LAND EXCHANGE CONTRACT. CITY OF VANCOUVER - and - BRENHILL DEVELOPMENTS LIMITED (Incorporation # )

Transcription

1 LAND EXCHANGE CONTRACT Effective Date: January 28, 2013 Parties: CITY OF VANCOUVER - and - BRENHILL DEVELOPMENTS LIMITED (Incorporation # ) Consideration: Contract Terms and Conditions: In return for the Deposit and Brenhill s agreements, the receipt and sufficiency of which the City acknowledges, and in return for the City s agreements, the receipt and sufficiency of which Brenhill acknowledges, the City and Brenhill agree to be bound by the terms and conditions of this Contract. The City and Brenhill represent and agree that: SECTION 1 INTERPRETATION 1.1 Definitions In this Contract: Society means The 127 Society for Housing; Society Lease means that lease to be entered into between the City, as landlord, and 127 Society, as tenant, and registered against title to the Brenhill Exchange Land on or after the Closing Date, with respect to the lease of the New Affordable Housing Project; BC Housing means the Provincial Rental Housing Corporation; Brenhill means Brenhill Developments Limited (Incorporation # ); Brenhill Exchange Land means those lands with a civic address of Richards Street and legally described as: PID: , Lot 20, Block 84, District Lot 541, Plan 210; PID: , Lot 21, Block 84, District Lot 541, Plan 210; PID: , Lot 22, Block 84, District Lot 541, Plan 210; and PID: , Lot 23, Block 84, District Lot 541, Plan 210, and with a deemed market value of Eight Million Four Hundred Thousand Dollars ($8,400,000.00) Brenhill Exchange Land Permitted Charges mean reservations and exceptions contained in the original Crown grant and those legal notations, charges, liens and interests set out in item 1 of Schedule A attached hereto;

2 City means the City of Vancouver; City Exchange Land means the City Property and the City Lane collectively and with a deemed market value of Fifteen Million Dollars ($15, ); City Exchange Land Permitted Charges mean reservations, exceptions, conditions, restrictions or provisos contained in any Crown grants or disposition of the City Exchange Land, unregistered rights of way, easements or restrictive covenants in favour of government bodies or public utilities and those legal notations, charges, liens and interests set out in item 2 of Schedule A attached hereto; City Lane means that portion of the Lane, to be stopped up and closed and included as part of the City Exchange Land, as agreed to by the parties in accordance with Section 4.3.1(b); City s Legal Director means the Director of Legal Services for the City of Vancouver; City Property means those lands with a civic address of 508 Helmcken Street legally described as: PID: , Lot 34, Block 94, District Lot 541, Plan 210; PID: , Lot 35, Block 94, District Lot 541, Plan 210; PID: , Lot 36, Block 94, District Lot 541, Plan 210; PID: , Lot 37, Block 94, District Lot 541, Plan 210; and PID: , Lot 38, Block 94, District Lot 541, Plan 210; Closing Date means that date that is fifteen (15) days following the satisfaction or waiver of all of the conditions set forth in Sections 4.1, 4.2 and 4.3 of this Contract (or if such date is not a business day, the first business day thereafter), or such other date as may be agreed to between Brenhill and the City; CMHC means Canada Mortgage and Housing Corporation; CMHC Charges means: (a) (b) (c) (d) Mortgage BK (being a transfer of Instrument No. N79950 as transferred by BE214912), as modified by Mortgages P103370, BK347854, BL and BM114700; Assignment of Rents BK (being an assignment of Instrument No. N79951 as transferred by BE214913); Mortgage BM295775; and Assignment of Rents BM295776, all registered against title to the City Property; Contaminants mean any substances, the manufacture, storage, handling, treatment, generation, use, transport, release, disposal or discharge of into the Environment, which are controlled, regulated, licensed, or prohibited under any Environmental Laws or which

