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HomeMy WebLinkAbout09/11/2019 - Otter Valley Board of Management OTTER VALLEY UTILITY CORRIDOR BOARD OF MANAGEMENT AGENDA September 11, 2019 3:00 PM- 4:00 PM 10 Lisgar Ave, Tillsonburg, ON Customer Service Centre Board Room ORDER OF BUSINESS 1. Chair Appointment 2. Report CAO-49/19 re Otter Valley Utility Corridor - Background 3. Report CAO-50/19 re Utility Corridor Fencing & Gates 4. Report CAO-51/19 re Utility Corridor— Tunnel Line Culvert 5. Other Business 6. Adjournment REPORT o �y CAO �p�j'tunity Is�o�► TO: Otter Valley Utility Corridor Board of Management FROM: Paul Shipway, CAOIClerk DATE: September 11, 2019 REPORT: CAO-49/19 SUBJECT: OTTER VALLEY UTILITY CORRIDOR - BACKGROUND BACKGROUND In 1997 the Village of Port Burwell and the Town of Tillsonburg entered into a Joint Venture Agreement, operating as the Otter Valley Utility Corridor Board of Management, concerning the Otter Valley Utility Corridor. The Joint Venture Agreement, attached hereto as Appendix `A', is a legal document with prescriptive duties pertaining to ownership of the Utility Corridor and any actions that take place on the Otter Valley Utility Corridor. Effective February 6, 1997 the Corporation of the Village of Port Burwell and the Corporation of the Town of Tillsonburg, purchased from Canadian Pacific Railway Company land in the Township of Bayham, County of Elgin. The Otter Valley Utility Corridor land included the following properties. i. Roll No. 34-01-000-009-01800-0000 ii. Roll No. 34-01-000-009-01805-0000 iii. Roll No. 34-01-000-009-01810-0000 The Municipality of Bayham and the Town of Tillsonburg have an Option Agreement with AIM Power and a Road Use Agreement with Erie Shores Wind Farms for use of the Otter Valley Utility Corridor. Additionally, the majority of the Otter Valley Utility Corridor north of Vienna is leased to the abutting land owner's as a result of Line Fence Act disputes in the early 2000's. Mapping is attached hereto as Appendix `B'. Agendas & Minutes of the Otter Valley Utility Corridor Board of Management are available online on the Advisory Boards and Committees section of the Municipality of Bayham Website. RECOMMENDATION 1. THAT Report CAO-49/19 re Ottery Valley Utility Corridor— Background be received for information. Respectfully Submitted by: Paul Shipway CAOIClerk Cj THIS JOINT VENTURE AGREEMENT made as of this 6th day of February, 1997 BETWEEN: THE CORPORATION OF THE VILLAGE OF PORT BURWELL {"Port Burwell"), the Party of the First Part - and- TNE CORPORATION OF THE TOWN OF TILLSONSURG ('Tiilsonburg"),the Party of the Second Part IN CONSIDERATION OF fie covenants and agreements hereinafter contained and for other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged by each of the Parties),the Parties hereby covenant and agree,effective from and after the Commencement date,as follows: ARTICLE DEFINITION 1. Where used in this Agreement or In any Schedule or amendment hereto, the following terms shall, unless the context otherwise requires, have the fallowing meanings, respectively: 1.01 "Agreement"shall mean this Agreement,including any Schedules or amendments hereto: 1,02 "Buy-Sell Offers"shall mean two(2) contemporaneous offers by one Parry to the other, each on identical terms(except that the pace shall be pro-rated if the Parry's Percentage Interests are not equal), one being an offer to purchase the Offeree's Joint Venture Interest and the other being an offer to sell the Offeror's Joint Venture Interest; 1Z3 "Capital Account" shall mean, with respect to each Party, the aggregate value of all contributions to the Joint Ventura from time to time by that Party,less the aggregate value of any distributions to data to such Party; 1.04 "Capital Contributions" shall mean contributions of capital required to be made by the Parties In accordance with Paragraph 4.03; 1.05 "Commencement Date" shall mean the 6th day of February, 1997: 1.06 "Contributing Party"shall mean a Party making a Capital Contribution as provided for In Paragraph 4.03; 1.07 "Contribution Lean" shall mean a loan made by a Contributing Party to a Non- contributing Party as provided for by Paragraph 4.04; 1.08 "Defaulting Party"shall mean the Party in relation to which,or whom,an Event of Default occurs; 2 1.09 "Event of Default" shall mean an event listed in Subparagraphs 10.01(a) to 10.01(I) Inclusive, 1.10 "First Right Notice" shall mean a written notice from one Party to the other of a Single Interest Offer received by that Party; 1.11 "Joint Venture" shall mean the Joint Venture undertaken by the Parties for the purpose set out in Paragraph 3.01; 1.12 "Joint Venture Costs" shall mean the total of all costs of any nature relating to the completion and ongoing operation and maintenance of the Project incurred subsequent to the Commencement Date including Construction Costs; 1.13 "Joint Venture interest"shall mean,In relation to each Party, the Percentage Interest of each Party respectively from time to time in the Joint Venture; 1.14 "Major Decisions"shall mean decisions as defined in Paragraph 5.03; 1.15 "Non-Contributing Party"shall mean a Party failing to make a Capital Contribution as provided for in Paragraph 4.03; 1.16 "Non-Defaulting Party" shall mean the Party in relation to which,or whom, an Event of Default has not occurred; 1.17 "Off eree"shall mean a Party receiving a First Right Notice or a Buy-Sell Offer, 1.18 "Offeror" shall mean a Party delivering a First Right Notice or a Buy-Sell Offer; 1.19 "Party and Parties" shall mean, respectively, the individual Parties and both Parties to this Agreement; 1.20 "Percentage Interest"shall mean,in the relation to each Party,the Party's proportionate Interest in the Joint Venture as defined by Paragraph 4.01; 1.21 "Project" shall mean the development and ongoing operation and maintenance of the Property as a utility corridor,and as a bicycle path and/or a cross country ski trail and/or a recreational trail and/or related uses, which shall be the undertaking of the Joint Venture; 1.22 "Property" shall mean the real properly described in Schedule A; 1.23 "Single Interest Otter" shall mean a bona fide offer for the purchase of all of the Joint Venture Interest of one Party, which offer complies with the requirements of Paragraph 8.03; 3 ARDQ.E 11 INTESPRE 91N 2.01 LjudipS2 The division of this Agreement into Articles and Paragraphs and the Insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of this Agreement_ 2.02 Rules Of QQnstruction Unless the context otherwise requires; (a) the terrrL.s "this Agreement', "hereof","hereunder'and sim3r,r expressions refer to this Agreement and not to any particular Article, Paragraph or other portion hereof and Include any Schedule or amendment hereto; (b) references to Articles and Paragraphs are to Articles and Paragraphs of this Agreement (c) words importing the singular number only shall include the plural and vice versa and words imparting elthar gender shall Include both genders and wards Impc ill ng individuals shall Include firms and corporations and vice versa; (d) the word "or" may be conjunctive or disjunctive, as the context may require; (e) reference herein to any agreement, indenture or other Instrument In writfng means such agreement, indenture or other instrument in writing as amended,modified or supplemented from time to time; and (f) unless otherwise indicated, reference to any statute shall be deemed to be a reference to such statute as amended, re-enacted or replaced from time to time. 2,03 -9av�rnirlg ! aw Th1s Agreement shall be construed in accordance with and governed by the laws of the Province of Ontario and tha laws of Canada applicable therein and shall be treated in ail respects as an Ontario contract. 2.04 Accounting Princtoles Wherever in this Agreement reference is made to generally accepted accounting principles, such reference shall be deemed to be to the generally accepted accounting principles from time to tlme approved by the Canadian Institute of Chartered Accountants, or any successor institute,applicable as at the time and such other principles as generally accepted In the Province of Ontario. Ms Currency All references to currency herein are to lawful money of Canada. 4 2,06 Entire Agreement This Agreement together with the documents referred to herein, constitutes the entire agreement between the-Pathos hereto with respect to the subject matter hereof and Cancels and supersedes any prior understandings and agreements between the Parties hereto with respect thereto. There are no representations, warranties,tenrtis,conditions, undertakings or collateral agreements,express,implied or statutory,between tho Parties other than as expressly set forth in this Agreement. 2.07 5e►►11 ility Save and except for any provisions or covenants contained herein which are fundamental to the subject matter of this Agreement,the Invalidity or unenforc+eability of any provisions of this Agreement or any covenants herein contained shall not affect the validity or enforceability of any other provisions or covenants hereof or herein contained and any such Invalid provision or covenant shall be deemed to be severable. 2.08 Schedules The following Schedules are attached hereto and are incorporated into this Agreement by reference: Schedule W -Ina] description of Property. AU!QLIE III THE JgINT VENTURE 3.01 Farmatln The Parties hereby enter Into the Joint Venture for the purpose of the completion and the ongoing operation and maintenance of the Project,and notwithstanding the provisions of Article V, agree to concur in securing of all work, services and material necessary to complete, operate and maintain the Project and to concur in the payment by the Joint Venture of all Joint Venture Costs; provided that all specific costs and liabilities shall be agreed to by both Parties before they are incurred by or on behalf of the Joint Ventura, 3.02 Soo o1 Authoft Except as otherwise expressly and speCificaily provided for In this Agreement, neither Party shall have any authority to hind or act for, or assume any obligations or responsibility on behalf of the other. Neither the Joint Venture nor either Party shall be responsible for any indebtedness or obligation of the other Party relating to the Property or otherwise, incurred or arising either before or after the execution of this Agreement, except as to those joint responsibilities, Ilabilities, indebtedness or obligations Incurred pursuant to and limited by the terms of this Agreement, or as specifically agreed to in writing from time to time. Each Party shall indemnify and hold harmless the other from and against all claims,demands,losses,damages,liabilities,law suits,other proceedings, 5 judgments, awards, costs and expenses (including but not limited to legal fees on a solicitor and the solicitor's own client basis)arising directly or indirectly in whole or in part out of any breach of the foregoing provisions. 