Amended Shared Facilities Agreement
WHEREAS the board of directors may, by resolution, make, amend or repeal by-laws, not contrary to the Condominium Act, 1998 ('Act') or to the declaration, in accordance with section 56 of the Act;
AND WHEREAS the Toronto Standard Condominium Corporation No. 1431's (the Corporation") By-law No. 2, registered as Instrument No. D844404 on May 1st, 2002, authorized the Corporation to enter into a shared facility agreement with Metropolitan Toronto Condominium Corporation No. 1256, in the form attached in the schedule thereto (Shared Facilities Agreement);
AND WHEREAS the respective parties to the Shared Facilities Agreement have determined that It is in the best interest of their respective condominium corporations to introduce amendments to the Shared Facilities Agreement;
AND WHEREAS the Shared Facilities Agreement was amended by an agreement dated on the 3rd day of May, 2002 (the "Amended Shared Facilities Agreement");
THEREFORE BE IT ENACTED as a by-law of the Corporation as follows:
- That By-law No. 2 of the Corporation, registered as Instrument No. No. D844404 on May 1st, 2002, shall be repealed in its entirety and replaced with the following.
- That the Corporation does hereby ratify the Amended Shared Facilities Agreement in the form attached hereto as Schedule 'A'.
- That the Corporation be and is hereby authorized to execute any further documents or other assurances as may be required from time to time In order to give effect to the provisions of the Amended Shared Facilities Agreement.
- That all terms, provisions arid conditions set out in the Amended Shared Facilities Agreement are hereby authorized, ratified, sanctioned and confirmed.
- That the president or secretary of the Corporation was and is hereby authorized to execute on behalf of the Corporation, the Amended Shared Facilities Agreement, any further required ratification of those agreements, together with all other documents or instruments which may be required to give full force and effect to either or both of the Amended Shared Facilities Agreement, including without limitation, all instruments or affidavits which may be required In order to register such ratification on title and all such documents and Instruments are hereby authorized, ratified, sanctioned and confirmed.
Schedule "a" Shared Facilities Agreement
This Agreement made as of the 3rd day of May, 2002.
MAY TOWER DEVELOPMENTS LTD., a corporation incorporated under the laws of the Province of Ontario, (hereinafter called the "Declarant"),
OF THE FIRST PART,
- and -
METROPOLITAN TORONTO CONDOMINIUM CORPORATION NO. 1376, a condominium corporation created by the registration of a declaration and description on the 31"day of May, 2001, in the Land Registry Office for the Land Titles Division of Metropolitan Toronto (No. 66) as Instrument No.E417663 (hereinafter called "Retail Structure"), OF THE SECOND PART,
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 "Building A" or the "Adjacent Condominium Corporation"), OF THE THIRD 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 "Corporation" or "this Corporation" or "Building B"), OF THE FOURTH PART,
WHEREAS the Declarant has constructed Building A and Building B, and is the declarant .of this Corporation and of the Adjacent Condominium Corporation, and has caused Metropolitan Toronto Condominium Corporation No-I256 to enter into this agreement as contemplated in Section 13.6
AND WHEREAS the Corporation and the Adjacent Condominium Corporation are hereinafter collectively referred to as the "Two Condominium Corporations" or the "Condominium Corporations";
AND WHEREAS ownership of the recreational facilities, which include a billiard room, an exercise room, a children's playroom and table tennis facility, a games room, an indoor swimming pool and an adjacent whirlpool area, separate men's and ladies' steam rooms and showers in Building A registered as Recreational Unit 1, Level 1, according to Metropolitan Toronto Condominium Plan No. 1256, guest suites, being Units I and 2, Level 2, according to of Toronto Standard Condominium Plan No. 1431, a library/lounge, card rooms, a multi-purpose room and gymnasium,, a party room with kitchen facilities and a conference/boardroom being collectively, Unit 159, Level I, Units 3, 4, 5, and Unit 120 on Level 2, according to Toronto Standard Condominium Plan No. 1431, which facilities, together with sixteen (16) surface visitor parking spaces comprised within Units 2, 3 and 4 on Level 1, of Metropolitan Toronto Condominium Plan No. 1256 arid a service unit being Unit 1, Level 1, Toronto Standard Condominium Plan No. 1431 which is intended to be used as a garbage storage and pick up area, are hereinafter collectively referred to as the "Shared Facilities Units", are intended to be shared between the two condominium corporations as tenants in common in accordance with each Corporation's Proportionate Share therein as hereinafter defined
AND WHEREAS the Condominium Corporations and the Declarant have also entered into this Agreement on a non-profit basis for the purposes of providing for the mutual maintenance and cost sharing of the Common Interior Roadway, the Underground Garage, the Shared Facilities Units and the Shared Servicing Systems which will serve and benefit this Corporation and the Adjacent Condominium Corporation;
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 hi fact.
In this Agreement the following terms shall have the following meanings:
(a) "Acceptable Standard" shall mean:
(i) with respect to any equipment, device, apparatus or system: efficient and safe operating capability for its intended purpose(s) in accordance with the standards specified by its manufacturer / supplier and prescribed by all applicable laws, regulations and bylaws;
(ii) with respect to any landscaped/grassed area: appearing to be properly cultivated/tended, suitable for its intended purpose(s) and in compliance with all applicable laws, regulations and by-laws;
(iii) with respect to any structural or other non-operating element, part, or component good repair, having regard to the standards maintained by a prudent owner of a comparable building of comparable age;
(b) "Act" shall mean the Condominium Act, 1998, as amended;
(c) "Assets of the Committee" shall mean all appropriate equipment, chattels and materials that are required for use in connection with the maintenance, operation and repair of the Shared Facilities;
(d) "Common Interior Roadway" shall mean and include the road and driveways, the turning circle, street lighting and walkways within the Building A Lands and the Building B Lands which are used for ingress and/or egress to and from the Buildings;
(e) "the Condominium Corporations" shall mean Metropolitan Toronto Condominium Corporations Nos. 1256 and 1431 and the condominium corporation to be registered within the Building A Lands;
(f) "Retail Structure" shall mean the units and common elements of Metropolitan Toronto Condominium Plan No. 1376;
(g) "Other Shared Common Element Areas" shall mean the outdoor landscaped areas within the common elements of the Two Corporations, including hard and soft landscaping features within the taming circle driveway entrance to the Buildings, and any other areas that the Two Corporations decide to designate in this category by separate memorandum of agreement;
(h) "Shared Costs" shall mean the costs involved in operating, maintaining, repairing, replacing and inspecting the Shared Facilities, and the respective costs to be borne by each Condominium Corporation toward the total amount of the Shared Costs shall be referred to as its "Proportionate Share" and shall be determined as set out herein;
(i) "Shared Facilities" shall mean and include the Shared Facilities Units, the Common Interior Roadway, the Underground Garage, the other Shared Common Element Areas, the Shared Services and the Shared Servicing Systems.