3 - 3 - are or may otherwise be deleterious, dangerous or hazardous to human, animal or plant health or life or to the Environment; Contract means this document and attached schedules; Deposit means One Dollar ($1.00); Development Agreement means that agreement to be entered into between Brenhill, the City, 127 Society and BC Housing with respect to the development of the New Affordable Housing Project on the Brenhill Exchange Land; Effective Date means the date set out at the start of this Contract; Environment means land including soil, sediment deposited on land, fill and land submerged under water, air including all layers of the atmosphere, and water including oceans, lakes, rivers, streams, ground water, and surface water; Environmental Laws mean all laws, statutes, regulations, rules, by-laws, orders, directives, standards, guidelines, and other lawful requirements of any government body including the Environmental Management Act of British Columbia and its regulations, and all principles of common law and equity concerning Contaminants or the use, treatment or quality of the Environment that apply to the City Exchange Land and its surrounding Environment or the Brenhill Exchange Land and its surrounding Environment now or any time in the future; General Manager of Engineering Services means the Chief Administrator from time to time of the City s Engineering Services Department and his successors in function and their respective nominees; GST means any value added taxes levied under the Excise Tax Act (Canada), including the goods and services tax or the harmonized sales tax, as may be in effect from time to time; including means including, without limitation ; Lane means the portion of road labelled as Lane as shown on Reference Plan BCP41110; LTO means the New Westminster Land Title Office; MOE means the Minister of Environment for British Columbia, or his successor in function, and any person, including the director, from time to time acting as the nominee, delegate or agent of the Minister; New Affordable Housing Project means the social housing project to be developed and constructed by Brenhill on the Brenhill Exchange Land prior to the Closing Date in accordance with the terms of this Contract and the Development Agreement; Person means any legal entity including any individual, firm, corporation, or government body;

4 Plans means the reference plan to accompany the City Council resolution to stop up and close the Lane; and an explanatory plan or reference plan to consolidate the City Property and the City Lane to form the City Exchange Land, all prepared and obtained by the City, at Brenhill s sole cost and expense, by a British Columbia Land Surveyor, in form and substance satisfactory to the City s Legal Director and acceptable for deposit in the LTO; Representative means the firm of lawyers or notaries public that Brenhill appoints to represent them in this land exchange transaction; Statutory Right of Way means the statutory right of way to be granted to the City pursuant to Section 4.1.6; Statutory Right of Way Plan means the plan to accompany the Statutory Right of Way; Temporary Statutory Right of Way means the temporary right of way to be granted to the City pursuant to Section 4.1.7; Transfer of the City Exchange Land means a Form A transfer of estate in fee simple transferring title to the City Exchange Land from the City to Brenhill; Transfer of the Brenhill Exchange Land means a Form A transfer of estate in fee simple transferring title to the Brenhill Exchange Land from Brenhill to the City; and Transfers mean collectively the Transfer of the City Exchange Land and the Transfer of the Brenhill Exchange Land. 1.2 Interpretation The following provisions will apply to this Contract: sections and headings are for convenient reference, and are not to affect the meanings of provisions, and use of the singular or masculine includes the plural, feminine, or body corporate, and vice versa; if a court of competent jurisdiction finds any provision invalid, illegal, or unenforceable, and severs it from this Contract, the remaining provisions are to remain in force and effect; the City and Brenhill will interpret the language of this Contract simply, fairly, and not strictly for or against either of them; time will be of the essence, and if Brenhill or the City expressly or impliedly waives that requirement, Brenhill or the City may re-instate it by delivering notice to the other; this Contract represents the entire agreement between Brenhill and the City regarding the matters set out in it, and supersedes all prior agreements, understandings, letters of intent, negotiations, or discussion about those matters save and except for the Proforma Version 9.1 dated October 17, 2012, and no amendment is to have any force or effect unless Brenhill and the City have signed it;

5 references to statutes and by-laws are to them as they exist on the Effective Date, and to later amendments or replacements of them; and if Brenhill is comprised of more than one Person, Brenhill s representations and agreements will be joint and several. 2.1 Land Exchange 2.2 Closing SECTION 2 LAND EXCHANGE Subject to the terms and conditions of this Contract, Brenhill will transfer the Brenhill Exchange Land to the City on the Closing Date free from all liens, charges, encumbrances, equities, claims, encroachments and defects in title except for the Brenhill Exchange Land Permitted Charges; and Subject to Section 5.15, the City will transfer the City Exchange Land to Brenhill on the Closing Date free from all liens, charges, encumbrances, equities, claims, encroachments and defects in title except for the City Exchange Land Permitted Charges. The completion of the land exchange set out in Section 2.1 will occur on the Closing Date. 3.1 City s Representations SECTION 3 REPRESENTATIONS Regardless of any independent investigations Brenhill may make, the City represents to Brenhill, as representations that are true and correct on the Effective Date and will be true and correct on the Closing Date, that: in response to Brenhill s inquiry under Section 116 of the Income Tax Act (Canada) and under Part IX of the Excise Tax Act (Canada), the City is not a non-resident of Canada within the meaning of those Acts, and, in the case of the Excise Tax Act, the City is not a non-resident in Canada by reason other than subsection 32(2) which deems a non-resident to be resident in Canada if that non-resident has a permanent establishment in Canada; the City on the Closing Date will be the registered and beneficial owner of the City Exchange Land and will have good title to the City Exchange Land, free from all liens, charges, or encumbrances, except for City Exchange Land Permitted Charges, and has sufficient, power, authority, and capacity to execute and deliver this Contract to Brenhill; by completing the exchange of the City Exchange Land to Brenhill, the City will not be in breach of any statute or bylaw or of any agreement by which the City is bound;