3.03 NQ Partnerr§hlp NcthIng in this Agreement shall be construed so as to create or support the existence In law of a partnership between the Parties_ The Parties specifically deny any intandon of creating a legal partnership. 3.04 Term The term of this Agreement snail commence on the Commencement Cate and shall continue until terminated in accordance with this Agreement and for so long as the Joint Venture holds any interest in or has any obligations relating to the Property or until the Parties agree to its termination; provided that no Party shall have the right to withdraw from the Joint Venture and each Party agrees not to so withdraw, nor to dissolve, terminate,or riquidate, or to petition a court for the dissolution,termination or liquidation of the Joint Venture, except as provided for In this Agreement, and no Party shall at any time have the right to petition or to take any action to subject the Property,or any part or parts thereof,or any interest therein,or any other assets of the Joint Venture,or any part or parts thereof, to the authority of any court of bankruptcy, Insolvency, receivership or similar proceeding. 3.Q5 j�iQf)- ssignment Both Parties agree that neither will sell,transfer,assign,mortgage or otherwise encumber, dispose of or cease to be an owner of the Property, except with the consent in writing of the other, or except otherwise in accordance with the tents of this Agreement. 3.06 PriMlipal Place f BLIsiness The principal place of business of the Joint Venture shall be 2M Broadway, 2nd Floor, Suite 204,Tillsonburg,Ontario,N4G 5A7,or such other location as the Parties may agree upon from time to time. 3.07 Financing Any required financing. shall, wherever possible, to on the basis of several, not joint, liabilities so that each Party shall be liable only to the extent of Its Percentage Interest. In the case of joint and several tiWllty, the Parties,as between themselves,shall only be liable In the same percentage as their respective Percentage interest and each hereby agrees to indemnify and save harmless the other for the Party's percentage share of such financing, and the Par y's percentage share of any costs and liabilities associated therewith. 6 ARTICLE iV CAPITAL CONTRIBt TIQNS 4.01 F!ercentagginterM Each of the Parties shall have a Fifty Percent (50%) Percentage Interest in the Joint Venture, including the Project and the Property. There shall be no adjustment to the Percentage Interest of either Party except as provided far by this Agreement or by written agreement of both Parties. 4.02 Initial Contributions It is the intention of the Parties that they conlriMa equally to the cost of the Joint Venture. Contributions to the Commencement Date have been made by the Parries equally. 4.03 Additional Capital-Contributions To the extent that the Joint Venture requires funds for completion and ongoing operation and maintenance of the Project and the payment of Joint Venture Costs,the Parties agree to matte additional Capltat Contributions from time to time in accordance with the provisions hereof and in the same percentage amounts as their Percentage Interest as provided For herein, and as adjusted from time to time, and in such amounts as are sufficient to enable the Joint Venture to complete, operate and maintain the Project. Either Party may give notice In writing to the other Party of the requirement for additional capital contributions, which notice shall specify in reasonable detail the amount and purpose of any such additional capital contributions. Each Party shall,within thirty (30) days of such nation,deposlI the addittonal capital contribution required by such notice into the bank account of the Joint Venture. 4.04 Contributlon Lga In the event that either Party fails to make any such additional capital contribution within the time specified,a Contributing Party shall have the right to advance directly to the Joint Venture the funds required from a Non-Contributing Party as a loan to such Non- Contributing Party. 4.05 Qantrlbutton Lpipn Security In the event that the Contributing Party elects to make a Contribution Loam then the Contribution Loan shall bear Interest at a rats equal to the Prime Rate charged by the Canadian chartered bank or trust company used by the Joint Venture from time to time plus two percent(2%). The Contribution Loan shall be due and payable immediately and shall be repaid out of any subsequent distribution made pursuant to this Agreement to the Non-Contributing Party. All payments shall be applied first to Interest and Men to principal until the Contribution Loan is repaid in futl. Repayment of the Contribution Loan shah be secured by the Non-Contributing Parry's Joint Venture Interest and the Non-Contributing Party hereby grants a security Interest in such Joint Venture interest to the Contributing Party and hereby Irrevocably appoints the Contributing Party and any of its agents as the Non-Contributing Parry's attorney with full power and authority to prepare and execute any documents,instruments and agreements,including but not limited to any note evidencing 7 the Contribution Loan, and financing statements and other security Instruments as may ba appropriate to perfect and continue such security interest In favour of the Contributing Party. 4.06 $Pm f f n In the event that any Contribution Loan has not been repaid in full within sixty(60) days of the date when the Contribution Loan is made, then, In addition to any other rights or remedies available to the Contributng party at law or in equity,at any time thereafter the Contributing Party may elect to proceed under either Subparagraph 4.06(a) or 4.06(b). (a) upon thirty (30) days prior written notice to the Non-Contributing Party, the Contributing Party may elect to treat the outstanding balance of its Contribution Loan as a Capital Contribution added to the Contributing Party's Capital Accouni and both Parties' Pefcantage Interests shalt thereupon be recalculated as of the effective date of the notice of such election;or (b) The Contributing Party may elect to make written demand upon the Non- Contributing Party for{payment in full of the Contftbutlon Loan, including accrued interest attributable to such Im and, upon the failure of the Non-Contributing Party to pay such Contribution Loan, and interest, in full withln seven (7) days following the day upon which demand is made. the Contributing Party may elect to treat such failure to pay as an event of default as provided in this Agreement, and to enforce the security Interest In the Nan-Contributing Party's Joint Venture interest. 4.07 No Inieres4 on Capital Interest eamed on Joint Venture funds shall enure solely to the benefit of the Joint Venture and,except as specifically provided hefein with respect to the payment of interest on a Contribution Loan, no interest shall be paid upon any contributions or advances to the capital of tha Joint Venture nor upon any undistributed or reinvested income or profits of the Joint Venture. 4.08 jMsLMgnj to Capital Accounts The Capital Accounts of each Party shall, during each fiscal year,be: (a) increased by Capital Contributions made by such Party during such fiscal year, and such Party's share of the profits(calculated without including depreciation)of the Joint Venture determined pursuant to Paragraph 4.09 during such fiscal year, whether or not distributed; and (b) decreased by distributions to or for the account of such Party, whether of capital or income, during such fiscal year, and such Party's share of losses (calculated without including depreciation) of the Joint Venture during such fiscal year, determined pursuant to Paragraph 4.10. 8 4.09 Allgcatlon of Profits The respective share of each Party in all Joint Venture income and expenses and each item thereof, including depreciation and tax credits, shall be allocated to the Parties in accordance with their Percentage interests; provided however, that the decision as to when,and to what extent, claims are made for such depreciation (capital cast allowance) and tax credits for tax purposes shall be left to the discretion of each Party. 4.10 Withifrawal of Ca ill Except as otherwise provided herein, no portion of the capital of the Joint Venture may be withdrawn at any time without the consent of all of the Parties. Upon termination of the Joint Venture, the Parties'capital shall be distributed pursuant to Paragraph 14.04. ARTICLE DECISION MAKING 5.01 Decisions The Parties agree that all decisions regarding the Joint Venture, the Project or the Property other than Major Decisions and other than contributions toward costs payable by the Joint Venture solely as owner of the Properly shall be made by the Board. 5.02 Board The Board shall consist of three representatives from each Party. At least one representative from each Party shall be a member of that Party's Council. Each representative shall be an individual who shall be qualified to be elected as a member of the Council of the Party which appointed such representative. Each representative shall hoed office at the pleasure of the Council of the Party which appointed such representative and unless sooner removed from the Board shall remain on the Board until the expiration of the term of the Council of the Party that appointed such representative and until such representative's successor is appointed. 