(j) "Shared Facilities Committee" or the "Committee" shall mean the committee to be composed of two directors from each Condominium Corporation;
(k) "Shared Facilities Reserve Fund" shall mean that portion of the reserve fund maintained by each of the Condominium Corporations as part of their respective reserve fund requirements under the Act and that portion of the (total) reserve fund contribution required to be paid to the Committee from time to time by the Condominium Corporations, which funds are allocated to the major repair and replacement of the components comprising the Shared Facilities;
(l) "Shared Services" shall mean and include, without limitation, maintenance and repair, including renovation or reconstruction as necessary of the Shared Facilities to ensure that the same are and be will operated in accordance with Acceptable Standards, the maintenance, repair and renovation of all landscaped areas serving the Two Condominium Corporations, the management, maintenance, repair and renovation of the Underground Garage including cleaning of the garage (and the parking units), light bulbs/tubes/ballast replacement and line painting, the removal of snow/ice from the driveways and walkways serving the Two Condominium Corporations, and the maintenance and repair, in accordance with Acceptable Standards, of those parts of the energy management system, water main service. and pumps, sanitary drainage system, storm drainage system, fire line and sprinkler system and Bell Canada service situate in the below grade portions of the Buildings and the common elements other than any equipment (including connecting cables/conduits/pipes) benefiting solely the Building A Lands or solely the Building B Lands and which are practicably distinguishable from common service facilities (the "Shared Servicing Systems");
(m) "Underground Garage" shall mean and include, without limitation, the below grade parking structure serving the Two Condominium Corporations including the external walls and all supporting walls, pillars, columns and footings, the interior lighting, fire safety equipment, mechanical and electrical rooms, the garage slab and traffic topping, the garage door and entrance ramp, the electronic security gate aim controlling access thereto, driveways and exit stairwells, as such, in the registered descriptions of the Two Condominium Corporations and the garage roof membrane, wherever situate, within the Building A Lands and/or the Building B Lands.
Save and except as hereinafter specifically provided to the contrary, the capitalized terms used herein shall have the same meanings as are ascribed to them in the Act and in the declaration of Building A and in the registered declarations of the Two Condominium Corporations.
Article 2 - Easements
2.1 This Corporation's Easement to Building A for the Common Interior Roadway
This Corporation grants, transfers and conveys an easement and right in nature of an easement in, on, over and along those parts of the Common Interior Roadway as are situate on the Building B Lands for the purposes of vehicular and pedestrian access, egress and maintenance in favour of the owners and occupants of Building A such as to serve and benefit the Building A Lands.
2.2 The Adjacent Condominium Corporation's Easement to Building B for the Common Interior Roadway
The Adjacent Condominium Corporation grants, transfers and conveys an easement and right in nature of an easement in, on, over and along those parts of the Common Interior Roadway within the Building A Lands for the purposes of vehicular and pedestrian access, egress and maintenance in favour of the owners and occupants of Building B such as to serve and benefit the Building B Lands.
2.3 This Corporation's Easement to Building A for the Underground Garage
This Corporation grants, transfers and conveys an easement and right in nature of an easement into; on, over, within and along those parts of its own common elements comprising a portion of the Underground Garage for the purposes of vehicular and pedestrian access, egress and maintenance in favour of the owners and occupants of Building A such as to serve and benefit the Building A Lands.
2.4 The Adjacent Condominium Corporation's Easement to Building B for the Underground Garage
The Adjacent Condominium Corporation grants, transfers and conveys an easement and right in nature of an easement into, on, over, within and along those parts of its own common elements Comprising a portion of the Underground Garage for the purposes of vehicular and pedestrian access, egress and maintenance in favour of the owners and occupants of Building B such as to serve and benefit the Building B Lands.
2.5 This Corporation's Easement to Building A for the Shared Servicing Systems
This Corporation grants, transfers and conveys an easement and right in nature of an easement in, on, over, under, through and along those parts of its own common elements as may be necessary for the purpose of constructing, maintaining, operating, repairing, replacing and inspecting the Shared Servicing Systems including underground storm and sanitary sewer pipes, water pipes and lines and electrical conduits, cable and telephone wires and lines and gas lines, together with all appurtenances thereto in favour of the Adjacent Condominium Corporation as may from time to time be necessary or convenient to provide adequate storm and sanitary sewers, water services, electrical cable and/or. telephone services or gas service to any portion of the Building A Lands for the purposes of servicing and benefiting such Lands.
2.6 The Adjacent Condominium Corporation's Easement for the Shared Servicing Systems
The Adjacent Condominium Corporation grants, transfers and conveys an easement and right in nature of an easement in, on, over, under, through and along those parts of its own common elements as may be necessary for the purpose of constructing, maintaining, operating, repairing, replacing and inspecting the Shared Servicing Systems including underground storm and sanitary sewer pipes, water pipes and lines and electrical conduits, cable and telephone wires and lines and gas lines, together with all appurtenances thereto in favour of this Corporation as may from time to time be necessary or convenient to provide adequate storm and sanitary sewers, water services, electrical cable and/or telephone services or gas service to any portion of the Building B Lands for the purposes of servicing and benefiting such Lands.
2.7 This Corporation's Easement to Building A over other Shared Common Element Areas
This Corporation grants, transfers and conveys an easement and right in nature of an easement in, on, over, under, through and along those parts of its own common elements as may be necessary or convenient to carry on maintain and operate the Shared facilities including, without limitation, exterior landscaping, snow and ice removal in favour of the Adjacent Condominium Corporation such as to serve and benefit the Building A Lands.
2.8 The Adjacent Condominium Corporation's Easement to Building A over other Shared Common Element Areas
The Adjacent Condominium Corporation grants, transfers and conveys an easement and right in nature of an easement in, on, over, under, through and along those parts of its own common elements as may be necessary or convenient to carry on, maintain and operate the Shared Services including maintenance of exterior landscaping, mow and ice removal in favour of this Corporation such as to serve and benefit the Building B Lands.