6 except for City Exchange Land Permitted Charges, the City will not owe money to any Person which will constitute a lien, charge, encumbrance, or claim against the City Exchange Land; and the City has no knowledge that any government body intends to expropriate all or part of the City Exchange Land, or that any government body has issued or intends to issue any order or notice regarding the City Exchange Land. 3.2 No Other Representations by the City The City Exchange Land is being transferred to Brenhill as is where is and the City has made no agreement, representation or warranty of any kind as to the physical condition, environmental condition or otherwise of the City Exchange Land or the fitness or suitability of the City Exchange Land (including as to applicable zoning or land use designation) for the uses intended by Brenhill. Brenhill waives any requirements for the City to provide Brenhill with a site profile for the City Exchange Land under the Environmental Management Act of British Columbia or any regulations pursuant to said Act and Brenhill will, at its sole cost and expense, if it is determined that the City Exchange Land or the Brenhill Exchange Land contains Contaminants, remediate the soils and vapour to residential standards and groundwater to applicable standards and obtain a numerical Certificate of Compliance to residential standards with respect to the City Exchange Land and/or the Brenhill Exchange Land, as applicable or, in the City s sole and absolute discretion, a risk based Certificate of Compliance with site specific conditions satisfactory to the City, issued by the MOE pursuant to the Environmental Management Act, and the City is not giving to Brenhill, and Brenhill is not requiring from the City, any express or implied representation regarding the dimensions or area of the City Exchange Land or that, before or after the Effective Date or Closing Date: the City Exchange Land and its Environment complies or does not comply with Environmental Laws; the City Exchange Land and its Environment is or is not free from Contaminants; any Contaminants have or have not been released, spilled, leaked, pumped, poured, emitted, emptied, discharged, dumped or disposed of, or have or have not escaped, leached, or migrated, from the City Exchange Land and its Environment to, on, or under adjacent lands or their surrounding Environment; and the City Exchange Land will or will not be environmentally or otherwise suitable for any purpose including occupancy, development, or derivation of revenue. 3.3 Brenhill s Representations Regardless of any independent investigations the City may make, Brenhill represents to the City, as representations that are true and correct on the Effective Date and will be true and correct on the Closing Date, that: it is a corporation, is in good standing under the laws of British Columbia, and it has sufficient power, authority, and capacity to deliver this Contract to the City and to transfer the Brenhill Exchange Land to the City;

7 in response to the City s inquiry under Section 116 of the Income Tax Act (Canada) and under Part IX of the Excise Tax Act (Canada), it is not a non-resident of Canada within the meaning of those Acts, and, in the case of the Excise Tax Act, it is not a non-resident in Canada by reason other than subsection 32(2) which deems a non-resident to be resident in Canada if the non-resident has a permanent establishment in Canada; it has no knowledge that any person has taken or intends to take, or has threatened to take, action, suit or proceeding which could adversely affect the Brenhill Exchange Land, its title to the Brenhill Exchange Land or its right to transfer the Brenhill Exchange Land to the City or of any potential claim for any breach of Environmental Laws or any other potential liability respecting or arising from the environmental condition of Brenhill s Exchange Land, including any Contaminants that may have migrated therefrom; on the Closing Date, Brenhill will be the registered and beneficial owner of the Brenhill Exchange Land, and will have good title to the Brenhill Exchange Land, free from all liens, charges, encumbrances, equities, claims, encroachments, and defects in title, except for the Brenhill Exchange Land Permitted Charges; by completing the transfer of the Brenhill Exchange Land to the City and accepting the transfer of the City Exchange Land and by granting the charges referred to in this Contract, it will not be in breach of any statute or by-law or of any agreement by which it is bound; on the Closing Date, it will not owe money to any Person which will constitute a lien, charge, encumbrance, or claim against the Brenhill Exchange Land; Brenhill has no knowledge that any government body intends to expropriate all or part of the Brenhill Exchange Land, or that any government body has issued or intends to issue any order or notice regarding the Brenhill Exchange Land; subject to Section 3.3.9, on the Closing Date, the Brenhill Exchange Land will comply with all Environmental Laws and no Person is investigating or has claimed non-compliance; the Brenhill Exchange Land (soils and vapour) contains no Contaminants in excess of residential standards (and with respect to groundwater it meets required applicable standards) or if the Brenhill Exchange Land contains Contaminants in excess of residential standards, Brenhill will obtain and provide to the City, on or before the Closing Date a numerical Certificate of Compliance to residential standards or, in the City s sole and absolute discretion, a risk based Certificate of Compliance with site specific conditions satisfactory to the City, issued by the MOE pursuant to the Environmental Management Act or written confirmation from the MOE that, after review of the site profile for the Brenhill Exchange Land (submitted by Brenhill), nothing further is required under that Act in order for the Brenhill Exchange Land to meet residential standards; and it had not released, spilled, poured, emitted, emptied, discharged, dumped or disposed of any Contaminants into the Brenhill Exchange Land or its surrounding Environment.