5.03 Major Decisions No act shall be taken, sum expended, decision made or obligation incurred by the Joint Venture with respect to a matter within the scope of any of the Major Decisions enumerated below,unless and until the same has been approved by both Partles. Major Decisions shall be: (a) acquisition of any land or other real property or interest therein, other than the Property; (b) financing or refinancing of the Joint Venture,the Property, or the Project; (c) the sale or transfer of the Property or the Project or any interest therein; (d) approval of any addition to and/or alteration of the Project or any portion thereof, and of any modification of plans,specifications and drawings for the Project; (e) retention of legal counsel,surveyors, engineers and architects for the Joint 9 Venture, and for the institution of any law suit or similar legal action; { making any expenditure or incurring any obligation by or on behalf of the Joint Venture; and (g) any other decision or action which materially affects the Joint Ventura or the assets or operations thereof. AOMC LE_V1 MANAGEMEM1T 6.01 Quail Management The Board shall be responsible, in addition to its part in the decision-making process outlined in Article V above,for the implementation of all Major Decisions agreed to by both Parties and for the overall construction, operation and maintenance of the Joint Ventura and the Project and the Property. 6.02 Ghal►rnan At each annual meeting of the Board,the Board shall elect from its members a Chairman who shall be responsible for the following: (a) presiding at all meetings of the Board; (b) signing, along with the Treasurer, all cheques. &03 Vloe-Chairman At each annual meeting of the Board,the Board shall elect a Vice-Chairman who shall be responsible for fulfilling the Chairman's responsibilities in the absence of the Chairman. 6.04 Secretary At each annual meeting of trio Board, the Board shall appoint a Secretary from the staff of one of the Parties who shall be responsible for the following: (a) koeping written minutes of all meetings of the Board; (b) receiving all correspondence directad to the Joint Venture and sending all correspondence required to be sent by the Joint Ventura; (c) keeping and maintaining all records of the Joint Venture, including minutes of Board meetings, correspondence,contracts, plans,past financial statements and all other records; (d) forwarding to each Party written notice of any required contribution',and (a) forwarding to all members of the Board all notices required to be given under this Agreement. 10 6.05 Treasurer At each annual meeting of the Board, the Board shall appoint a Treasurer from the staff of the Party that the Secretary does not represent, who shall be responsible for the following; (a) maintaining all current financial retards of the Joint Venture; (b) preparing a balance sheet as at the end of each fiscal year of the Joint Venture and an income and net cash flow statement for each such fiscal year within sixty (60) days after the end of each such fiscal year, (c) preparing any and all income tax returns or information statements of the Joint Venture and fumishing same for review and approval by each of the Parties at least thirty(30) days prior to any statutory dates for filing thereof; (d) maintaining the Joint Venture's bank account and bank records; and (a) signing along with the Chairman or Vice-Chairman, of all cheques. 6.08 Rank Accounts The Board shall maintain at least two bank accounts,one of which shall be an operatlonat account and one of which shall be a reserve account. All monies received by the Joint Venture shall be deposited into one or more of the bank accounts maintained by the Board. The Board may also place funds into such term deposits, investment oertificates or other financial instruments as shall be decided upon by the Board- All cheques and other Bank documents shall be signed by the: Chairman or Vice-Chairman and by the Treasurer. 6.07 Meetings The Board shall hold an annual meeting on or before the 15th day of February in each year for the purpose of considering reports, approving financial statements, electing officers, and establishing budgets. In addition, the Board shall hold at least four other meetings in each year in order to discuss such business as the Chairman may determine. The Chairman may also call such other special meetings as the Chairman considers necessary. All meetings of the board shall be at times and places as determined from time to time by the Chairman. 6.08 Notice of Meetings Notice of the time and place of each meeting of the Board shall be given to each member of the Board not less than five(5)days before the day on which the meeting is to be held, and the Notice shall specify the nature of the business to be conducted at such meeting. Notice may be given by mail or by telephone or by facsimile transmission, and the certificate of the Secretary as to the proper giving of Notice shall be conclusive of such Notice having been given. 11 6.09 . AQU m A quorum at any meeting of the Board shall be four(4)members, of which there shall be at feast two(2) representatives from each Party. Ali decisions of the Board in carving out its tasks shall be agreed to by a majority of those present at such meetings. 6.1❑ Contruts and Documents All contracts, documents or instruments in writing shall be signed by the Chairman or Vice-Chairman and by the Treasurer or as otherwise authorized by the Board. 6.11 Coital IE;,,xpenditures and Maigr MalntenancQ BxRen itur� The Board shah request tenders or bids for all capital expenditures and all major maintenance expenditures. 6.12 Rules The Board shall establish rules and regulations goveming the use and operation of the Project and the Property. 5.13 Budgets The Board shall repair and provide to the Parties the following budgets: (a) forthwith after the establishment of the Board,the Board shall establish a budget for the construction,operation and maintenance of the Project and the Property for one year and the budget shall be presented to each of the Parties for approval; (b) prior to December 31 of each year, the Board shall prepare and present to the Parties a budget for the construction, operation and maintenance of the Project and the Property for the following year,which shall include all costs relating to the construction,operation and maintenance of the Project and the Property and which shall include a reserve amount equal to ten percent of the cost of operating the Project and the Property; (c) forthwith after the Board is established, the Board shall prepare and present to each of the Parties a five-ye ar budget forecast setting out both projected operating and capital expenditures, and further five-year budget forecasts shall be prepared as and when determined by the Board. 6.14 Reserve Accounts The Board shall establish a reserve accounts) for major capital expenditures relating to the Project and the Property. All reserve funds elected on an annual basis shall be deposited into such special reserve account(s). The determination of what constitutes a major capital expenditure, and the utilization of funds in the reserve account(s), shall be determined by the Board,provided that the reserve accounts)shall not be reduced below the total sum of$1,000.00. 12 6.15 SneclaLAmssments The Board may submit a special assessment to each Party for five approval and the payment of same by each Parry with respect to: (a) a deficit, projected or actual In the Board's initial budget or any of the Board's annual budgets, wM respect to the Project and the Property; (b) projected major capital expenditures which exceed the balance(s)in the reserve accounts). 6.1s CompeasAlon r Except as may be expressfy provided Far herein or hereafter approved by the Board,no payment will be made by the Joint Venture to either Party for the services of such Party. 6.17 R?JmbWr5%1ble Exl2etWitures Each of the Parties shall be reimbursed by the Joint Venture for out-of-pocket expenditures Incurred with respect to Joint Venture Costs,Including broker fees,surveying costs, engineering costs, legal costs and costs of other outside consultants. 6.18 Time Devoted to Jo1a Ymture The Parties shali devote such time to the Joint Venture as is reasonably necessary to carry out the provisions of this Agreement 6.19 Other Bus€ness Activity, Disclosure.Waiver Each of the Parties understands that the other may he interested, directly or Indirectly,in various other businesses or undertakings not included in the Joint Venture, The Parties hereby agree that the creation of the Joint Ventura and the assumption by each of the Parties of duties hereunder shall be without prejudice to the Parties' rights to have such other interests and activities and to receive and enjoy profits or compensation therefrom, and each Party waives any right to share or participate in such other interests or activities of the other Party. The Parties may engage in or possess any interest in any other business venture of any nature or description independently or with others,Including but not limited to, the ownership, financing, teasing, operation, management, syndication, brokerage,or development of real property, and neither the Joint Venture nor the other Party shall have any right by virtue of this Agreement in or to such interest or the income or profit derived therefrom. ARTICLE VII 7.01 The Joint Venture shall maintain,at f3ha expense of the Joint Venture,accurate books and records of account on an accrual basis, in which shall be recorded all matters relating to 13 the Joint Venture,including all Income,expenditures, assets, an❑ liabilities thereof. The said books and records, and all other information relating to the Joint Venture, shall be maintaJned at all times at the place of business of the Joint Venture. Each Party, or its authortzed representattva,shall have the right to inspect and copy tha books,records,files and documents of the Joint Venture at all reasonable times. 