2.9 Duty to Exercise Easements Prudently
In exercising their rights to any easement, right or license granted in this Agreement or pursuant to the registered declarations of the Two Condominium Corporations, the Committee or the party to this Agreement exercising them shall act in a prudent and reasonable manner so as to minimize undue interference occasioned to the other party burdened by such easement, right or license.
2.10 Further Assurances
By entering into this Agreement, each of the parties hereto agrees to execute without delay all further assurances, easement agreements, indentures or transfers, if required, or other documents necessary or required to carry out the true intent of these presents. Without limiting the generality of the foregoing, the parties hereto further covenant and agree to execute without delay all such further documents, instruments and agreements as may be required in order to specify the location of any of the easements herein created and, in so doing, to retransfer any such easements which retransfer identifies the specific location of such easement being so granted hereby and also to realize the boundaries of the various easements herein referred to so that the same align more accurately with the final location of the Common Interior Roadway, the Underground Garage, the Shared Servicing Systems and Other Shared Common Element Areas as actually installed and/or constructed.
2.11 Additional Easements
In the event it is determined by any of the parties hereto or any of their successors that any new easement or right is required and is essential for the purpose of maintaining, operating, repairing, replacing and inspecting or gaining any required access to any new Servicing Systems which are essential to service the Building A Lands or the Building B Lands, then the party over whose lands the easement or right is required (the "grantor") shall execute without delay all grants, conveyances, instruments and assurances as are required to grant and convey or transfer same, provided that the lands of the grantor of such easement or right shall not be required to grant same if its lands shall be materially diminished thereby, or if same would interfere with the use and enjoyment of any amenity or installation on its lands, and provided further that the grantee of such easement or right financially secures to the grantor to its satisfaction, reasonably exercised, its liability to bear all costs, expenses and damages, direct or indirect, costs to the grantor or to its lands as a result of the grant herein contemplated which the grantee hereby covenants and agrees to do, and further that such grantee provides such detailed plans and specifications showing the location and specifications respecting such service to be installed or created.
Similarly, if this Corporation, the Adjacent Condominium Corporation and/or the Declarant as owner of adjacent lands to be developed for commercial and/or residential purposes, being described as the whole of Block 1 according to Plan 66M-2288, registered in the aforesaid Land Registry Office (the "Future Development Area"), and/or the Declarant as the owner of the Retail Structure requires any new easement or right for the purpose of maintaining, operating, repairing, replacing and inspecting or gaining any required access to any servicing systems or further accesses to and from its respective properties or which are essential to service the Building A Lands, the Building B. Lands, the Future Development Area, or the Retail Structure, the foregoing provision requiring the party over whose lands the easement or right is required to grant such easement, shall also apply to the owner(s), from time to time, of the Future Development Area and/or the Retail Structure, whose lands shall be benefited and burdened by this reciprocal covenant.
2.12 Reciprocal Benefit and Burden
The continued enjoyment by any party hereto to any easement, right or privilege hereby granted or referred to shall be dependent or conditional upon that party contributing to the cost and expense of the operation, maintenance, repair, replacement and inspection of that easement, right or privilege in accordance herewith. The failure by any party to so contribute according to its Proportionate Share of such cost or expense thereof shall, at the option of the other party, lead to the suspension of its enjoyment of such easement, right or privilege. The benefits to this Corporation and the Adjacent Condominium Corporation hereunder arising from any term or provision of this Agreement shall be construed as interdependent with the requirement by such Corporation to perform its obligations hereunder.
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.
Article 3 - Ownership And Use Of The Shared Facilities
3.1 The Declarant
Until the Transfer Date specified in Article 3.6 hereof, the Declarant shall own and control the Shared Facilities Units on behalf of this Corporation and on behalf Of the Adjacent Condominium Corporation in respect of the Building A Lands.
3.2 Transfer of Ownership
With the sole exception of the service unit being Unit 1, Level 1, of Metropolitan Toronto Condominium Plan No. 1256 the Declarant and the Condominium Corporations hereby covenant and agree with one another to accept the transfer of ownership of the Shared Facilities Units by the Declarant to the Condominium Corporations, pro rata, in accordance with their respective Proportionate Shares therein (and as defined in Article 3.7 below) not later than the Transfer Date as described in Article 3.6 hereof. With respect to the service unit, the Condominium Corporations agree with the Declarant that Metropolitan Toronto Condominium Corporation No. 1376, representing the Retail Structure, shall receive the conveyance of a one-third (1/3) pro rata co-ownership interest in the service unit, and may transport its garbage, including refuse/recycling material, to the pick up area within the service unit, subject to Metropolitan Toronto Condominium Corporation No. 1376 paying its pro rate (1/3) share of the costs of transporting and removing garbage from the service unit by Metropolitan Toronto Condominium Corporation No. 1256.
3.3 Proportionate Share of Shared Costs
As and from the date of its registration, the Condominium Corporations shall each pay their Proportionate Share of the Shared Costs.
3.4 Use of the Shared Facilities by the Declarant
Notwithstanding the transfer of ownership of the Shared Facilities Units from the Declarant to the Condominium Corporations on the Transfer Date set forth in Article 3.6 hereof, until completion of the Declarant's sales program involving the conclusion of the sales of all dwelling units in Building A and Building B, the Declarant, its sales staff, agents, employees and invitees shall have a continued right of access to inspect and view the recreational facilities and to use, without fee or charge, any portion of the Shared Facilities as part of its marketing/sales program including a sales/rental/administrative office, advertising signage and displays, and model suites for display purposes in such locations in Buildings A, and B as the Declarant may select.
The Declarant shall not be charged for the use of such space nor for any utility service supplied thereto, nor shall either of the Two Condominium Corporations (or anyone else acting On their behalf) prevent or interfere with the Declarant's right of access to inspect, view and use the Shared Facilities in the manner aforesaid, it being acknowledged and understood that it is in the ultimate best interests of all parties to this Agreement that the Declarant successfully complete its marketing/sales programs in this overall project including the Retail Structure and the Future Development Area.
3.5 Restricted Use
Subject to Article 3.4 above, and in accordance with the herein stated intention of the parties that those parts of the Shared Facilities designated for recreational use are being provided to and for the exclusive use of the residents of Building A and Building B, and their guests, no person other than a resident and a guest or guests accompanied by such resident shall be entitled to use the recreational facilities and, for the purpose of this paragraph, a resident shall not include an owner of a dwelling unit, a parking or locker storage unit who has leased the unit and has thereby assigned the right to use and enjoy the unit and the common elements in either Building A or Building B (including the recreational facilities).