8 - 8 - SECTION 4 CONDITIONS 4.1 City s Conditions Despite anything to the contrary in this Contract, the City s obligation to complete the transfer of the City Exchange Land to Brenhill will be subject to the conditions that: on or before February 22, 2013: (a) the City Council will have approved in principle of: (i) (ii) the closing and stopping up of the Lane (which is subject to the approval of the rezoning of the City Exchange Land at a public hearing and further City Council approval to stop-up, close and convey the City Lane); and the conditional transfer of the City Exchange Land to Brenhill; (b) (c) the City s Legal Director, the Director of Real Estate Services and the General Manager of Engineering Services will have approved the terms and conditions of this Contract; and the City will have received the conditional surrender executed by 127 Society of the lease registered against the City Exchange Land as Instrument Number N69609; on or before the April 29, 2013: (a) (b) (c) the City will have received approval from 127 Society and BC Housing, as applicable, regarding the terms of the 127 Society Lease and the City will have received City Council approval of the terms of the 127 Society Lease; the City will have received approval from 127 Society, BC Housing and CMHC, as applicable, regarding the transfer of the CMHC Charges from 127 Society s leasehold interest in the City Property to 127 Society s leasehold interest that will be registered against title to the Brenhill Exchange Land on or after the Closing Date, including without limitation CMHC s approval of priority required by the City with respect to charges in favour of the City in satisfaction of the regulatory requirements regarding issuance of the development permit for the Brenhill Property; the City will have received confirmation that the terms of the non-market housing operating agreement between 127 Society, BC Housing and, the City, with respect to the management, unit count, tenant mix, operation, occupancy criteria and reporting requirements relating to the New Affordable Housing Project have been approved by all parties and the City will have received City Council approval of the terms of the said agreement;

9 - 9 - (d) (e) City will have received confirmation that 127 Society is satisfied as to the affordability of the New Affordable Housing Project, including without limitation that the cost of leasing the New Affordable Housing Project under the New Lease, the cost of repairing, maintaining and operating the New Affordable Housing Project and the cost of servicing any debt of the 127 Society relating to the New Affordable Housing Project and that it is affordable to 127 Society given the anticipated market and non-market rental revenue to be earned by 127 Society from the New Affordable Housing Project; and the City will have received confirmation satisfactory to it that all other required approvals from 127 Society, BC Housing and CMHC, as applicable, regarding the transactions contemplated in this Contract have been obtained; on or before July 29, 2013, the City will have received preliminary City Council approval with respect to: (i) the closure and stop-up of the Lane; and (ii) the conveyance of the City Lane to Brenhill in accordance with the terms of this Contract and pursuant to the approved rezoning of the City Exchange Land; on or before November 29, 2014: (a) (b) (c) the City will have approved and will have received confirmation that 127 Society and BC Housing have approved of the terms of the construction contract to be entered into by Brenhill and Brenhill s construction contractor with respect to the construction of the New Affordable Housing Project, including the non-market housing design, plans and construction specifications (including without limitation the chattels/equipment for the New Affordable Housing Project) to be developed jointly by the City, Brenhill, 127 Society and BC Housing; Brenhill will have obtained all development permits, building permits and other permits and approvals including, without limitation, all environmental approvals that may be required from the City or any other Person having jurisdiction with respect to the development and construction of the New Affordable Housing Project; and Brenhill will have confirmed in writing and provided evidence satisfactory to the City, that it has received the required financing for the development and construction of the New Affordable Housing Project; on or before December 1, 2015: (a) Brenhill will have substantially completed construction of the New Affordable Housing Project in accordance with the terms of the Development Agreement, including, for certainty, obtaining all required final or conditional occupancy permits for the New Affordable Housing Project permitting occupancy of the New Affordable Housing Project for the purposes for which it is intended to be used; and