7.02 f!iscal Year The fiscal year of the Joint Venture shall end on such date of each year as agreed to by the Parties from time to time. 7.03 Allocations tp E!artles Each item of income,gain, loss, deduction or credit earned,realized or available by or to the Joint Venture shall be allocated to the Parties in accordance with the Percentage Interest of each Party, 7.04 Agoountant The Joint Venture shall engage such firm of chartered accountants as the Parties may agree upon In respect of completing an audit of the financial statements of the Joint Venture for each fiscal year of the.feint Venture, ARTICLE Vill TRANZFER AND BUY-SELL 8.01 Prohibition Against Transfer Except as expressly permitted herein,neither Party shall sell,assign, transfer, mortgage, charge or otherwise encumber, or agree to sell, assign, transfer, mortgage, charge or otherwise encumber,whether voluntarily or by operation of law,any part or all of its Joint Venture Interest, without the written consent of the other Party, and: any document evidencing such sale,assignment, transfer, mortgage, charge or other encumbrance, or agreement to do so,shalt be void;provided that this Paragraph shall not prohibit any such transactions between one of the Parties and one of Its shareholders, a corporation controlled by the Party or its shareholder,the spouse or child of a shareholder,or a trust in which the entire beneficial interest Is owned by a shareholder, or the spouse or child of a shareholder, provided further that any such permitted transaction shall be on the express condition that such shareholder, corporation, trust, spouse or child agree to be bound by this Agreement. 8.02 Right of First Ret'usai If a Party receives a Single Interest Offer which It desires and intends to accept, it shall before accepting such offer give a First bight Notice to the other Party. 14 8.03 $equlremea�; of_Qtfer A Single Interest Offer shall satisfy the following requirements: (a) it shall provide for a closing date within ninety(90)days of the date of the Offer; (b) the proposed purchase price(which shall be net of any fiablllty of the Joint Venture which the prospective purchaser has agreed to assume), if not payable entirely in cash,shall not be secured by any charge,encumbrance or hypothecation of a Joint Venture Interest; (c) It shall contain provisions obligating the purchaser to comply with the provisions of Paragraph 9.02 on or before closing; (d) It shall be an offer by a principal (Identified In the offer and not an agent acting on behalf of an undisclosed principal) which principal shall not be related to or affiliated with the Offerors or In which the Offerors have any direct or indirect ownership or control; (a) it shalt be accompanied by a certified chaque for a sure equal to at least ten percent(101/6) of the proposed purchase price, by way of deposit; M it shall be an offer from a prospective purchaser of good business character and reputation and financially capable of carrying out all otAgations of the Offeror under this Agreement; and (g) it shall be from a prospective purchaser meeting the limitations set out in Paragraph 9.05. 8.04 FirstAight Notice The First Flight Notice shall be accompanied by a true copy of the Single Interest Offer and shall be deemed to be an offer by the Offeror to the Off eroe to sell the Joini Venture Interest of the Offeror at the same price and subject to the same terms and conditions as set forth In the Single Interest Offer. The Offeres shall notify We Offeror In writing of the Offerea's acceptance or rejection within thirty (30)days of the date of receipt of the First Right Notice,and failure to give notice within the required tuna period shall be deemed to be an election to reject 8.05 Acceotance of Sale Offer If the First Right Notice is accepted by the Meree as specified in Paragraph 8,04, there shall be deemed to be an agreement of purchase and sale between the Offeror and the Offerse which shall be completed in accordance with Article IX. 8.06 Right-10 Sell tG Third Party If the First Flight Notice is rejected as provided in Paragraph 8.04,the Offeror shall be free to accept the Single Interest Offer and to complete the sale of the Offeror's Joint Venture Interest as provided therein. The Offeree's election not to exercise the Offeree's rights hereunder with respect to a First Right{Notice or particular Single Interest offer shall not constitute a waiver of the Offeree's rights hereunder with respect to any subsequent Single interest Offers. 15 a.07 Bily-mSell At any Urn prior to the termination of the.faint Venture,alther Party may deliver Buy-Sell Offers to the other Parry, which shall be open for acceptance for a period of thirty (30) days from their receipt, and one (1) of which offers may be accepted by the Offeree by detivery of written notice to the Offeror within thirty(30) days of the receipt of the said Buy-Sell Offers. &08 Agcgptance of_Oer It one of the Buy-Sell Offers is accepted, the Offeror shall be bound to self the Offerors Joint Venture interest or to purchase the Offeree's Joint Venture Interest,as the case may be. in accordance with the terms contained In time BuySsll Offers and the closing of the transaction shall take place in accordance with Article IX if nether offer is accepted within the said th#rty(30)day period,then the Offerse shall be deemed to have accepted the offer of the Offeror to buy the Jant Venture Interest of the Offeree and the closing of the transaction shall take place in accordance with Article IX. 8.09 Limitation on Exerg}ae Notwithstanding anything to the contrary contained in this Article Vill, no transfer of any Joint Venture Interest pursuant to this Articla Vill shall be permitted, nor may either the First Right of Refusal right with respect to a Single Interest Offer, nor the Buy-Sell right, be exercised subsequent to the gluing of a First Right Offer or the malting of a Buy-Sell Offer, until all notice periods arising therefrom have expired and until all transactions arising therefrom have either been completed or otherwise terminated. ARTICLE_IN GENERAL„SALE PRQVISIONS 9.01 C1gsinQ The closing of any We of a Joint Venture interest to the other Party pursuant to Article Vill, or Paragraph 10.02(a)shall be hold at the place of business of the Joint Venture on the date thirty (30) days after. (a) with respect to a First Bight Notice,the earlier of the receipt by the Offeror of the written notice of election by tha Off aree pursuant to Paragraph 8.05. or the expiration of the notice period set by Paragraph 8.04, or (b) with respect to Buy-Sell Offers, ttre earlier of the receipt by the Offeror of the written notice of election by the Offeree pursuant to Paragraph 8.08,or the expiration of the notice period set by Paragraph 8.07; or (c) with respect to the election of the Non-❑efautting Party to purchase the Defaulting Party's Joint Venture Interest, receipt of the written notice of election to purchase pursuant to Paragraph 10.02(a), 16 9.02 Aor¢ements with ransferees If, pursuant to the provisions of Article Vill, any Party transfers its Joint Venture interest to any person or entity other than the other Party,no such transfer shall be made or shall be effective or entitle the transferee therein to any benefits or rights hereunder until such transferee agrees in writing to assume and be bound by all the obligations of the transferring Party under fhe !arms of this Agreement. 9.03 C_>Df141a Adlatmenta Upon dosing, any closing adjustments which are then usual and customary In the Province of Ontario shall be made between the purchasing Party and the selling Party as at the date of closing. The price to be paid shall also be adjusted as of the date of closing for Capital Contributions made by the selling Party, or distributions made to the selling Party,subsequent to the establishment of the purchase price. The Joint Venture Interest shall be transferred free and clear of any liens,encumbrances or any other interest of any third Party and any and all documents required to fully transfer such interest to the purchasing Party shall be delivered on closing. Any monetary default by the s Wit ng Party to the Joint Venture must be cured at closing out of the proceeds from such sale and any interest and principal owing on any outstanding Contribution Loans must similarly be paid in full at dosing. 9.04 Ftestraining Order In the event that any Party shall at any time transfer or attempt to transfer the Party's Joint Venture Interest In violation of the provisions of this Agreement,than the other Party shall, In addition to all rights and remedies at law and in equity,be entitled to a decree or order restraining and enjoining such transfer and the offending Party shall not plead in defense thereto that there would be an adequate remedy at law; it being hereby expressly acknowledged and agreed that damages at law will be an inadequate remedy for a breach or threatened breach or violation of the provisions concerning transfer set forth in this Agreement. 9.05 Ulnitatfon&of Transfer No Party shall transfer all or any part of the Party's Joint Venture Interest to any Party, whether or not such transfer would otherwise be permitted herein, if such transfer would result: (a) in the Joint Venture or any of its assets becoming subject to any restrictions or regulations or controls or approval process by reason of the nationality or residence of the transferee; (b) in any tern of a mortgage, agreement of document entered into by the Joint Venture being breached or accelerated; or tcy in increased income taxes being payable by the other Party. 