3.6 Transfer Date
Notwithstanding anything provided iii this Agreement to the contrary, the control over the use and maintenance of the Shared Facilities shall be governed by the Declarant until the earliest of:
- 120 days following the date upon which this Corporation has been registered pursuant to the Act; or
- at the sole discretion of the Declarant, a date specified by the Declarant prior to the date referred to sub-paragraph (a) above;
the earliest of the foregoing dates being hereinafter referred to as the "Transfer Date".
In accordance with Article 3.5 hereof and until the Transfer Date, the Declarant shall have the right to establish reasonable hours of use and permitted uses of the recreational facilities and shall prepare and submit to this Corporation (not less than once annually) for incorporation in this Corporation's overall budget a separate budget category within the Shared Facilities Budget outlining the costs of providing and maintaining utility services, capital reserves, equipment and staff, as well as the costs of operating, maintaining and repairing the Shared Facilities, all in keeping with the principles set forth in Article 5.6 hereof, which shall constitute the then applicable Shared Costs of which each Condominium Corporation shall be responsible for its Proportionate Share (as herein defined).
The Condominium Corporations hereby covenant and agree with one another and with the Declarant that they shall adopt and be bound by the Shared Facilities Budget as part of their overall budgets, and each Condominium Corporation shall pay and be responsible for its Proportionate Share of the Shared Costs as set forth in such Shared Facilities Budget.
3.7 Proportionate Share
Each Condominium Corporation's proportionate interest in the recreational facilities, which shall be the same as its Proportionate Share of the total costs of the operation, maintenance, management, repair, and replacement of the Shared Facilities (herein referred to as its "Proportionate Share") shall be calculated based upon the proportion of the number of residential units in Building A, and the number of residential units in Building B, those numbers relate the total number of residential units in both the buildings, and the Two Condominium Corporations acknowledge and agree that the resulting Proportionate Share of each of the aforesaid parties shall be calculated as follows:
MTCC No. 1256 (Building A) at 49%
TSCC No. 1431 (Building B) at 51%
3.8 Title to the Shared Facilities Units
Until completion by the Declarant of the sale of all units and common interests in Building A and Building B, each Condominium Corporation covenants and agrees not to sell, transfer, lease, charge or encumber its Proportionate Share of co-ownership in the Shared Facilities Units and, in any event, each Condominium Corporation agrees with the other that it shall not sell, transfer, lease, charge or encumber its Proportionate Share of ownership of said Units without the prior written consent of the other and as maybe required pursuant to the Act.
3.9 Garbage Pick-up
This Corporation hereby acknowledges and agrees with the Declarant, the Adjacent Condominium Corporation, and with Metropolitan Toronto Condominium Corporation No. 1376, being the Retail Structure located on the ground floor of Building A, that the City of Toronto has approved and designated an area behind Building B, being the service unit (Unit 1, Level 1, within Toronto Standard Condominium Plan No. 1431) as a designated pick-up area for garbage bins the serving the Condominium Corporations and the retail Structure together. Subject to the Adjacent Condominium Corporation and Metropolitan Toronto Condominium Corporation No. 1376 sharing, equally, to the extent of 1/3 each together with this Corporation, the costs of maintaining, repairing and replacing the outdoor garbage bins within the property of this Corporation, this Corporation acknowledges, accepts and agrees with the Adjacent Condominium Corporation and with the Declarant on behalf of Metropolitan Toronto Condominium Corporation No. 1376 that this facility shall be maintained at an Acceptable Standard for the use and benefit of the said parties and their successors and assigns.
It is hereby acknowledged and agreed that this Corporation shall have reasonable discretion in maintaining, repairing, and replacing the outdoor garbage bins and in assessing the costs associated with maintenance and repair of this facility on its own behalf and on behalf of the Adjacent Condominium Corporation and the Metropolitan Toronto Condominium Corporation No. 1376, and that each party shall share equally to the extent of one-third (1/3) each, of the costs of maintaining repairing and replacing this facility.
Article 4 - Compliance With Development Agreements and Zoning Bylaws
4.1 Compliance with Zoning By-Laws
The parties hereto acknowledges that the Building A Lands and the Building B Lands may be subject to a number of agreements, regulations, ordinances or acts in favour of governmental authorities, or may further be subject to a single, site specific restricted area by-law, under which each of the Building A Lands, the Building B Lands and the adjacent lands owned or controlled by the Declarant within the overall project (which includes the Retail Structure and the Future Development Area) must contain certain services, facilities and installations in order for this project as a whole to remain in conformity to such by-law.
Accordingly, each of the parties hereto agrees to abide by the provisions of these agreements, regulations, ordinances, acts or by-laws which affect the Building A Lands, the Building B Lands and the (remaining) lands within the overall project, and to do all things necessary to keep them in full force and effect and in good standing, including maintaining all required services, facilities and installations on their lands as are required by any such by-law, and further agrees to execute any specific easements required to be granted to such authorities in accordance therewith, and to further use their best efforts to effect the renewal or replacement of any such agreements as may be necessary or desirable, all with the object and purpose of permitting and with a view of not hindering or preventing the completion and the continued use and enjoyment of this overall project as an integral whole and of each party's respective lands including those buildings and installations situate thereon and/or attached thereto.
4.2 Compliance with Development and Subdivision Agreements
The Declarant, as owner of both the Retail Structure and the Future Development Area, and the Two Condominium Corporations covenant and agree to maintain, repair and replace if necessary, from time to time, during the term hereof, according to the Acceptable Standard, and after its initial installation by the Declarant, all works, facilities and installations described in any subdivision, development, condominium, site plan or similar agreement entered into with the Corporation of the City of Toronto and/or any other relevant governmental authority dealing with any aspect of the development of the Building A Lands, the Building B Lands and the (remaining) lands within the overall project, and as are situate within their respective properties and/or which the Declarant covenanted to undertake, provide and/or maintain pursuant to the terms of any such agreements.
4.3 Indemnification to Declarant Respecting Compliance with Agreements
Each of the Condominium Corporations agrees that it will indemnify and save the Declarant harmless from any cost, loss, expense, damage or liability which the Declarant may suffer as a result of any breach by either of them of their covenant to so maintain, repair and replace any of the works, facilities and installations referred to in any subdivision, development or site plan agreement affecting the Building A Lands and the Building B Lands.