10 (b) the City, 127 Society and BC Housing, as applicable, conducting and being satisfied in writing with a deficiency walk-through of the New Affordable Housing Project following completion of construction by Brenhill and being satisfied in writing with the time-frame for the rectification of agreed deficiencies; on or before the Closing Date, Brenhill will have executed and delivered to the City, in registrable form, if required by the City, a Statutory Right of Way for utilities (including without limitation a storm sewer) over a portion of the City Exchange Land, to be prepared by the City s Legal Department; on the Closing Date, if requested by the City in writing at least thirty (30) days prior to the Closing Date, Brenhill will have executed and delivered to the City, in registrable form, a Temporary Statutory Right of Way over the City Exchange Land, if required by the City, (which will be released when all public utility work/relocations have been completed), to be prepared by the City s Legal Department; prior to the Closing Date, Brenhill will provide to the City written confirmation, if required by the City, satisfactory to the General Manager of Engineering Services, from utility companies, if any, that have utilities within the City Lane, that arrangements for the relocation or removal of the utilities from the City Lane, both above and below ground, have been made to the satisfaction of the utility companies and that they have no objections to the closure of the City Lane; on or before the Closing Date, the City will have received confirmation that all of 127 Society s conditions precedent set out in the Surrender of Lease, among the City, Brenhill and 127 Society dated for reference January 31, 2013 have been removed or waived by 127 Society; on the date of enactment of the rezoning of the City Exchange Land, Brenhill will have provided the City with a bank draft in the amount of One Million Dollars ($1,000,000.00) with respect to the City s Affordable Housing Fund; on the Closing Date, Brenhill s representations set out in Section 3.3 will be true and correct; and on the Closing Date, Brenhill will have complied with all of its obligations under this Contract unless there are obligations which the Contract expressly requires them to comply with after the Closing Date. 4.2 Brenhill s Conditions Despite anything to the contrary in this Contract, Brenhill s obligation to complete the transaction contemplated by this Contract will be subject to the conditions that:

11 on or before July 29, 2013 Brenhill being satisfied, in its sole discretion, with all of its due diligence investigations, including all environmental investigations, of the City Exchange Land; and on or before the Closing Date, the City s representations set out in Section 3.1 will be true and correct. 4.3 Mutual Conditions Despite anything to the contrary in this Contract, the City and Brenhill s obligation to complete the transaction contemplated by this Contract will be subject to the mutual conditions that; on or before April 29, 2013: (a) (b) the City, Brenhill, 127 Society and BC Housing (if required) will have executed and delivered the Development Agreement and the City will have received City Council approval of the terms of said agreement; and the City and Brenhill will have mutually agreed as to which portion of the Lane will comprise the City Lane to be transferred to Brenhill as part of the City Exchange Land, subject to City Council approval; on or before July 29, 2013: (a) (b) the rezoning of the City Exchange Land will have been approved in principle by City Council (after a public hearing to consider the said rezoning) with respect to the construction of a new development by Brenhill on the City Exchange Land following the Closing Date, containing approximately 365,000 square feet of density (or such additional square footage of density as may be required by Brenhill as part of its rezoning application); and the City and Brenhill will have mutually agreed on the layout of, and approved in principle the form of, all Plans and the Statutory Right of Way Plan; subject to City Council approval. 4.4 Effect of Conditions The conditions in Section 4.1 are for the City s benefit and the City may satisfy or waive those conditions in whole or in part at any time on or before the applicable date noted in Section 4.1. If the City does not notify Brenhill on or before 5:00 p.m. on the applicable date noted in Section 4.1 that it has satisfied or waived the applicable City conditions contained in Section 4.1, then the City and Brenhill will be deemed to have terminated this Contract and it will have no further force or effect, and the parties hereto will have no further obligations to, nor rights against, the other in respect of this Contract, except for any obligations of the parties which are expressly stated to survive the termination of this Contract.