17 AR71Cf.E 7( DUAUl l AND DISSOLUUM 10.41 _Eyenk�1 The occurrence of any of the following events shall constitute an Event of Default on the part of the Party with respect to whom such event occurs if within seven(7)days following notice of such default from the other Party the Defaulting Party fails to commence reasonable efforts to cure such default and thereafter fails within a reasonable time to pursue to completion with diligence and continuity the curing of such default, or, if the default is due solely to the non-payment of monies, falls to pay such monies; provided, however, that the occurrence of any of the events described in Paragraphs 10.01(a) and 10.01(c) to 10.010) below shali constitute an Event of Default immediately upon such occurrence without any requirement of notice or passage of time except as specifically set forth in any such Paragraph: (a) violation by a Party of any of the restrictions set forth In Article Vill of this Agreement with respect to the right of a Party to transfer or otherwise deal with the Partys Joint Ventura Interest; (b) the failure of a Party's transferee to assume in writing and agree to be bound by all of the transferring Party's obligations, as provided in Paragraph 9.02; (c) Institution by a Party of proceedings of any nature under any laws,whether now existing or subsequently enacted or amended,for the relief of debtors wherein such Party is seeking relief as a debtor, (d) a general assignment by a Party for the benefit of creditors; (a) the institution by a Party of an action or other proceeding under any section of the Bankruptcy and insolvency Act of Canada,as amended or replaced; (f) the instltutlon against a Party of any action or other proceeding under the Bankruptcy and insolvency Act of Canada,as amended or replaced,which proceeding is not dismissed,stayed or discharged within a period of sixty (60) days after the filing thereof, or if stayed, such stay Is thereafter lifted without a contemporaneous discharge or dismissal of such proceedings; (r�} a proposed plan of arrangement or other action by a Party's creditors taken as a result of a general maebng of the creditors of such Party; (h) the appointment of a receiver to take possession of the assets of a Parry, which receivership remains undischarged for a period of thirty (30) days from the date of its irnpositlon; (i) admission by a Party in writng of Its inablilty to pay it debts as they mature; (J) allohment,execution or other judiclai seizure of all or any substantial part of a Party's assets or of a Party's Percentage interest In the,Joint Venture, or any part thereof, such attachment, execution of seizure remaining undismissad or undischarged for a period of fifteen(15)clays alter the levy thereof; 18 (k) default in performance of or failure to comply with any other agreement, obligation or undertaking of a Party herein contained;and (1) any other matter specifically doomed an !Event of Default hereunder. 10.02 won of i'arL.Det$ult{ng Pant[ Upon the occurrence of an Event of Default the Non-Defaulting Party may elect to purchase the Defaulting Party's Joint Venture Interest as provided in Paragraph 10.02(a), or may elect to dissolve and terminate the Joint Venture pursuant to Paragraph 10.02(d). (a) Purchaser gf Parpd's fpt�rest Upon the occurrence of an Event of Default the Non-Defaulting Party shalt have the right to acquire the Joint Venture Interest of the Defaulting Party at a price determined in accordance with the appraisal procedure set forth In Article xl, subject to adjustment as sat forth in Paragraph 9.03. In furtherance of such right, the!Von-Defaulting Party may notify the Defaulting Party at any time following an Event of Default of its election to institute the appraisal procedure set forth in Article XI. Within thirty (30) days of receipt of notice of determination of the net fair market value of the Defaulting Party's Joint Venture Interest, the Non- Defautting Party may notify the Defaulting Party of its election to purchase the Joint Venture interest of the Defaulting Party. (b) TerMS of Purchase The Non-Defaulting Party who elects to purchase the Joint Venture Interest of the Defaulting Party shall have the right to purchase such Party's Interest by payment of twenty percent (20%) of the purchase price (as determined by the appraisal procedure pursuant to Article XI)of such Joint Venture Interest at closing,and the balance of the purchase price,without interest,in equal monthly Instalments over a period of five(6)years,with the right of prepayment of any amount at any time and from time to time without premium or bonus or penalty. (c) Closiqq The closing of the purchase shall take place as provided In Article IX;provided that upon closing the Nan-Defaulting Party may elect to offset against the purchase price the amount of any loss, damage or injury caused to it by the default of the Defaulting Party,which has been established by a final non-appealable judgment. (d) ElQctlon to Dissolve upon the occurrence of an Event of Default the Non-Defautting Party may elect to dissolve and terminate the Joint Venture upon seven(7)days written notice to bie Defaulting Party. 19 10.03 Dissolution Tha Joint Venture shall be dissolved only in the event that: (a) an Event of Default has occurred as provided in Paragraph 10.01 and the non-defaulting Party elects to dissolve the Joint Venture as Provided in Paragraph 10.02 hereof; (b) the Parties mutually agree to terminate the Joint Venture; (c) the Parties cease to hold any interest(which term shall include,but not be limited to, a security interest)in the Project; (d) either of the Parties elect to dissolve or terminate the Joint Venture pursuant to any provision of this Agreement permltCng such election to be made;or (e) the Joint Venture by its own terms as set forth In this Agreement Is terminated. 10.04 r r 1 i n ta) _IIFLg Ua Upon dissolution of the Joint Venture, the Joint Venture shall immediately Commence to wind-up its affairs and the Parties shall proceed with reasonable promptness to liquidate the business of the Joint Venture. (b) Management Rights During Mn ingl]a During the period of the winding up of the affairs of the Joint Venture, the rights and obligations of the Parties set forth herein with respect to the management of the Joint Venture shall continue; provided that if the termInation of the Joint Venture rasu Its from an Event of Default,the Defaulting Party shall have no further right to participate in the management or affairs of the Joint Ventura, but shall nonetheless be hound by aJi decisions made by the Non-Defaulting Party that may arise out of the management by the Non-Defaulting Party of the Joint Venture so long as such Non-Defaulting Party acts in good faith. (c) Work in Progress If the Joint Venture is dissolved for any reason while there Is work fn progress in the development or construction or ongoing operation and maintenance of the Project, winding up of the affairs and germination of the business of the Joint Venture may include completion of the work in progress, as the Non-Defaulting Party may determine to be necessary to bring the Project to a state of completion convenient to permit a sale or sales of the Joint Venture's interest In the Project. 20 (d) AliocaI1 of Profits a—nd-Lmn (i] Profits and fosses of the Joint Venture following the date of dissolution shall be determined in accordance with the provisions of this Agreement and shall be credited or charged to the capital accounts of each Party in the same manner as profits and losses of the Joint Venture would have been credited or charged If there were no termination, dissolution and liquidation. For tax purposes, any taxable gain or any loss upon the sale, transfer, or other disposition of Joint Venture assets following the date of dissolution shall be allocated to the Parties in accordance with the allocation of profits and losses set forth In Subparagraph 10.04(d)(i). (e) Distribution In LfquidatIon If a Party shall have a negative balance in the Party's Capital Account,such Party shall immed late fy,and prior to any distributions made pursuant to this Paragraph 10.04(e), pay to the Joint Venture in cash an amount equal to the negative balance in said Party's Capital Account. The assets of the Joint Venture shall be applied or distributed In liquidation in the fallowing order of priority: (1) in payment of debts and obligations of the Joint Venture owed to third Parties, which shall include any Party as the holder of any secured loan; (ii) in payment of debts and obligations of the Joint Venture to any Party; (ill) to the Parties in payment of any positive balance remalning In the Capital Accounts. (f) Non Cash Assets Every reasonable effort shall be made to dispose of the assets of the Joint Venture in order that the distribution may be made to the Parties in cash. If at the time of the termination of the Joint Venture,the Joint Venture owns any assets in the form of work in progress, notes, deed of trust or other non-cash assets, such assets, if any, may be distributed in kind to the Parties, in lieu of cash, proportionately to their right to receive the assets of the Joint Venture on an equitable basis reflecting the net fair market value of the assets so distributed, which net fair market value shall be determined by appraisal in accordance with Article XI. (g) PispQsitign of 129cuments-And_91CD—rd-s All documents and records of the Joint Venture inciuding, without limitation, all financial records, vouchers, cancelled cheques and bank statements, shall be delivered to one of the Parties as agreed, assuming the Parties are in existence, upon termination of the Joint Venture. Unless otherwise approved by both of the 21 Parties,such documents and records shall be retained for a period of not less than tern(10) years in a Iocatlon not more than twenty(20) mlies from the head office of the Joint Venture at the date of its terminatlon, and such documents and records shall be made available during normal business hours to the Parties for inspection and copying at the cost and expense of the Party making such copies_ ►t IME x1 APPRAISAL 11.01 ABIrial Procedure Where any matter Is to be determined under this Agreement by appraisal, either Party may by written notice to the other appoint an appraiser. The other Parry may by written notice given to the first Party within teen (10) days following appointment of the first appraiser appoint a second appraiser. If no second appraiser Is appointed with the ten (10) day period, the first appraiser shall be the sole appraiser. Within five (5) days following appointment of the second appraiser the first appraiser and second appraiser shall by written notice to the Parties appoint a third appraiser,falling which either Party may on not less than five(5)days'written notice to the other Party apply to a judge of the Ontario Court(General Division)for appointment of a third appraiser. 