4.4 Maintenance of Landscaping
Each of the Condominium Corporations covenants and agrees with the Declarant to maintain, repair and replace in a first class condition, after its initial installation by the Declarant, all those landscaping installations as shown on the plans and drawings prepared by the Declarant's landscapers, copies of which form part of the documents turned over to the Condominium Corporations in accordance with section 43 of the Act, as are contained within their respective properties and as constitute part of their respective common elements, and to contribute their respective Proportionate Share towards the costs and expenses of maintaining, repairing and replacing in a first class condition the other Shared Facilities, as hereinbefore provided.
4.5 Visitor Parking Spaces
The Declarant has constructed the Visitor Parking Units comprising sixteen (16) visitor parking spaces adjacent to the turning circle driveway located near the entrances of Buildings A and B, including two parking spaces allocated for the exclusive use of physically challenged persons. Guests of residents of either Building A or Building B may park in the Visitor Parking Units. No unit owner or tenant of a residential unit in Building A or Building B shall park on any Visitor Parking Unit; provided that the Declarant, its sales and management personnel, agents, sub-trades, invitees and prospective purchasers may park motor vehicles within the visitor parking area until such time as all units in Buildings A and B have been sold and conveyed by the Declarant.
Article 5 - Shared Facilities Committee
5.1 Shared Facilities Committee
The parties hereto hereby agree that the Shared Facilities which are used and enjoyed by each of the said parties shall be operated, maintained, repaired, improved, altered and replaced by the Shared Facilities Committee on behalf of the Two Condominium Corporations as if the Two Condominium Corporations were really one condominium corporation and as if the Shared Facilities were common elements and assets of one condominium corporation. Each Condominium Corporation shall have representation by appointing two members to serve on the Committee who shall also be directors or officers of the Condominium Corporation. The Declarant may, in its sole discretion, prior to the Transfer Date, establish an interim committee on the same principles as are set forth herein for the Committee with representation from this Corporation.
The Committee shall meet from time to time, but not less than quarterly, for the purposes hereinafter set out. Unless written notice is dispensed with by the written consent of each member of the Committee, at least seven (7) days written notice of every meeting of the Committee shall be given to the members thereof by the Secretary of the Committee.
At any meeting of the Committee, a quorum shall consist of the majority of members thereof, and except as may be expressly provided herein, all decisions of the Committee shall be by a majority vote and the Chairman shall not have an additional or casting vote. If thirty (30) minutes after the time appointed for the holding of any meeting of the members of the Committee, a quorum is not present, the meeting shall stand adjourned to the same time on the corresponding day of the next following week. Any member of the Committee who cannot attend any meeting of the Committee may appoint a proxy to attend and vote at the meeting in his place. The proxy shall be an officer of the Corporation represented by such member. To be effective, the proxy must be in writing and must state the office held by the proxy appointed to the board of directors of the Condominium Corporation.
5.4 Term of Office
Members of the Committee shall be appointed by their respective board for a term of one (1) year but may be removed before the expiration of their term by resolution of their appointing board. Any vacancy on the Committee occurring as a result of the resignation by a member or the resolution of the appointing board shall be filled for the period of the unexpired term of the member who has resigned or who has been so removed by the board who had originally appointed such member.
At the first meeting of the Committee following the Transfer Date, the Committee shall elect from its members the following officers:
The Chairman shall, when present, preside at all meetings of the members of the Committee and shall be charged with the general supervision of the business and affairs of the Committee;
The Secretary shall give or cause to be given all notices required to be given to the members of the Committee and shall keep proper books and minutes of all proceedings at such meetings of the Committee and shall be the custodian of all books, papers, records, documents and other instruments belonging to the Committee;
The Treasurer shall keep or cause to be kept full and accurate books of account in which shall be recorded all receipts and disbursements pertaining to the Shared Facilities, and under the direction of the Committee shall control the deposit of money and the disbursement of funds and shall render to the Committee whenever required of him, an accounting of all his transactions as Treasurer and the financial position of the Shared Facilities.
The Committee may elect from its members (who may hold more than one office) such other officers as it may deem advisable to assist the Committee in carrying out its function.
5.6 Authority and Duties
Subject to the provisions of the Act and any applicable provisions set forth in the declaration of each Corporation, the Committee shall have full authority, power and responsibility over all matters relating to any of the Shared Facilities, and the Assets of the Committee used, shared and enjoyed by the Two Condominium Corporations.
The functions and duties of the Committee shall be to maintain, replace, repair, inspect and operate the Shared Facilities including, without restricting the generality of the foregoing:
(i) establishing rules of conduct and procedures with respect to the operation, use and maintenance of the recreational facilities;
(ii) arranging for the provision of all requisite utility services, i.e., heat, hydro and water, recreational programs and staff for the Shared Facilities. The parties acknowledge that the Shared Facilities including the Underground Garage (lighting), and the four recreational units in Buildings A and B are not separately metered for heat, hydro and water. Accordingly, each Corporation shall estimate, in an equitable manner, that portion of any bulk service invoice attributable to the Shared Facilities located within its own condominium plan for the purpose of establishing, fairly, this component of the Shared Facilities Budget, and the same rationale shall apply to other cost factors including, but not limited to, liability insurance premiums to be allocated to the use of the recreational facilities and, in particular, the indoor swimming pool;
(iii) ensuring that the Shared Facilities including the Common Interior Roadway, the Underground Garage and Other Shared Common Element Areas including the grounds, landscaping, turning circle driveway, the Visitor Parking Units and pedestrian walkways are maintained in first class condition and to an Acceptable Standards;
(iv) maintaining, repairing and replacing the roads, curbs and signage of the Common Interior Roadway in similar first class condition;
(v) operating, managing, maintaining, servicing, repairing and replacing the Shared Servicing Systems so as to minimize the interruption of service to either Corporation;
(vi) the hiring, management, direction and disciplining of any recreation centre staff, garage security personnel and all grounds maintenance personnel, landscaping and snow removal contractors, service and repairmen who may be engaged or employed by the Committee from time to time to carry out the functions of the Committee;
(vii) representation of and liaison agent for the Two Condominium Corporations with respect to any matters relating to the Shared Facilities with any municipal, provincial or other authority, and with the Declarant;
(viii) the preparation and furnishing to the Two Condominium Corporations, not later than the first day of October in each year, the Shared Facilities Budget including an allocation for the Shared Facilities Reserve Fund for the following calendar year, setting forth by categories the Committee's best estimate of all expenses for the maintenance, repair and replacement of the Shared Facilities for the next calendar year;
(ix) the preparation of an appraisal, from time to time, of all parts of the Shared Facilities and Assets of the Committee in order to determine the reserve fund requirements for major repair and replacement of the Shared Facilities and Assets of the Committee;
(x) arbitrating or otherwise dealing with all inter-party disputes, infractions of by-laws, rules and regulation5 and municipal or other ordinances and dealing with any complaints, questions or suggestions with respect to the Shared Facilities or any matters relating thereto;
(xi) whenever in the opinion of the Committee, any change from the expenditures forecast in the Budget makes it desirable to do so, to submit to each Corporation a supplementary budget covering the expenses of the maintenance and repair of the Shared Facilities for the then remaining portion of the calendar year;
(xii) the deposit of monies received from each Condominium Corporation together with any other income and receipts in a separate trust account to be maintained by the Committee. All such monies shall thereafter be held in trust by the Committee and be used to:
a. make payments of all accounts approved and incurred by or on behalf of the Committee;
b. repair and maintain or cause to be repaired and maintained those parts of the Shared Facilities which require repair and maintenance;
c. purchase appropriate equipment, chattels and materials that have been approved by the Two Condominium Corporations in accordance with this Agreement; and
d. whenever a surplus arises, such surplus shall be applied as a credit on the next year's budget. The Committee shall inform each party of the credit and obligation of such party to contribute further monthly assessments which shall be adjusted accordingly.