12 The conditions in Section 4.2 are for Brenhill s benefit and Brenhill may satisfy or waive those conditions in whole or in part at any time on or before the applicable date noted in Section 4.2. If Brenhill does not notify the City on or before 5:00 p.m. on the applicable date noted in Section 4.2 that it has satisfied or waived the applicable Brenhill conditions contained in Section 4.2, then the City and Brenhill will be deemed to have terminated this Contract and it will have no further force or effect, and the parties hereto will have no further obligations to, nor rights against, the other in respect of this Contract, except for any obligations of the parties which are expressly stated to survive the termination of this Contract The mutual conditions in Section 4.3 are for the mutual benefit of both Brenhill and the City, and both Brenhill and the City may satisfy or waive those conditions in whole or in part at any time on or before the applicable date noted in Section 4.3. If both Brenhill and the City do not notify the other party on or before 5:00 p.m. on the applicable date noted in Section 4.3 that it has satisfied or waived the mutual conditions contained in Section 4.3, then the City and Brenhill will be deemed to have terminated this Contract and it will have no further force or effect, and the parties hereto will have no further obligations to, nor rights against, the other in respect of this Contract, except for any obligations of the parties which are expressly stated to survive the termination of this Contract. SECTION 5 AGREEMENTS 5.1 Transfers of Title On the Closing Date, Brenhill will transfer good, safeholding, and marketable title to the Brenhill Exchange Land to the City free from all liens, charges and encumbrances except for the Brenhill Exchange Land Permitted Charges, and the City will transfer good, safeholding, and marketable title to the City Exchange Land to Brenhill free from all liens, charges and encumbrances except for the City Exchange Land Permitted Charges, all according to the requirements of this Contract. 5.2 Property Condition Disclosure Statement The City will have no obligation to deliver to Brenhill any disclosure statements regarding the condition of the City Exchange Land or a site profile pursuant to the Environment Management Act of British Columbia. Except as may be otherwise specifically set out in this Contract, Brenhill will have no obligation to deliver to the City any disclosure statements regarding the condition of the Brenhill Exchange Land or a site profile pursuant to the Environment Management Act of British Columbia. 5.3 Plans and Statutory Right of Way Plan The City, at Brenhill s cost, will arrange for the preparation and registration of the Plans and the Statutory Right of Way Plan in compliance with the requirements of this Contract.

13 Lane Subject to City Council approval, the City covenants and agrees that, notwithstanding that only the City Lane will be transferred to Brenhill as part of the City Exchange Land pursuant to the terms of this Contract the Lane will be stopped up and closed in its entirety, and the City further agrees that Brenhill may use and have access to the Lane in undertaking its construction and development of the New Affordable Housing Project, subject to any reasonable requirements of the City with respect to such use and access. 5.5 Removal of Existing Utilities As soon as reasonably possible after the Closing Date, if required by the City, Brenhill will decommission the City Lane including the relocation and/or abandonment of all utilities that may be required as a result of the closure of the City Lane, including overhead B.C Hydro and Telus infrastructure, street lighting, underground gas mains, water mains, sewer pump stations, storm catch basin and sewer mains, all to the satisfaction of the General Manager of Engineering Services. 5.6 Encumbrances Brenhill will conduct a complete review of all charges registered against title to the City Property in favour of the City and will prepare any extensions, modifications and/or releases required as a result of this transaction and will submit each document to the City s Legal Director for review at least thirty (30) days prior to the Closing Date. 5.7 Brenhill s Investigation Brenhill agrees that it is responsible for satisfying itself as to the condition and fitness for its intended use of the City Exchange Land in all respects, including testing the City Exchange Land to its satisfaction. Brenhill agrees that upon completion of the transactions contemplated in this Contract, it will be conclusively deemed to be satisfied with the condition of the City Exchange Land and to have accepted the City Exchange Land as an as is basis, and to have relied entirely on its own judgement, inspection and tests in connection with the City Exchange Land. 5.8 Investigation Brenhill, and its employees, agents, and contractors, may enter the City Exchange Land at any time, upon forty-eight (48) hours prior written notice to 127 Society, before the Closing Date to carry out, at its cost, such inspections, investigations, tests, and surveys as it considers necessary or desirable, provided Brenhill first contacts the City to arrange a time for said investigations and tests which is mutually agreed upon between the parties. Brenhill will restore the surface of the City Exchange Land and repair any damage it causes in doing so. The City agrees to fully cooperate with Brenhill in respect its due diligence inspections, investigations, tests and surveys of the City Exchange Land, on and subject to the terms of this Contract.