11.02 Ancralser Each appraiser shalt be a disinterested person of recognized competence who is a member in good standing of the Appraisal institute of Canada and has been a member for a period of not less than five (5) years. Each appraiser shall proceed with the appralsees appraisal independently of the other appraisers. 11,03 Access to Reoords Each appraiser shall have access to all books of account, records, vouchers, cheques, papers and documents of each of the Parties which may relate to the Property and the Joint Venture. Each Party shall co-operate with each appraiser for the purpose and provide to all appraisers all Informadon and documents requested by any one of them_ In the determination of an appralsal, each appraiser shall have regard to all relevant considerations including historic and potential performance and shall make all proper and necessary allowances tot contingent or other liabilities, but shall make no allowance for goodwill. Each appraiser shall have the right to retain the experts the appraiser deems necessary to assist in the appraisal. Where the subject of any appraisal is the value of a Party's interest in the Property,each appraiser shall first determine the fair market value of the whole Property. 11.04 New A�als_er In case of failure, refusal or inability of arty appraiser to act, a new appraiser shall be 22 appointed in the same manner as provided for the appointment of the appraiser so falling, refusing or unable to act. Within forty-five (45) days alter the appointment of the third appraiser,each appraiser shall give written notice to the Parties,signed by the appraiser, of the amount of the fair market value of tha Property. Any appraisal,the amount of which differs by more than five percent t5%3 from the amount of that appraisal which is neither the highest nor lowest in amount, shall be disregarded and the average of the amounts of the remaining appraisals, or the amount of the remaining appraisal, If two of the appraisals are to be disregarded, shall be deemed the appraised value. The fair market value of the Par"Joint Venture Interest shall be equal to the fair market value of the Joint Venture as determined, multiplied by the proportion that the Party's Percentage Interest Is of the entire Joint Venture. t 1.45 Q9WlL1 n The lair market value determined in the foregoing manner shall be conclusive on the Parties and judgment in that regard may be entered in any court having jurisdiction. The costs and expenses of the appraisals,including the fees of the appraiser or appraisers, shall be home by the Party In respect of whom an event of bankruptcy or of default has occurred. AATICLE x1t FRUSMATLCi_NY P UFiP05ES 12.01 FrusLrJ[ion In the event that the Joint Venture is prevented,after all reasonable efforts,from carrying out the purposes of the Joint Venture, Me Parties shall attempt to restructure the Joint Venture, redefine the purposes of the Joint Venture and/or agree to the dissolution of the Joint Venture;and either the acquisition of one Party's Joint Venture Interest by the other, or the sale of the Property on joint account, each of which decisions shall be attempted to be arrived at in accordance with the original principles of the Joint Venture enunciated in Article III above, 12.02 Partteinattan Both Parties agree to participate in the decision-making process provided for by this Agreement and to participate ciNgenty and In good faith in the Joint Venture in accordance with the principles enunciated In Articie Ill above. A(allure to participate in the decision-making process or to attempt diligently and in good faith to further the purposes of the Joint Venture In accordance with the said principles,shall be an Event of Default under this Agreement AR11CL1<-M MEUTATLON 13.01 m2ija i r) In the event that a dispute arises between the Parties,or If the Parties should be unable 23 to arrive at an agreement on any matter requiring decision,and if such dispute cannot be resolved,or such a decislon made,the Parties agree to attempt to resolve the dispute or to make the decision in accordance with the following procedures: (a) The Parties agree that in the event that any dispute, disagreement on interpretatlon of this Agreement,or any matter on which agreement cannot be reached, arises,that the Parties will attempt in good faith to negotiate a resolution of such matter; (b) if the Parties are unable to resolve such matter, then the Parties agree to jointly appoint a mutually acceptable mediator within twenty(20) days. if they are unable to agree upon a mediator they will seek assistance from the Arbitration and Mediation institute of Ontario; (c) The Parties agree to participate in at least four (4) hours of mediation (unless the mediation Is terminated earlier by the mediator) during which time the mediator will attempt to facilitate a resolution of the dispute which is acceptable to both Parties. The mediator will not have the power to render a decision nor to force an agreement on the Parties but tha Parties shall make all reasonable efforts to resolve their dispute, or to make the required decision, by amicable negotiations and hereby agree to provide, without prejudice,frank, candid and timely disclosure of all relevant facts, information and documents to facilitate these negotiations. ARTICLE�11C AE1BrrAATI0N 14.01 Requirement of Arbitration In the event the Partles are not able to reach a resolution of a matter in dispute,or make a required decision, during mediation, nor within ten (10) days following the termination of mediation,then the matters remaining in dispute shall be finally settled by arbitration in accordance with the provisions of the Arbitrations Act of Ontario, as amended or replaced. 14.02 Arbitrat on Tribgnal The arbitration tribunal shalt consist of one(1)arbitrator appointed by mutual agreement of the Parties or, if they are unable to agree within thirty(30)days,then either Party may apply to a judge of the Ontario Court (General Division) to appoint an arbitrator. The arbitrator shall be qualified by training as an arbitrator and shall have some knowledge or experience pertaining to the matters to be decided. The rules of evidence will not apply during the arbitration but the arbitrator may In the arbitrator's discretion give less weight to evidence which would not otherwise be admissible. The arbitratoes award Is not subject to appeal. The arbitrator may deal with the question of costs of the arbitration and ail related matters. 24 AfHlCI xY SHERAL PRfJVtA"NS 15.01 I r n The Parties agree to attempt to obtain and maintain one policy of insurance to provide liability coverage for ft Parties, and ff the Parties are unable to do so, each Party shall maintain a policy of insurance for liability coverage In an amount of not less than $2,000,000.00 per occurrence. The Parties further agree that the cost of any claims advanced against one or more of the Parties in any way relating to fhe.Joint Venture and/or the Project and/or the Property Shall be allocated to the Parties In accordance with the Percentage Interest of each Party. 15.02 Re-rQur" in the event that any of the Parties wishes to relocate that portion of the utflity corridor and/or bicycle path and/or cross-country ski frail and/or recreation trail and/or related uses located within the Municipality of such Party, the Parties agree that such ra-routing shall be permitted on such terms and conditions as determined by the Board and that such re- routing shall be comp?eted at the sole cost of the Party requesting such re-routing. 15.03 Motorized Vehicles The Parties agree that at no time shall any motorized vehicles of any description be permitted on the Property, except with the authorization of the Board_ 15.04 Notices Any demand,notice or other communication to be given in connection with this Agreement (hereinafter referred to as a "Notice") shall be given In writing and shall be given by personal delivery,by registered mail or by electronic means of communication addressed to the recipient as follows: To The Corporatlon of the Village of 21 Pitt Street Port Burwell Pert Burnell, Ontarlo NOJ 1TO Fax No: (519) 874-4948 Attention: Ad ministrato rJC I e rk-Treas u r e r 25 To The Corporation of the Town of 200 Broadway Tilfsonburg: 2nd Floor,Suite 204 Tiilsonburg, Ontario N4G 5A7 Fax No: (519)842-9431 Attention: Administrator-Clerk or to such other address, individual or electronic communication number as may be designated by notice given by either Party to the other. Any Nonce given by personal delivery shall be conclusively deemed to have been given on the day of actual delivery thereof and, If given by registered mail, on the fourth (4th) business day following the deposit thereof in the mail and, if given by electronic communication, on the day of transmittal thereof if transmitted prior to 4:30 p.m_on such day and otherwise on the day next following the date of transmission, provided that if such day falls on a weekend or statutory holiday, then the Notice shall be deemed to have been given and received on the business day next following such day. if the Party giving any Notice knows or ought reasonably to know of any difficulties with the postal system which might affect the delivery of mail, any such Notice shall not be mailed but shall be given by personal delivery or by electronic communication. 15.05 AmendMents and Waiver No modification of or amendment to this Agreement shall be valid or binding unless set forth In writing and duly executed by both of the Parties hereto and no waiver of any breach of any term or provision of this Agreement shall be effective or binding unless made In writing and signed by the Party purporting to give the same and,unless otherwise provided, shall be limited to the specific breach waived. 