(xiii) the keeping of accurate accounts of the financial transactions involved in the management of the Shared Facilities and in respect of any proper expenditures from the Shared Facilities Reserve Fund and to render to each of the parties hereto quarterly statements of income and expenditure with respect thereto and to keep such accounts open for inspection by any of the parties hereto at all reasonable times and to maintain such accounts in accordance with generally accepted accounting principles;
(xiv) the opening and maintenance at a chartered bank or trust company, as the Committee may designate, of an account for the operation of the Shared Facilities including the designation by resolution of the Committee of such persons or officers of the Committee authorized to make, sign, draw, accept, endorse, negotiate, deposit or transfer any cheques, notes, drafts and orders relating to the said trust account;
(xv) the engagement of any professional services, consultations, opinions, reports and advice with respect to the Shared Facilities in any matters relating thereto, provided that the appointment of an auditor to review the financial statements maintained by the Committee shall be the same as the auditor reviewing the financial statements for the Two Condominium Corporation and that, failing agreement by the members of the Committee upon the appointment of such auditor, the auditor shall be the auditor for this Corporation.
Notwithstanding the authority and duties of the Shared Facilities Committee as outlined in Article 0 hereof, in the event that any matter, question or proposal shall come before the Committee which:
(a) creates or may create any benefit or advantage which may be enjoyed by this Corporation to the detriment of the Adjacent Corporation, or vice versa, or which would create a cost or disadvantage to the other Corporation; or
(b) creates or may create any cost, disadvantage or otherwise onerous impact not shared by the Two Corporations in accordance with each Corporation's Proportionate Share; or
(c) any two (2) members of the Committee shall request that the matter in question be referred to a full meeting of the combined boards of directors of the Two Condominium Corporations for discussion and disposition;
such matter shall not be dealt with by the Committee but shall be disposed of at a combined meeting of the boards of directors of the Two Condominium Corporations. Any such meeting shall be called in accordance with the provisions hereof for the calling of a meeting of the Committee. At any such meeting of the combined boards of directors of the Two Condominium Corporations, any resolution or matter coming before the meeting shall only be passed, approved and consented to by a governing vote of the majority of directors in attendance at the meeting in the same manner as if the directors of the Two Condominium Corporations were directors of a single condominium corporation, and the minimum quorum for such vote shall be a majority of the directors being present from each Corporation. In the event of a tie vote, then the matter shall be deemed to be disallowed unless the matter-involves the breach of an express duty of the Committee as hereinbefore set out, and the matter in dispute (or for which there is no consensus) shall be referred to mediation/arbitration in accordance with Article ii hereof for resolution.
5.8 Substantial Change
No substantial alteration, improvement or renovation or any substantial addition to the Shared Facilities or any Assets of the Committee as contemplated under Section 97 of the Act, may be effected by the Committee or any of its officers without the proper resolutions being passed by each Corporation in accordance with Section 97 of the Act For the sake of clarity this provision shall not be construed by any member of the Committee to delay or hinder the repair and replacement, both before and after damage, of any part of the Shared Facilities.
5.9 Duty to Conform
Each Condominium Corporation hereby covenants and agrees with the other Corporation that it shall not amend its declaration, pass by-laws or rules governing the management, maintenance, repair and operation of the Shared Facilities which are in any manner whatsoever inconsistent with the terms and conditions of this Agreement. Each Condominium Corporation shall be under a further duty to pass only those rules and regulations respecting the management, maintenance and use of the Shared Facilities that are adopted and recommended to it by the Committee.
5.10 Service Contracts
All contracts for services, supplies and materials for or in connection with the Amenities or any of them shall be executed by each of the parties hereto unless the parties have appointed, collectively an attorney or agent for such purpose who may but need not be one or more officers of the Committee.
5.11 Liability Insurance
The members and officers of the Shared Facilities Committee and the Committee itself shall be insured against personal liability respecting errors and omissions arising from or in connection with the performance of their duties hereunder at the cost thereof borne by each of the parties hereto in accordance with its Proportionate Share or contribution toward the costs of maintaining the Shared Facilities, and the Committee shall be indemnified jointly and severally by each of the parties hereto. No compensation (save for out of pocket disbursements) shall be paid to members of the Committee.
Article 6 - Payment, Assessment & Collection Of The Shared Costs
6.1 - Proportionate Share
All expenses, charges and costs relating to the maintenance, repair, replacement and inspection of the Shared Facilities shall be paid and any surplus allocated in accordance with each Condominium Corporation's Proportionate Share.
6.2 Installment Payments
Upon receipt of the Shared Facilities Budget for the next ensuing calendar year, each Condominium Corporation shall pay to the Committee in equal monthly installments on the first day of each and every, month next following the delivery of such Budget, until such time as a revised or supplementary Budget shall have been delivered to each of the parties hereto, an amount equal to one twelfth (1/12) of its Proportionate Share or contribution of the total of such Budget. In the event that the Budget is increased or decreased from time to time by the Committee, the monthly payments required to be made by each of the parties hereto to the Committee shall be increased or decreased accordingly.
