Driveway Entrance Agreement
A by-law respecting the entering into of an easement and cost sharing agreement (the "Driveway Entrance Agreement") between this Corporation, Metropolitan Toronto Condominium Corporations Nos. 1162 and 1256, and May Tower Developments Ltd. (the "Declarant"), its successors and assigns, as owner of the Future Development Area, in the general form annexed hereto.
Whereas the Corporation desires to enter into the Driveway Entrance Agreement with the aforesaid parties for the purposes of:
- confirming the provisions of the declaration of the Corporation pertaining to the use, operation, repair, maintenance and cost sharing of the Driveway Entrance as therein more specifically defined; and
- providing for the mutual use, repair, maintenance and cost sharing of the Driveway Entrance serving and benefiting the condominium corporations and the Declarant;
BE IT ENACTED as a by-law of Toronto Standard Condominium Corporation No. 1431 (the "Corporation") as follows:
- The Corporation be and it is hereby authorized to enter into the Driveway Entrance Agreement with the Declarant and with Metropolitan Toronto Condominium Corporation Nos. 1162 and 1256, and to execute any further documents or other assurances with the Declarant, its successors and assigns, as may be required by the Declarant to give full effect to the provisions of the Driveway Entrance Agreement.
- That all terms, provisions and conditions set out in the Driveway Entrance Agreement, including, without limitation, all covenants and agreements made by or on behalf of the Corporation, are hereby authorized, ratified, sanctioned and confirmed.
- That the President alone or the Secretary alone be and either of them are hereby authorized to execute, on behalf of the Corporation, the Driveway Entrance Agreement, together with all other documents or instruments which are ancillary to said Agreement. The affixation of the corporate seal of the Corporation to all such documents and instruments is hereby authorized, ratified, sanctioned and confirmed.
WITNESS the corporate seal of the Corporation this 1st day of April, 2002.
Driveway Entrance Agreement
A Schedule To By-Law No.3 Of Toronto Standard Condominium Corporation No. 1431
This Agreement made this day of April, 2002.
MAY TOWER DEVELOPMENTS LTD., a corporation incorporated under the laws of the Province of Ontario, the owner of the Future Development Area, and on behalf of any commercial or residential condominium corporation subsequently registered within the Future Development Area, (hereinafter called the "Declarant")
OF THE FIRST PART,
- and -
METROPOLITAN TORONTO CONDOMINIUM CORPORATION NO.1256, a condominium corporation created by the registration of a declaration and description on the 24th day of June, 1999, in the Land Registry Office for the Land Titles Division of Metropolitan Toronto (No. 66) as Instrument No. E256222 (hereinafter called the "Phase I Corporation" or "Building A"),
OF THE SECOND PART,
- and -
TORONTO STANDARD CONDOMINIUM CORPORATION NO. 1431, a condominium corporation created by the registration of a declaration and description on the 27th day of March, 2002, in the Land Registry Office for the Land Titles Division of Metropolitan Toronto (No. 66) as Instrument No. E520699 (hereinafter called the "Phase II Corporation" or "this Corporation" or "Building B"),
OF THE THIRD PART;
- and -
METROPOLITAN TORONTO CONDOMINIUM CORPORATION NO.1162, a corporation created by the registration of a declaration and description in accordance with the Condominium Act (hereinafter called the "Retail Structure"),
OF THE FOURTH PART.