14 Rezoning Notwithstanding that Brenhill will not become the owner of the City Exchange Land until the completion of the closing on the Closing Date, the City hereby grants Brenhill with authority to proceed with a rezoning application in respect of the City Exchange Land. Brenhill acknowledges and agrees that it will be responsible, at its sole cost and expense and at its sole risk, for the preparation and submission of the rezoning application relating to the City Exchange Land, and for all costs and expenses relating to the potential rezoning of the City Exchange Land. The City agrees to fully cooperate with Brenhill in respect of such rezoning application, and agrees to execute any documentation required for such rezoning or any related applications in its capacity as owner of the City Exchange Land. For greater certainty, Brenhill acknowledges that nothing contained in this Contract will fetter City Council s discretion in considering the rezoning application Brenhill Financing In its capacity as owner of the City Exchange Land, the City agrees that it will act reasonably and cooperate with Brenhill and any lender providing financing to Brenhill in respect of the transactions contemplated in this Contract, including the construction of the New Affordable Housing Project, provided that any such cooperation or actions by the City shall not require or cause the City to incur any liability or costs. In particular, the City will agree with the lender to: allow the lender or a receiver-manager of Brenhill to complete the construction of the New Affordable Housing Project on the condition that such construction complies with the approved design and specifications for the New Affordable Housing Project as set out in the Development Agreement; and transfer the City Exchange Land to the lender or receiver-manager or to whom either may direct the City, in writing, at such time as the Transfers are to be made under this Contract, provided that such lender, receiver-manager or other party releases the City from any claims with respect to such transfer and with respect to the City Exchange Land. For greater certainty, Brenhill acknowledges that nothing contained in this Contract will fetter City Council s discretion with respect to the transactions contemplated in this Contract, including the construction of the New Affordable Housing Project Condition of City Exchange Land and Brenhill Lands and Environmental Responsibility Brenhill will: assume all responsibility for the City Exchange Land, including without limitation, the environmental conditions and state thereof; accept the City Exchange Land from the City as is, where is ;

15 not rely on any environmental reports or investigations from or supplied by the City, and will conduct its own investigations and satisfy itself, at its cost, regarding the matters set out in Sections to ; assume full responsibility, at its sole cost and expense, for the matters set out in Sections to and for any remediation of the City Exchange Land and the Brenhill Exchange Land required under any Environmental Laws, and including without limitation, with respect to the cost of the demolition of the building currently situate on the City Exchange Land including, without limitation, the removal of any asbestos including any HAZMAT removal; provide the City with the opportunity to review and approve any requirements regarding environmental investigation and clean up (and all related reports) with respect to the City Exchange Land and the Brenhill Exchange Land; and obtain, at its sole cost and expense, any environmental certificates (in the form and to the standards set forth in this Contract) and approvals required by any Person having jurisdiction in respect of the City Exchange Land and the Brenhill Exchange Land Release of City Brenhill, for itself and its successors and assigns, from and after the Closing Date, hereby releases and discharges the City, from all liabilities, suits, actions, obligations, judgments, investigations, demands, claims, losses, damages, consequential damages, remediation cost recovery claims, remediation costs, fines, penalties, expenses, and legal costs on a solicitor-client basis (the Claims ), which Brenhill may suffer or incur with respect to: subject to Section 5.15, vacating the residents from the City Exchange Land or any residential tenants of the 127 Society that have not vacated Jubilee House by the Closing Date; the demolition of the building currently situated on the Brenhill Exchange Land; the non-compliance of the City Exchange Land or its Environment with any Environmental Laws; any investigation or claim of such non-compliance by any Person; the presence within the City Exchange Land or its Environment of Contaminants including without limitation the required removal of any asbestos including any HAZMAT removal; or the leaching, escaping, or migrating of Contaminants from the City Exchange Land or its Environment to other lands or its Environment,