6.3 Spending Limit
Where the cost of repairs or work to be performed or the acquisition of equipment or chattels relating to the Shared Facilities does not, in the aggregate, exceed the Budget provision for that particular category, the Committee may proceed to carry out the repairs or have the work performed or purchase the appropriate equipment or chattels; otherwise, any higher contemplated expenditure in excess of the greater of Five Thousand Dollars ($5,000) or two and one half per cent (2 1/2%) of the then Shared Facilities Budget for such expenditure (in the aggregate) shall require the prior approval of each of the parties hereto unless the nature of the repair or the work to be performed can be reasonably considered to be of an. emergency nature, the failure of which would likely result in a hazardous situation causing personal injury, interruption of services or causing damage to the Shared Facilities or unless such expenditure is required in order to ensure that the parties hereto comply with the zoning by-law, any development agreement affecting the site, and any governmental by-law, ordinance or regulation.
6.4 Additional Assessment
Subject always to the expenditures being authorized in accordance with this Agreement, any expenditures not contemplated in the Budget prepared by the Committee or any expenditures in excess of those expenses budgeted for by the Committee and for which the Committee shall not have sufficient funds, shall be paid by each of the parties hereto in accordance with its Proportionate Share or contribution. Such payment shall be made to the Committee within thirty (30) days after delivery by the Committee to each party hereto of a statement of such extraordinary expenditures and/or deficiency.
6.5 Shared Facilities Reserve Fund
Each Corporation, upon receiving a copy of the periodic appraisal for the Shared Facilities Reserve Fund and the Shared Facilities Budget including an allocation toward the Shared Facilities Reserve Fund account, shall include in their respective Budgets for their Proportionate Share or contribution hereunder an amount that, calculated on the basis of the expected major repair and replacement cost and life expectancy of things comprising the Shared Facilities and the Assets of the Committee are reasonably expected to provide sufficient funds for the expected major repair and replacement of the Shared Facilities and Assets of the Committee. The parties hereto shall open and maintain at a chartered bank or trust company a separate account designated as the "Shared Facilities Reserve Fund Account" in the names of the Two Condominium Corporations and shall designate by resolution of the respective boards of directors such persons or officers of the Committee authorized to make, assign, draw, accept, endorse, negotiate, deposit or transfer any cheques, notes, drafts and orders relating to said trust account.
6.6 Lien Provision
In the event that either Condominium Corporation (the "defaulting party") shall be in default in payment to the Committee of its monthly assessment for the maintenance of the Shared Facilities, or in payment to the Committee of any extraordinary expenditures set out above, such that the remaining Corporation is required to contribute the defaulting party's Proportionate Share or contribution, the Contributing Corporation (the "creditor party") shall have a lien to secure the payment of such sum of money together with interest thereon calculated from the date of default until the receipt of payment at the rate of four per cent (4%) above the prime lending rate charged from time to time by the Royal Bank of Canada to its most credit worthy customers, plus all reasonable costs incurred by the creditor party or parties in the preparation and filing of the lien, against the lands and assets of the defaulting party.
Such lien shall arise immediately upon the giving of notice by the creditor party to the defaulting party demanding payment of said sum of money by the defaulting party and asserting said lien against the lands arid assets of the defaulting party, by the filing of a caution or other notice that may be permitted according to the provisions of the Land Titles Act of Ontario or any amendments thereto, or such other legislation as may be applicable to the title of the lands (including the common elements) of the defaulting party from time to time.
The lien shall be enforceable in the same manner as a mortgage in default pursuant to the provisions of the Mortgages Act of Ontario, and any other applicable statutory provision or common law or equitable principle applicable thereto. In the event the Land Registrar-requires any creditor party seeking to enforce such lien or charge against the registered title of the lands intended to be secured thereby, to apply to a court of competent jurisdiction for an order, direction, advice or authorization prior to such Land Registrar allowing the registered title of such lands to be amended as a result, such creditor party seeking to enforce such mortgage or charge granted to it hereby, shall forthwith apply to such court for any such required order, direction, advice or authorization and the defaulting party hereby consents to any such application so being made for this purpose.
Any monies arising from any permitted sale of those lands encumbered by the lien or charge granted pursuant to this Article 6,6 shall be applied in the first place, to pay and satisfy the costs and charges of preparing for and making any sale as aforesaid, and all other costs and charges which may be incurred in and about the execution of any of the duties thereby resulting on the party enforcing the lien or charge, and in the next place, to pay and satisfy such defaulting party's Proportionate Share or contribution towards the costs or expenses required to be paid by this Agreement, and interest thereon which such defaulting party was required to pay in accordance with this Agreement, and finally to pay the surplus, if any, to such defaulting party or to its successors and assigns.
Article 7 - Insurance
7.1 Minimum Coverage
The Two Condominium Corporations agree to obtain and maintain public liability insurance with respect to incidents or occurrences upon or within the Shared Facilities providing a minimum coverage of Five Million Dollars ($5,000,000) per occurrence, together with fire and major perils insurance sufficient to cover one hundred per cent (100%) of the repair and/or replacement costs of all property contained within the Shared Facilities.
7.2 Insurance Trust Agreement
Each Corporation agrees to enter into and keep in good standing an insurance trust agreement in accordance with its declaration, which agreement shall either generally or specifically contain provisions regarding the manner in which insurance proceeds are to be distributed when arising from damage caused to the Shared Facilities or any of them. Each Corporation shall, upon request of the other Condominium Corporation, furnish to the other Condominium Corporation an executed copy of such agreement.
7.3 Proceeds of Insurance
Each Corporation agrees, subject to the provisions set forth in section 42 of the Act, to apply any insurance proceeds paid under its insurance policy and to direct the insurance trustee to pay any such proceeds towards the repair and/or replacement of the Shared Facilities following any occurrence of damage to the Shared Facilities.
7.4 Uninsured Loss or Damage
In the event damage occurs to any part of the Shared Facilities caused by any accident or mishap which is not covered by any policy of insurance whether prescribed or not under this Agreement and which is not caused by the willful act or negligence of either party to this Agreement, such damage shall be borne in the same proportion as those parties are then liable pursuant hereto, to pay for the operation, maintenance, repair, replacement and inspection of the Shared Facilities.
Article 8 - Self Help Remedy
8.1 Enforcement of Remedy
In the event that either Corporation (the "defaulting party") fails to perform any of its obligations under this Agreement, and the other Corporation (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/or interruption of services) 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 of expense required to be made by the defaulting party pursuant to this Agreement, including the performance of the required repair or replacement work in the hiring of contractors, and such requesting party shall be allowed entry on to the defaulting party's lands to achieve this purpose.