WHEREAS the Declarant is the declarant of this Corporation, Metropolitan Toronto Condominium Plan No. 1162 and Metropolitan Toronto Condominium Corporation No.1256, and is also the registered owner of certain lands adjacent to the Building A Lands, the Building B Lands and the Retail Structure, being the whole of Block 1 on Registered Plan 66M-2288, City of Toronto, Municipality of Metropolitan Toronto, registered in the aforesaid Land Registry Office (the "Future Development Area");
AND WHEREAS pedestrian and vehicular access from Lee Centre Drive to the Building A Lands, the Building B and the Retail Structure is provided by means of an existing (private) driveway being within the Future Development Area, and the declarations and description of the Phase I Corporation and the Phase II Corporation and the Retail Structure provide for the benefit from the Declarant of a permanent easement over, along and upon said driveway (the "Driveway Entrance") for the passage of persons, vehicles, materials and equipment for the purposes of maintaining, repairing and reconstructing Building A, the Retail Structure and Building B and for the use and maintenance of the Driveway Entrance;
AND WHEREAS the condominium corporations and the Declarant have entered into this Agreement on a non-profit basis for the purposes of providing for the mutual use, maintenance and cost sharing of the Driveway Entrance which serves and benefits all of the parties hereto;
AND WHEREAS for the purpose of interpreting any provision contained in this Agreement, the term "Declarant" shall include any successor in title of the Retail Structure and/or the Future Development Area;
AND WHEREAS it is acknowledged that the Declarant is entering into this Agreement on behalf of the Retail Structure and the Future Development Area on the express understanding that:
- as soon as the Retail Structure achieves fifty-one percent (51%) occupancy by individual retail users, the Phase I Corporation, the Phase II Corporation and the Declarant, on behalf of the Retail Structure, will share, equally to the extent of 1/3 each, the costs of maintaining, repairing and replacing the Driveway Entrance;
- prior to the date described in i) above, the Phase I Corporation and the Phase II Corporation shall share, equally, to the extent of 50% each, the costs of maintaining, repairing and replacing the Driveway Entrance;
- upon completion of the buildings to be constructed within the Future Development Area by the Declarant, and the achievement of an occupancy level of at least fifty-one percent (51%) therein, the condominium corporations, the owners of the Retail Structure and the owners of the Future Development Area agree to share, equally, to the extent of one-quarter (¼) each, the Driveway Entrance Costs;
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the mutual covenants and agreements hereinafter set forth, and for other good and valuable consideration and the sum of Ten Dollars ($10) of lawful money of Canada paid by each party to the other (the receipt and sufficiency of which is hereby acknowledged by each of the parties), the parties hereto hereby covenant and agree to and with each other and each of them as follows:
ARTICLE 1 - RECITALS AND DEFINITIONS
The recitals hereinbefore set forth are true in substance and in fact.
In this Agreement the following terms shall have the following meanings:
- "Acceptable Standard" shall mean, with respect to the maintenance and repair of the road surface, curbs, lighting and storm drainage systems, in accordance with all applicable laws, municipal standards and regulations and in a good state of repair and comparable condition to the standard of maintenance and repair of similar facilities within the private roadway system situate within the Building A Lands and the Building B Lands;
- "Driveway Entrance" shall mean the private road and driveway entrance hereinbefore described in this Agreement including the traffic topping and road support systems, storm sewer drainage, curbs, road signage and lighting but excluding therefrom the adjacent retail parking spaces serving the Future Development Area and the Retail Structure only; and
- "Driveway Entrance Costs" or the "Shared Costs" shall mean the costs involved in the insuring, maintenance, repair and replacement and operation of the Driveway Entrance including the resurfacing of the road, the removal of snow and ice therefrom, the erection and maintenance of signage and exterior lighting in accordance with the site plan by-law and any agreement(s) with the Corporation of the City of Toronto (formerly the City of Scarborough);
ARTICLE 2 - EASEMENTS
2.1 Reciprocal Easements
The parties hereto confirm, accept and agree to abide by the reciprocal easements set forth in the declarations and descriptions of the condominium corporations which provide for the mutual use, operation, maintenance and repair of the Driveway Entrance with the Declarant.
2.2 Continued Enjoyment
The continued enjoyment by any of the parties to an easement, right or privilege hereby granted or referred to shall be dependent or conditional upon that party's contributing its proportionate share of the Driveway Entrance Costs as herein provided. The failure by the condominium corporations to so contribute according to their proportionate share of the Shared Costs shall, at the option of the Declarant, as the owner of the Future Development Area, lead to the suspension of its enjoyment of such easement, right or privilege.
ARTICLE 3 - APPORTIONMENT OF DRIVEWAY COSTS
3.1 Prior to 51% Occupancy of the Retail Structure
Prior to the achievement of 51% occupancy level of the retail units in Metropolitan Toronto Condominium Plan No. 1162, the Phase I Corporation and the Phase II Corporation covenant and agree with one another and with the Declarant to maintain, repair and replace the Driveway Entrance to the Acceptable Standard at their own and sole expense shared equally with each other. The Phase I Corporation hereby agrees to indemnify and save the Declarant harmless from any costs, loss, expense, damage or liability which the Declarant may suffer as a result of a breach of this covenant by the Corporation to so maintain and repair the Driveway Entrance. The Phase I Corporation and the Phase II Corporation shall include in their respective annual operating budgets an appropriate amount to be allocated to the maintenance, repair and replacement of the Driveway Entrance as part of the common expenses.
3.2 Achieving 51% Occupancy of the Retail Structure
Upon the achieving of 51% occupancy level by the retail users in the Retail Structure, the Declarant, as owner of the Retail Structure, shall thereupon contribute 1/3 of the Shared Costs with the Phase I Corporation and the Phase II Corporation.