15.06 Planning Act Any provisions of this Agreement requiring compliance with the Planning Act of Ontario are subject to the condition that such provisions shall be effective to create an interest on land only if a consent under the Planning Act, if required, is obtained by and at the expense of the Party obtaining an interest in land, 15.07 Further Assurance$ Each Party hereto agrees to do all acts and things and to make,execute and deliver such written Instruments, as shall from time to time be reasonably required to carry out the terms and provisions of this Agreement. 15.08 Bprden and Benefit This Agreement shall enure to the benefit of and be binding upon the permitted successors and assigns of the Parties hereto. 25 1 5.09 Time of Essence Time shaft be of the essence of this Agreement and of every part thereof_ 15.1fl Execution in !; unto erpsrts This Agreement may be executed in one or more counterparts, each of which when sea executed shall be deemed to be an original and all of which together shall Cons btu to one and the same Instrument. IN WITNESS WHEREdF the Parties have execuled this Agreement. } THE CORPORATION OF THE VILLAGE } OF PORT BURWELL } } Per. ] ToK 14K&tt, Reeve l } Per. } a 3d R.Fr dministratoYClerk-Treasure, } } } THE CORPORATION OF THE TOWN } OF TiLLSONBURG } } y } Per y cKnign% Mayorrator-Cl a ] Per. ] David Morris,Administerk } ROUSE S-r q r ❑ ?Se5SV i -� y cc �]- GRESNU„NE Otter Valley utility Corridor °C tr Status at November 22, 2004 LL LL 111 _ Notes: _ INE ti rs tt ,y ta° Tunnel Line South-Approved for Passive uses only v s` Tunnel Line North-No Approved Recreationa]uses c (r) yBO ARSON LINE,I Posted No Motor VehicleslTrespassing a °C ■ Leased by Abutting Owners(7) UUJ ' IX r❑EN r,NE_y Q n; Lateral Fencing(per Lease Agreement) N /� 1 °z �, mp — Lateral Fencing(Municipal Initiative) w a °4 0 - °�9 � Boundary Fencing• a, ENE 3 o�oa�4 0 �� v1NceNrr LINE' y� Permission for Landscape Improvements - .Q.,,E 1r`•_ q HOWEY LINEcc `I w yy o rn o I rCC lm - HER, AGE LINE ��� w ] l � a U r L0AF-RS LIf1E I � JAckso �• - JOHN WISELlNE� �a a � ❑ 1 i W ca ro ► 2 X - W a j� p II - _ Y I ftNNq :yrcrNF. �I L Llryf - E0� �i�ii GH11Tti LINE NO _ 1 r VASCOrIq SIN : Q z s rUryCl o L m Y N� r F ++� 2 lr _0 M N GCENER� dtv ECIryE. m w ti�aaltiv�lL II ..o O SIp„_ U� A_ Rail Trail A r - Guide Subject Lands Wnlcilpallty of N 4 1,200 2,4170 4,800 7,200 B AY H A M Meters Key Map LOT 16 y - LOT 17 LOT 18 CON 5 LOT 19 LOT 20 Ir Y k, Q4tr a DN LANE n a CON 4 LOT 15 LOT 16 LOT•17 ■���% CON 4 '�+,• ,-4 . ' LOT 18 LOT 19 LOT 20 LOT 21 CON 3 C,CHT CI►yE 1 ___J LOT 15 LOT!16 CON I.�OT17 ~ LOT 18 Rail Trail Section 1 — Casier—Agreement No. 0335 By-law No. 2003-075 Subject Lands Municipality f N •' p Y o a ,1 5 230 460 sso BAYHAM Meters Key Map LOT 15 LOT 16 LOT 17 CON 5 LOT 18 LOT 19 i LOT 20 Q LOT 21 a` CON 5 Q4t T0/V L�1yE J J 0 LOT 15 LOT 16 14 LOT 17 CON 4 LOT 18 LOT 19 LOT 20 rON�4 Rail Trail Section 2 — Froese —Agreement No. 0336 1 By-law No. 2003-076 Subject Lands Municipality f N p Y o 0 112.5 225 450 675 BAYHAM Meters Key Map LOT 15 LOT 16 7 LOT"17 Y z CON 5 LOT 18 a' M�OT9 --tee - LOT 15 LOT 16 ON 4 LOT 17 LOT 18 , LOT 19 Rail Trail Section 3 — Underhill's Farm Supply Agreement No. 0337 — By-law No. 2003-077 ® Subject Lands Municipality of N 0 75 150 300 450 B AY H A M Meters Key Map LOT.22 LOT 17 LOT 18 CON- LOT[21 LOT 19 LOT 20 CON 7 E L►NE Approximate Location of Fencing VP -16-_ NORTH QF 7ALBOT ROAD EAST J LOT 130 W NORTH OF TALBOT ROAD EAST a LOT 126 =r LOT 127 LOT 128 0 _ •4 Q" # LQT t 29 yam' Approximate Location of Fencing T Rail Trail Section 4 — Howey —Agreement No. 0212-01 By-law No. 2004-04 Subject Lands Municipality of 0 100 200 400 600 N B AY H A M Meters Key Map LOT_18 LOT 19 CON 8 LOT'20 EY proximate Location MAPLE GROVE LINE CON 8 LOT 21 LOT 22 LOT 23 Fencing f �V LOT 18 LOT_22 LOT 23 CON 7 LOT 19 ON 7 LOT 20 �LOT 21 Ho nFIJ.04F_ y0 Bt'ACK•BAfaG LJNE LOT 126 NORTH OFJALBOT ROAD EAST LOT 131 LOT 138 0 a W LOT 129 LOT..127 Q 7 LOT 128 NORTH OF TALBOT ROAD EAST 0 l � 0 cc W c� Q J e J Rail Trail - Section 5 —Wiebe —Agreement No. 2012-02 By-law No. 2004-035 ` Subject Lands Y o Municipality f N p a ,flfl �flfl 400 600 BAYHAM Meters Key Map Approximate Location of Fencing CON 3 NORTH OF�TALBOT ROAD EAST Approximate Location !I �y of Fencing ��_ 0. 0� 0C 0 y4 9,p l ',Po LOT 23 Qo CON 9 LOT 24 LOT 25 QV a CON 9 LOT 26 a W Il U_ a z U [A LOT 27 EDEN 11NE CON$ LOT•23 1 I LOT 24 LOT'25 Rail Trail Section 6 — Stewart —Agreement No. 2012-03 By-law No. 2004-036 Subject Lands Municipality f N p Y o 0 75 150 300 450 B AY H A M Meters Key Map LOT,23 CON 10 LOT 24 LOT 25 } CaR50N LINE , CON 4 NORTH OF TALBOT ROAD EAST 4o V 01 �4\ a� of Approximate Location of Fencing Approximate Location CON 3 NORTH OF TALBOT ROAD EAST of Fencing 0 LOT 23 X ,U CON g LOT.24 �LL O�'r C0 LOT 25 = p� y0 T LOT 26 • CON 9 4 9� I I i� LOT 27 . I Rail Trail Section 7 — Burwell —Agreement No. 2012-04 ' By-law No. 2004-037 Subject Lands Municipality f N p Y o fl 75 150 300 450 B AY H A M Meters Key Map REPORT o� y CAO �rtunity I5 TO: Otter Valley Utility Corridor Board of Management FROM: Paul Shipway, CAOIClerk DATE: September 11, 2019 REPORT: CAO-50/19 SUBJECT: UTILITY CORRIDOR FENCING & GATES BACKGROUND: The most frequent issue on the Otter Valley Utility Corridor is pertaining to trespass and vandalism of public and private property from off-road vehicle usage including deliberate vandalism by the same. On February 8, 2016 the Otter Valley Utility Corridor Board considered a request from Underhill Farm Supply to fence the portion of the utility corridor subject to Municipality of Bayham By-law No. 2003-077 and Municipality of Bayham Agreement No. 0337, The subject lands are encompassed within a 50 year lease with an additional 50 year renewal period. Pertaining to fencing, the Lease Agreement features the following provisions: ...Provided, however, that the Lessee shall be allowed to erect fencing around the subject lands, subject to the approval of the Lessors to allow the Lessee to prohibit individuals from accessing the lands as a trail. AND that the Lessee will not remove, alter or change the style or position of any fences on the said lands without the consent of the Lessor in writing... The Otter Valley Utility Corridor Board passed the following resolution pertaining to the Underhill Farm Supply Request: THAT Report CAO-09/16 re Otter Valley Utility Corridor— Underhill Farm Supply be received for information; AND THAT the Otter Valley Board of Management approve the request of Mr. Sebok of Underhill Farm Supply to erect fencing, at the sole cost of Underhill Farm Supply, around the perimeter of the subject property; AND THAT Underhill Farm Supply install a gate at the northwest corner of the property and provide the Municipality of Bayham and Erie Shores with a key; AND THAT the fencing conditions are contingent upon the Municipality of Bayham, Town of Tillsonburg and Erie Shores being granted permission to access the utility corridor through the Underhill Farm Supply property. On October 10, 2017 correspondence was sent to the Otter Valley Utility Corridor board of Management from Ms. Kristi Rockley concerning trespass and fencing along the Otter Valley Utility Corridor. On November 7, 2017 the Otter Valley Utility Corridor Board of Management passed the following resolution: THAT Bayham and Tillsonburg staff be directed to design page wire and steel gate specifications for annual site specific lateral utility corridor fencing construction utilizing annual Corridor Use Agreement allocations, for Board of Management considerations. On March 8, 2018 the Otter Valley Utility Corridor Board of Management passed the following resolution: THAT Report CAO-10/18 re RFQ 18-01 Supply & Installation of Utility Corridor Fencing be received for information; AND THAT the Otter Valley Utility Corridor Board of Management, direct Bayham staff to enter into an Agreement with Verdant for the Supply& Installation of Utility Corridor Fencing for Council consideration. AND THAT fence posts be spaced at four (4) metres for a cost of$6.50/ft of fence as per RFQ 18-01. AND THAT 2018 works be capped at an upset limit of$18,000. On April 5, 2018 Otter Valley Utility Corridor Board passed the following resolution pertaining to Utility Corridor Fencing: THAT Report CAO-37/18 re Utility Corridor Fencing & Gates be received for information; AND THAT staff be directed to proceed with work as per Report CAO-37/18. CARRIED Pursuant to the direction of the Otter Valley Utility Corridor Board of Management, fencing was installed as depicted in Appendix `A' and described as follows: Location Fencing Approximate Recommended Length Chute Line— South Yes 10 metres Chute Line— North Yes 40 metres Light Line— South Yes 15 metres Light Line— North Yes 15 metres Calton Line — South No N/A Jackson Line — South Yes 30 metres Jackson Line — North Yes 30 metres Heritage Line — South Yes 15 metres Heritage Line — North No N/A Black Bridge Line — South Yes 20 metres Black Bridge Line — North Yes 20 metres Plank Road No N/A Maple Grove Line — South Yes 15 metres Maple Grove Line — North Yes 20 metres Plank Road No N/A Eden Line — South Yes 15 metres Eden Line — North Yes 20 metres Schaffer Road — South Yes 30 metres Schaffer Road — North No N/A Baynor Road — South No N/A Baynor Road - North Yes 15 metres Maintenance of the Otter Valley Utility Corridor and the fencing is conducted based on: 1) Annual Public Works site inspections 2) Complaint based works Staff would comment that fencing has the ability to slow down and inhibit trespassers however it does not completely stop trespass. In some situations a new trail will simply be cut through the neighbouring property back onto the main corridor. In 2018 and into 2019 the level of maintenance on the Utility Corridor has progressed from miscellaneous works the Municipality of Bayham Public Works Department completes to a level of effort and resources that will require the Municipality of Bayham to invoice the Town of Tillsonburg for 50% of labour and materials moving forward. DISCUSSION The Municipality of Bayham