overpass project; and,
Whereas before authorizing the acquisition in respect to the Purchase of Land for the
Construction of 401 Overpass project, the Council of the City had the Treasurer update
the City’s Annual Repayment Limit, the Treasurer calculated the estimated annual
amount payable in respect of such project and determined that such annual amount
would not cause the City to exceed the updated limit and therefore, Ontario Land
Tribunal (OLT) approval is not required as per Section 401 of the Municipal Act, 2001,
as amended, and the regulations made thereunder;
And whereas after determining that Ontario Land Tribunal approval is not required, the
Council of the City approved report LEG 09-22 on the date hereof and approved the
Purchase of Land for the Construction of 401 Overpass project in the City of Pickering;
___________________________________
___________________________________
By-law No. /22 Page 2
Now therefore the Council of The Corporation of the City of Pickering hereby enacts as
follows:
1. That the City proceed with the project referred to as “Purchase of Land for the
Construction of 401 Overpass”;
2. That the estimated costs of the project in the amount of $10,934,876.00 be financed
as follows:
a). the sum of $4,373,950.00 be financed by the issue of a debenture by The
Regional Municipality of Durham over a period not to exceed 20 years;
b). the sum of $4,976,232.00 be funded from the Development Charges-
Transportation Services Reserve Fund;
c). the sum of $1,584,694.00 be funded from a 1-year Internal Loan;
3. That the funds to repay the principal and interest of the debenture be provided for in
the annual Current Budget for the City commencing in 2022 or such subsequent
year in which the debenture is issued and continuing thereafter until the debenture
financing is repaid, for 2 a) noted above;
4. That the funds to repay the principal and interest of the debenture be provided for in
the annual Current Budget for the City commencing in 2022 or such subsequent
year in which the debenture is issued and continuing thereafter until the debenture
financing is repaid from future development charge as the first source of repayment
for 2 b) noted above.
By-law passed this 28th day of March, 2022
Dave Ryan, Mayor
Susan Cassel, City Clerk