3.3 Achieving 51% Occupancy of the Future Development Area
Upon completion of the buildings comprising the Future Development Area by the Declarant and the achieving of a fifty-one percent (51%) occupancy level therein, the Shared Costs shall be adjusted to reflect a 1/4 equal contribution thereto by each of the four (4) component parties being the Declarant, its successors and assigns, Metropolitan Toronto Condominium Corporations Nos. 1162, 1256 and 1431.
The Declarant agrees to cause the residential condominium corporation(s) comprising the Future Development Area to assume the obligations of the Declarant hereunder.
3.4 Willful Neglect or Act or Omission
The costs of any repairs or maintenance to the Driveway Entrance necessitated by the willful or negligent act or omission of a party hereto shall be paid by such party and shall not be included in its proportionate share of the Driveway Entrance Costs.
ARTICLE 4 - MAINTENANCE
4.1 The Phase I Corporation
For administrative convenience, the Phase I Corporation agrees to be primarily responsible for arranging for the performance of the maintenance, repair and operation of the Driveway Entrance, and the Phase I Corporation shall have reasonable discretion with respect to the means of performing same. It is agreed that the amount of any cost or expense actually paid or incurred by the Phase I Corporation for any work so performed pursuant to this Agreement shall not be challenged by the other parties to this Agreement unless clearly demonstrated to be substantially in excess of the reasonable costs and expenses which would have been paid had the Phase I Corporation exercised due diligence in the performance of such work to the Acceptable Standard.
For administrative convenience, and unless otherwise agreed upon, the Phase I Corporation shall enter into all contracts for the maintenance, repair, replacement and operation of the Driveway Entrance for the benefit of all four parties and shall make all proper payments thereunder. Each Corporation (including the Retail Structure) shall pay its proportionate share of all proper charges under each such contract as invoiced by the Phase I Corporation, within thirty (30) days, as such charges are properly billed.
ARTICLE 5 - RECORDS
5.1 Retention of Records
The Phase I Corporation shall retain, in the City of Toronto, until the expiry of five (5) years from the end of the calendar year in which they relate, copies of all statements and records of its contracts and expenses in connection with the maintenance, repair and operation of the Driveway Entrance. All statements and records shall be kept in accordance with generally accepted accounting principles, and the Phase I Corporation shall permit each party to inspect such books and records from time to time upon no less than five (5) business days advance written notice and to make further copies thereof for and at the expense of the party.
ARTICLE 6 - DEFAULT
6.1 Limited Remedy
In no event shall any party to this Agreement delay, or refuse for any reason whatsoever, to make any payment of its proportionate share of the Driveway Entrance Costs at the time when such party is responsible to make payments under this Agreement, and all such required payments shall be made in strict compliance with this Agreement. It is intended that the only remedy available to any party with respect to a dispute with another party or parties concerning a monetary matter under this Agreement shall be the arbitration provisions or those other specific remedial provisions which are set forth in this Agreement.
6.2 Failure to Perform
In the event that any party (the "Defaulting Party") fails to perform any of its obligations under this Agreement, and another party (the "Requesting Party") wishes to do so, the Requesting Party may provide the Defaulting Party with written notice requesting it to perform its obligations, and if the required obligation to be performed is not commenced within seventy-two (72) hours of such notice being delivered (or such earlier period of time in the case of an emergency) and is not diligently continued after the giving of such notice, the Requesting Party shall be entitled to perform the obligation of the Defaulting Party, including without restricting the generality of the foregoing, the payment of any cost or expense required to be made by the Defaulting Party pursuant to this Agreement, including the performance of the required repair or replacement work and the hiring of contractors. The Defaulting Party agrees to pay directly to the Requesting Party any cost or expense actually paid or incurred by the Requesting Party in the performance of the obligations of the Defaulting Party pursuant to this Agreement, and such costs or expense shall bear interest at the rate hereinafter provided.
In the event that the condominium corporations or either of them shall be in default in payment to the Declarant of its (their) proportionate share of the Driveway Entrance Costs, such corporation(s) shall pay to the Declarant interest on the overdue amount calculated from the dale of default until the receipt of payment at the rate of four percent (4%) above the prime lending rate charged from time to time by the HSBC Bank Canada to its most credit worthy customers together with any legal costs incurred by the Declarant on an as between a solicitor and his own client basis in the collection or attempted collection of the unpaid amount.
ARTICLE 7 - DAMAGE AND DESTRUCTION
The Declarant shall arrange to obtain and maintain adequate property damage and public liability insurance containing appropriate coverages and limits as would a prudent owner of a comparable commercial property, insuring the interests of or, alternatively naming as co-insured, each of the parties hereto, their respective agents, directors, officers and employees in and with respect to the Driveway Entrance. Such policy or policies shall contain a provision prohibiting its/their cancellation or substantial modification without at least sixty (60) days written notice by registered mail to the parties hereto.