has continued to receive both formal and informal complaints and requests concerning trespass on the Otter Valley Utility Corridor. The 2018 fence works assisted in reducing concerns until the trail was brushed by Erie Shores (as is its contractual right) which opened up additional access areas and the off-road vehicle issues have subsequently increased. In 2019 Municipality of Bayham staff conducted an assessment and determined additional fencing could be installed as follows: Location Existing Proposed Approximate Additional Length Fencing Chute Line — South 10 metres 24 metres Chute Line — North 40 metres 12 metres Light Line — South 15 metres 12 metres Light Line — North 15 metres N/A Calton Line — South N/A 60 metres Jackson Line — South 30 metres 9 metres Jackson Line — North 30 metres 12 metres Heritage Line — South 15 metres N/A Heritage Line — North N/A N/A Black Bridge Line — South 20 metres N/A Black Bridge Line — North 20 metres N/A Plank Road N/A N/A Maple Grove Line — South 15 metres N/A Maple Grove Line — North 20 metres 15 metres Plank Road N/A N/A Eden Line — South 15 metres Rebuild (15 metres) Eden Line — North 20 metres 12 metres Schaffer Road — South 30 metres 12 metres Schaffer Road — North N/A N/A Baynor Road — South N/A N/A Baynor Road - North 15 metres 12 metres Subsequently, staff sought an estimate from a local contractor that provides fence works for the Municipality of Bayham (Dean Franklin Construction)— The Municipality was unsatisfied with continuing to utilize the services of Verdant. For the approximately 195 metres of fence work Franklin Construction Inc. submitted an estimate of $9,933.99+HST. This estimate includes placing fencing (approximately 60 metres) on the south side of Calton Line as requested by Mr. Wayne Casier. This is relevant as he is subject to Agreement No. 0335, By-law No. 2003-075 and as such technically cannot request fencing, however it may assist in deterring off-road vehicle use. RECOMMENDATION 1. THAT Report CAO-50/19 re Utility Corridor Fencing & Gates be received for information; 2. AND THAT the Otter Valley Utility Corridor Board of Management provide staff direction. Respectfully Submitted by: Paul Shipway CAOIClerk ELGIN MAPPING Chute Line Legend Lagoons Local Arterial Highways World Street Map 4' 4� y Ir 1: 1,665 Notes 0.1 0 0.04 0.1 Kilometers This map is a user generated static output from an Internet mapping s to and is for reference only.Data layers that appear on this map may or may not be accurate, WGS_1984_Web-Mercator_AuxiIiary_Sphere current,or otherwise reliable- 0 Latitude Geographics Group Ltd. THIS MAP IS NOT TO BE USED FOR NAVIGATION .emu'- •`•- ELGIN MAPPING Light Line Legend r• [I Lagoons Local Arterial — Highways World Street Map 1: 1,6b5 Notes t].S 6 0.04 0-1 Kilometers This map is a user generated static output from an inie:nel mapping site and is far reference only,Data layers that appear on this map may or may not be accurate. WGS_1984_Web_Mercator_AuxiIiary_Sphere current,or otherwise reliable- 0 Latitude Geographies Group Ltd- THIS MAP IS NOT TO BE USED FOR NAVIGATION ELGIN MAPPING Caton line k7 � r_ Legend - r+r _ Parcels Lagoons f Local 0 Arterial Highways World Street Map 4 - � r I 1: 13,317 Notes 0.7 6 0"34 0"7 Kilometers This rn i:) s_user genersteu s:.s: Outt:ut from an Internet mapping site and is for reference Only.Data layers that appear on this map may or may not be accurate, WGS_1984_Web..Mercator_Auxiliary.5phere current,or otherwise reliable- 0 Latitude Geographies Group Ltd" THIS MAP IS NOT TO BE USED FOR NAVIGATION ELGIN MAPPING Jackson Line Legend Lagoons Local Arterial — Highways World Street Map f kk = S i I � r r i: 3,329 Notes 0.2 0 6.08 02 Kilometers This map is a user generated static output from an Internet mapping site and is for reference only.Data layers that appear on this map may or may not be accurate. WGS_1984_Web_Mercator_Auxiliary_Sphere current,or otherwise reliable- ©Latitude Geographies Group Ltd. THIS MAP IS NOT TO BE USED FOR NAVIGATION Oh ELGIN MAPPING Heritage Line 4 Legend El Lagoons �'' '•� Local P Arterial r" Highways World Street Map � F e p ! w t 1: 3,329 Notes 0.2 6 0.08 0.2 Kilometers This map is a user generated s:at;c output from an Internet mapping site and is for reference only.Data layers that appear on this map may or may not be accurate, WGS_1984_Web_Mercator_AuxiIiary.5phere current,or otherwise reliable. Q Latitude Geogrdphics Group Ltd. THIS MAP IS NOT TO BE USED FOR NAVIGATION ELGIN MAPPING Black Bridge Line Legend Lagoons Local Arterial Highways World Street Map 1: 3,329 Notes 0.2 a 0.08 0.2 Kilometers This map is a user generated static output from an Internet mapping site and is for reference only.Data layers that appear on this map may or may not be accurate. WGS_1984_Web_Mercator_AuxiIiary_Sphere current,or otherwise reliable- 0 Latitude Geographics Group Ltd. THIS MAP IS NOT TO BE USED FOR NAVIGATION ELGIN MAPPING Plank Rd .4 • _ Legend ❑ Parcels Lagoons Local ' Arterial Highways World Street Map Notes 0.2 6 0.08 02 Kilometers This map is a user generated static output Ircrn an inae:neL mapping site and is{or reference only.Data layers that appear on this map may or may not be accurate. WGS_1984_Web_Mercator_AuxiIiary-Sphere current,or otherwise reliable- ©Latitude Geographies Group Ltd- THIS MAP IS NOT TO BE USED FOR NAVIGATION ELGIN MAPPING Maple Grave Line ` Legend Lagoons Local Arterial Highways ilk World Street Map F 1: 3,329 Notes 0.2 a 0.08 0.2 Kilometers This map is a user generated static output from an Internet mapping site and is{or reference only.Data layers that appear on this map may or may not be accurate. WGS..1984_Web_Mercator_AuxiIiary.5phere current,or otherwise reliable- 0 Latitude Geographies Group Ltd- THIS MAP IS NOT TO BE USED FOR NAVIGATION ELGIN MAPPING Plank Rd r f Legend ❑ Parcels Lagoons Local �. Arterial Highways r{ World Street Map •t r r ri k a 1: 6,659 Notes 0.3 6 0.17 0.3 Kilometers I ru;rnap is a u,er generated s:at.c output from an Inte,net mapping site and is far reference only,Data layers that appear on this map may or may not be accurate, WGS_1984_Web_Mercator_AuxiIiary-Sphere current,or otherwise reliable. Q Latitude Geographies Group W. THIS MAP IS NOT TO BE USED FOR NAVIGATION Oh ELGIN MAPPING Eden Line A y Legend Lagoons Local Arterial — Highways n World Street Map r -4 1: 3,329 Notes t1.2 a 0.08 02 Kilometers This map is a user generated static output from an Internet rnapping site and is{or reference only.Data layers that appear on this map may or may not be accurate, WGS_19&4_Web Mercator_Auxiliary_Sphere current or otherwise reliable. 0 Latitude Geographies Group Ltd. THIS MAP IS NOT TO BE USED FOR NAVIGATION Oh ELGIN MAPPING Schafer Rd Legend Lagoons Local Arterial r' — Highways World Street Map •r 4 ~ k 1: 3,329 Notes 0.2 a 0.08 0-2 Kilometers This map is a user generated static output from an Internet mapping site and is for reference only.Data layers that appear on this map may or may not be accurate. WGS_1984_Web_Mercator_AuxiIiary_Sphere current,or otherwise reliable- 0 Latitude Geographics Group Ltd- THIS MAP IS NOT TO BE USED FOR NAVIGATION Oh ELGIN MAPPING Baynor Rd Legend Lagoons Local Arterial Highways World Street Map x i • i t" 4, 1: 3,329 All 0 Notes 0.2 6 0.08 0-2 Kilometers This map is a user generated static output from an Internet rr.al)Niny site and is For reference only,Data layers that appear on this map may or may not be accurate, WGS_1984_Web_Mercator_AuxiIiary_Sphere current,or otherwise reliable- 0 Latitude Geographics Group Ltd- THIS MAP IS NOT TO BE USED FOR NAVIGATION - REPORT CAO p0j'tunity Is TO: Otter Valley Utility Corridor Board of Management FROM: Paul Shipway, CAOICIerk DATE: September 11, 2019 REPORT: CAO-51/19 SUBJECT: UTILITY CORRIDOR—TUNNEL LINE CULVERT BACKGROUND In the fall of 2018 the Municipality of Bayham became aware of a culvert under the Otter Valley Utility Corridor which had not been previously inspected by the Otter Valley Utility Corridor Board of Management. Municipality of Bayham staff contacted Mr. John Spriet, Consulting Engineer to conduct an informal assessment of the Tunnel Line Culvert as the culvert appeared to be in a significantly deteriorated condition. Further, potential culvert failure would have a substantial impact on nearby municipal and private infrastructure. The location of the subject culvert is as outlined in Appendix `A'. Pictures of the condition of the subject culvert are attached hereto as Appendix `B' Mr. John Spriet provided the following commentary pertaining to removal of the subject culvert: In our opinion the removal of a culvert would be schedule A+ EA. This would require a notice of project not a study, however a Heritage Assessment would be required. The best approach to this would be for my planner to photograph the culvert and prepare the heritage form, which would be forwarded to a heritage planner for their review. • The Heritage Assessment is estimated at$3,000+HST • Removal of the culvert is estimated at$175,000+HST Given the significant amount of fill and the proximity of 115,000 kV power line poles in the vicinity of the Tunnel Line Culvert, Town of Tillsonburg and Municipality of Bayham staff requested Spriet Associates to provide a formal assessment and options report with a breakdown of costs and suggested removal process for the consideration of the Otter Valley Utility Board of Management. Spriet Associates will deliver the report in late fall 2019. RECOMMENDATION 1. THAT Report CAO-51/18 re Utility Corridor—Tunnel Line Culvert be received for information. Respectfully Submitted by: Paul Shipway CAOIClerk ELGIN MAPPING Map Title 4ze", rt - - . Legend ❑ Parcels � . [ Lagoons Local Arterial Highways World Street Map 1 f� i L^+ 1: 3,329 Notes 0.2 0 0.08 0.2 Kilometers This map is a user generated static output from an Internet mapping site and is for reference only.Data layers that appear on this map may or may not be accurate, WGS_1984_Web_Mercator_Auxiliary—Sphere current,or otherwise reliable. ©Latitude Geographics Group Ltd. THIS MAP IS NOT TO BE USED FOR NAVIGATION r �4w .= f