The defaulting party agrees to pay directly to the requesting party any cost or expense actually paid or incurred by the requesting party in performing the obligations of the defaulting party pursuant to this Agreement and any such cost or expense shall bear interest at the same rate as is provided for in Article 6.6 of this Agreement with respect to non-payment by any defaulting party of its Proportionate Share or contribution of the cost of maintaining the Shared Facilities.
8.2 Force Majeure
Whenever and to the extent any party hereto is prevented, hindered or delayed in the fulfillment of any obligation hereunder, or in the doing of any work or the making of any repairs or replacements by reason of force majeure, that party's liability to perform such obligation shall be postponed, and it shall be relieved from any liability in damages or otherwise for breach thereof, for so long as and to the extent such prevention, hindering or delay continues to exist.
The term "force majeure" means any war or other similar catastrophe, acts of the Queen's enemies, riot or insurrection, or the failure or inability of any governmental authority to supply any services or other public utility which serves the Two Condominium Corporations.
Article 9 - Certificate of Status
9.1 Certificate of Status
Each of the parties hereto agrees, at any time and from time to time during the currency of this Agreement, within Ten (10) days after written request, and the payment of a fee not in excess of One Hundred ($100) Dollars plus GST, by any other party to this Agreement (the "Requesting Party") to execute, acknowledge and deliver to the Requesting Party, a certificate stating:
(a) Whether this Agreement has been modified and if so, the nature of such modifications and confirming that it is in full force and effect
(b) Any existing default by any of the parties to this Agreement to its knowledge, and specifying the nature and extent thereof and in particular, whether each party has paid its proportionate allocated amount of costs or expenses it is required to pay hereunder, including whether any of the parties claims a lien or charge pursuant to the provisions of Article 6.6 hereof. Notwithstanding the foregoing, this Corporation and the Adjacent Condominium Corporation agree to provide to the Declarant, upon request, on its own behalf or on behalf of any original purchaser of a dwelling unit in Building A or in Building B, within ten (10) days after written request, the aforesaid Certificate without fee or charge to the Declarant.
Article 10 - Possible Amalgamation Of The Two Condominium Corporations
The parties hereto acknowledge that the Two Condominiums is a phased condominium project consisting of Building A and Building B and that the Art now contemplates the possible, voluntary amalgamation of both Corporations into a single condominium plan.
Accordingly, the owners and directors of the Two Condominium Corporations may determine, in future, that such proposed amalgamation would be of significant and mutual benefit to all present and future unit owners in Building A and Building B, particularly, in the administration, management, control and use of the Shared Facilities and in the reduction of the costs of administration of the Shared Facilities by each Condominium Corporation.
In the event that the requisite Vote and support of the unit owners in each Condominium Corporation is obtained and the amalgamation of the Two Condominium Corporations into a single condominium plan is effected, then this Agreement and all rights and obligations hereunder may be terminated, save and except for the continuing ability of Metropolitan Toronto Condominium Corporation No. 1376 to share in and pay for its pro rata share of the costs of maintaining the service unit; otherwise, this Shared Facilities Agreement shall not be terminated and may be only be modified with the consent of the parties hereto, including the Metropolitan Toronto Condominium Corporation No. 1376 as a successor to the Declarant with respect to the joint use and ownership of the service unit.
Article 11 - 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.
11.2 Mediation and Arbitration
(a) If the parties are unable to resolve the question or matter in dispute through good faith negotiations as contemplated in Section 11.1 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.
(b) 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.
(c) 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.
11.3 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.
11.4 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.
Article 12 - Notice
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 MSH 3S8
- TO THIS CORPORATION
c/o Brookfield Residential Management Services Ltd.
3190 Steeles Avenue East
Markham, ON L3R 1G9
- TO THE ADJACENT CONDOMINIUM CORPORATION.
c/o Brookfield Residential Management Services Ltd.
3190 Steeles Avenue East
Markham, ON L3R 1G9
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 13 - General
13.1 Planning Act
This Agreement is subject to compliance with the Planning Act of Ontario.
This Agreement shall not be modified or amended except by instrument in writing of equal formality herewith and signed by the parties hereto or by their respective successors and assigns. The parties hereto hereby consent to the registration on the title to their lands of any such modification or amendment to this Agreement.
The headings used in the body of this Agreement form no part thereof, but shall be deemed to be inserted for convenience of reference only.
This Agreement shall be read and construed as the number and gender of the party and parties referred to in. each case requires, and as may otherwise be required by the context
If any clause or section of this Agreement shall be determined by a court of competent jurisdiction to .be illegal or unenforceable, then such clause or section shall be considered separate and severable from this Agreement, and the remaining provisions thereof shall remain in full force and effect, and shall be binding upon the parties hereto as though the said illegal or unenforceable clause or section had never been included.
13.6 Counterpart Agreements
This Agreement may-be executed in one or more counterparts, each of which when so executed shall constitute an original, and all of which shall together constitute one and the same agreement.
13.7 Effective Date of Agreement
It is intended that notwithstanding the actual date of execution of this Agreement by the parties hereto, this Agreement, and its terms and provisions, shall take effect from the date of registration of the declaration of this Corporation which shall constitute the effective date of this Agreement.
13.8 Termination of Liability of the Declarant
Notwithstanding anything provided in this Agreement to the contrary, as and when each Condominium Corporation executes this Agreement, the Declarant shall be automatically released and discharged from its obligations and liabilities hereunder to the extent that such liabilities and obligations have been assumed by the Two Condominium Corporations, and upon completion of the transfer of the Shared Facilities, the Declarant shall be automatically released and forever discharged of and from any and all further liabilities and obligations under or pursuant to this Agreement with the sole exception of the operation of the, covenants set forth in the Articles 2.11, 3.9 and 4.2 of this Agreement which covenants shall be deemed to survive such termination.
Notwithstanding anything provided in this Agreement to the contrary, it is clearly understood and agreed by the parties hereto that:
- any reference to any corporation in this Agreement shall include, where required by the context, the corporation and its workmen, servants or agents, and shall specifically include where required by the unit owners that are members thereof, and their respective family members, tenants, licensees, guests and invitees; and
- any reference to the Declarant in this Agreement shall mean the Declarant, its successors and assigns, together with their respective officers, directors, workmen, servants, or agents, and shall where the context permits specifically include the Two Condominium Corporations to be created by the registration of a declarations and descriptions under the Act in the Building A Lands and the Building B Lands together with the unit purchasers and owners thereof and their respective family members, tenants, licensees, guests and invitees.
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
(Hard copy signed by then directors)