If the Driveway Entrance is damaged or destroyed, the Phase I Corporation shall rebuild, restore and repair same to an Acceptable Standard in accordance with this Agreement. The Phase I Corporation shall, as soon as is practically possible after such event, arrange to rebuild, restore and repair the Driveway Entrance to an Acceptable Standard in accordance with this Agreement as a Shared Cost, save to the extent that insurance proceeds apply thereto and subject to the recovery of any uninsured portion of the costs from any party whose willful or negligent act or omission caused or substantially contributed to the damage or destruction of the Driveway Entrance as hereinbefore provided in paragraph 3.5 hereof.
7.3 Force Majeure
Whenever and to the extent that any party is prevented, hindered or delayed in the fulfillment of any obligation hereunder or the doing of any work by reason of force majeure (which shall not include financial inability), that party's obligation shall be postponed and each party shall be relieved from any liability in damages or otherwise for a breach thereof for so long as and to the extent such prevention, hindering or delay continues to exist.
ARTICLE 8 - REPAIRS AND IMPROVEMENTS
8.1 Repairs to Servicing Systems
The parties acknowledge and agree with one another that one or more of the parties may be required to remove or excavate part of the Driveway Entrance to effect and carry out repairs to utility lines and servicing systems which are located below the Driveway Entrance or other repairs to its property. During such temporary period that any such work is undertaken, the party or parties arranging to carry out such work shall consult with the other party or parties to ensure continued access by means of a temporary alternate route to and from the lands of each of the parties hereto and, in such event, the Driveway Entrance shall be restored to an Acceptable Standard as soon as possible following completion of such work by and at the expense of the responsible party.
If any of the parties hereto desire to make and carry out (as a Shared Cost) any improvements above an Acceptable Standard of maintenance, repair and replacement to the Driveway Entrance, the decision to carry out and implement such improvements shall be unanimous by all four (4) parties, failing which the proposed improvement shall not be carried out.
ARTICLE 9 - DISPUTE RESOLUTION
The parties agree to use their best efforts to resolve any disputes or matters which may arise between them in respect of the Shared Facilities through good faith negotiations, and the parties further agree that they shall resort to legal proceedings or arbitration against one another only as a last resort. If, after using their best efforts to resolve any such dispute or matter, such dispute or matter cannot be resolved by good faith negotiations, then such dispute shall be determined in the following manner.
9.2 Mediation and Arbitration
- If the parties are unable to resolve the question or matter in dispute through good faith negotiations, as contemplated in Section 9.1 above, then the parties shall, within thirty (30) days thereafter, select a mediator to assist the parties in dealing with the particular question or matter in dispute, and the parties shall attempt to mediate their differences, and the mediator shall confer with the parties and endeavour to obtain a settlement with respect to the disagreement submitted to mediation. The parties shall initially share equally in the costs of the mediator, however, the settlement shall specify the share of the mediator's fees and expenses that each party is required to pay. Upon obtaining a settlement between the parties with respect to the disagreement submitted to mediation, the mediator shall make a written record of the settlement which shall form part of the agreement or matter that was the subject of the mediation.
- If good faith negotiations and the mediation process described above are exhausted, and the parties are still unable to resolve the question or matter in dispute, within thirty (30) days after the mediator delivers a notice to the parties stating that the mediation has failed, the parties agree to submit the question or matter in dispute for resolution by a single arbitrator, whose appointment is agreed upon by the parties, and the decision of the arbitrator shall be binding upon the parties hereto, and no legal recourse shall be exercised by either party hereto with respect to the question or matter in dispute until the arbitration has been completed.
- The parties shall appoint a single arbitrator to pass upon the particular question or matter in dispute. In the event that the parties are unable to agree upon a single arbitrator, each party shall appoint one arbitrator within seven (7) days of the meeting and notify the other party. The arbitrators so appointed shall, within seven (7) days of the appointment of the last arbitrator so appointed, choose a single arbitrator who is to pass upon the particular question or matter in dispute. If any party neglects or refuses to name an arbitrator within seven (7) days of being requested to do so by another party, the arbitrator named by the first party to appoint an arbitrator shall proceed to resolve the dispute in accordance with the Arbitrations Act, 1991, and the parties agree that the arbitrator's decision shall be final and shall not be subject to appeal by either party other than on a question of law in accordance with Subsection 45(2) of the Arbitrations Act, 1991 or pursuant to a specific ground for appeal or for setting aside the arbitrator's award pursuant to Section 46 of the Arbitrations Act. 1991.
9.3 Condition precedent
Whenever arbitration is required by this Agreement, commencement and completion of such arbitration in accordance with this Agreement shall be a condition precedent to the commencement of an action at law or in equity in respect of the question or matter in dispute to be arbitrated.
9.4 Continued obligations
For clarity, notwithstanding any dispute, until the question or matter in dispute is finally determined by mediation or by arbitration, the disputing party shall continue to perform all work and services required to be performed by it and to pay all amounts required to be paid by it in accordance with this Agreement.
9.5 Binding Effect
In the event of any dispute between the parties hereto with respect to this Agreement or any matters arising therefrom or pertaining thereto, and such matter cannot be resolved among or between any of the parties hereto, the matter in dispute, upon notice by one party to the other stipulating that it requires the matter to be submitted to arbitration, shall be submitted to arbitration and the decision of the arbitrator shall be binding upon the parties hereto, and upon submitting such matter to arbitration, no legal recourse shall be exercised by any party hereto.
9.6 Appointment of Arbitration
In the event the parties to such dispute are unable to agree upon a single arbitrator, each party to the dispute shall appoint one arbitrator within seven (7) days of notice by the other party requiring submission of the dispute to arbitration. The arbitrator so appointed shall, within seven (7) days of the appointment of the last arbitrator so appointed, choose a single arbitrator. If either party neglects or refuses to name its arbitrator within seven (7) days of being requested to do so by any other party or to proceed with the arbitration, the arbitrator first named and appointed shall proceed and settle the dispute and his decision shall be final and shall not be subject to appeal even on a question of law.
9.7 The Arbitrations Act, 1991
The arbitration shall be conducted in accordance with the provisions of the Arbitrations Act, 1991 (Ontario).
ARTICLE 10 - NOTICE
10.1 Address for Service
Any notice herein provided for or permitted to be given by any of the parties hereto shall be sufficiently given if delivered to the President of each Condominium Corporation by hand, by facsimile (telefax) or by ordinary prepaid post, addressed to the Condominium Corporations at their address for service and to the Declarant at the following address:
- TO THE DECLARANT: May Tower Developments Ltd.
7 Lee Centre Drive
Scarborough ON M5H 3S8
- TO THE PHASE I CORPORATION: Metropolitan Toronto Condominium Corporation No.1256
c/o Brookfield Residential Management Services Ltd.
3190 Steeles Avenue East, Suite 200
Markham ON L3R 109
- TO THE PHASE II CORPORATION: Toronto Standard Condominium Corporation No. 1431
c/o Brookfield Residential Management Services Ltd.
3190 Steeles Avenue East
Markham, ON L3R 109
- THE OWNERS OF THE RETAIL Metropolitan Toronto Condominium Corporation
CONDOMINIUM: No. 1162
c/o May Tower Developments Ltd.
7 Lee Centre Drive
Scarborough On M5H 3S8
Any such notice given as aforesaid shall be deemed to have been given on the date on which such notice is delivered, or on the third business day following the day on which such notice is mailed, and if delivered by facsimile, provided receipt is electronically confirmed at the time of transmission, as the case may be. Any party may, at any time, give notice in writing to the other parties of any change of address of the party giving such notice, and from and after the giving of such notice, the address therein specified shall be deemed to be the address of such party for the giving of notices hereunder.
ARTICLE 11 - GENERAL PROVISIONS
11.1 Agreement Binding
Any condominium corporation that is or becomes a party hereto shall enact all by-laws as are required by the Condominium Act to make this Agreement binding on it and on the lands subject to this Agreement.
11.2 Agreement not to amend Declarations or By-Laws
The condominium corporations covenants and agrees with the Declarant that they shall not amend (individually or collectively) their declarations or pass by-laws relating to the management, maintenance, repair and operation of the Driveway Entrance which are in any manner whatsoever inconsistent with the terms and conditions of this Agreement.
If any term, covenant or condition of this Agreement to any extend is held invalid or unenforceable, the remainder of this Agreement shall not be affected thereby and each term, covenant and condition of this Agreement shall be separately valid and enforceable to the fullest extent permitted by law.
This Agreement shall not be modified or amended except by instrument in writing signed by the parties or by their permitted successors or assigns.
11.5 Successors and Assigns
The provisions of this Agreement are intended to run with the lands benefited and burdened and each and every part thereof, and shall be binding on and ensure to the benefit of each respective successor in title thereto.
IN WITNESS WHEREOF the parties hereto have hereunto caused to be affixed their corporate seals, duly attested by their respective proper signing officers authorized in that behalf.
MAY TOWER DEVELOPMENTS LTD.
Peter Lee, President
I have the authority to bind the Corporation