16 whether or not any such event, happening, or condition arose or arises before or after the Effective Date or Closing Date, and whether or not caused in whole or in part or directly or indirectly by the City or its officers, employees, agents, or contractors and Brenhill agrees that it will not, whether alone, in connection with or at the instruction of any other person, commence, pursue or advance or cause to be commenced, pursued or advanced any dispute, claim or process, whether judiciary or otherwise against the City arising from or in connection with the environmental conditions of the City Exchange Land or the existence of any Contaminants therewith Risk The City Exchange Land will be at the risk of the City until the date and time of submission of the Transfer of the City Exchange Land for registration in the LTO, and, after that, will be at the risk of Brenhill. The Brenhill Exchange Land will be at the risk of Brenhill until the date and time of submission of the Transfer for the Brenhill Exchange Land for registration in the LTO and, after that, will be at the risk of the City Demolition of the Building on the Brenhill Exchange Land Brenhill will not demolish the building currently situate on the Brenhill Exchange Land until such time as Brenhill has confirmed that the conditions set out in Sections 4.1.2(a), 4.1.4(a), and 4.3.1(a) have been satisfied or waived and Brenhill has confirmed that any other conditions that it determines need to be met prior to commencing said demolition have been satisfied or waived. In any event, the City is not responsible for any liability for any of Brenhill s costs or expenses (including any legal expenses) incurred by Brenhill with respect to Brenhill demolishing such building Demolition of Jubilee House on the City Exchange Land and Tenants Brenhill acknowledges that there are tenants currently residing in the building situate on the City Exchange Land (the Jubilee House ) and the City makes no representations that said tenants will have vacated the Jubilee House prior to the Closing Date. The City will have no legal or financial responsibility whatsoever with respect to vacating the tenants from Jubilee House prior to the Closing Date, provided that the City will use reasonable commercial efforts and will cooperate with Brenhill and 127 Society in an effort to ensure that all such residents will move into the New Affordable Housing Project forthwith following completion of the construction thereof and the receipt of all necessary occupancy permits. Upon the City s receipt of the One Million Dollars ($1,000,000.00) payment from Brenhill pursuant to Section , the City will reimburse Brenhill for Brenhill s costs (including any such costs which are in the form of reimbursements provided by Brenhill to 127 Society) incurred in respect of the moving expenses relating to the tenants of the Jubilee House moving from Jubilee House to the New Affordable Housing Project to a maximum amount of Seventy-Five Thousand Dollars ($75,000), unless any increased amount has received the City s prior written approval. For greater certainty, such reimbursement of moving expenses by the City will not include any compensation paid to the tenants under the Residential Tenancy Act (such as rent or double rent) or with respect to any additional concessions or compensation granted by Brenhill. The parties agree that the details relating to the payment and reimbursement relating to any moving expenses of the tenants of the Jubilee House will be further set out in the Development Agreement. Brenhill will not demolish Jubilee House

17 until such time as all of the residents of Jubilee House have vacated their premises and Brenhill has received all required permits and approvals for such demolition Possession Subject to Section 5.15, on the Closing Date Brenhill will have the right to possession of the City Exchange Land, subject to City Exchange Land Permitted Charges and the City will have the right to possession of the Brenhill Exchange Land subject to the Brenhill Exchange Land Permitted Charges, the New Affordable Housing Project and, if applicable, the 127 Society Lease Utilities and Services If, before or after the Closing Date, the City learns of the existence of any pipes, wires, or other utilities or services below, on, or above the surface of the City Exchange Land that are then in use or that the City or any other public authority or utility wishes to use, Brenhill, promptly on request by the City, will execute and deliver to the City, in form acceptable for registration in the LTO, a statutory right of way satisfactory to the City and Brenhill, each acting reasonably, and such instruments of priority for that statutory right of way over other registered charges as the City may require Adjustments The parties will adjust all items customarily the subject of adjustment in the sale and purchase of similar property at the Closing Date Costs, Fees and Taxes The City and Brenhill are responsible for costs, fees and taxes as follows: The City will pay the costs of clearing title to the City Exchange Land, except for City Exchange Land Permitted Charges and all LTO transfer fees and the LTO application and registration fees related thereto Brenhill will pay the costs of clearing title to the Brenhill Exchange Land, except for the Brenhill Exchange Land Permitted Charges and the property transfer tax costs in connection with the transfer of the City Exchange Land to Brenhill. Brenhill will provide the City, prior to the Closing Date, with a certificate satisfactory to the City s Legal Director, acting reasonably, and sufficient to relieve the City from any obligation to collect and remit any GST with respect to the transfer of the City Exchange Land to Brenhill. If Brenhill is not a GST registrant, Brenhill will pay GST applicable to the transfer of the City Exchange Land to the City, as and when the City requires. The City will be responsible, at Brenhill s sole cost, for preparation of any required Plans and the Statutory Right of Way Plan As the City is a GST registrant under GST Registration number R , the City will remit directly to the Receiver General of Canada any GST payable by the City with respect to the transfer of the Brenhill Exchange Land to the City and will provide Brenhill with a GST Certificate on the Closing of the transaction, if required.

18 Structure of Transaction The parties agree to use their reasonable commercial efforts to structure the transaction contemplated herein to provide for any costs savings to the City related to construction costs tax input credits Indemnity Brenhill, from and after the Effective Date, will indemnify the City and save it harmless from all liabilities, suits, actions, obligations, statutory or other proceedings, judgements, investigations, demands, claims, losses, damages, consequential damages, remediation cost recovery claims, remediation costs, fines, penalties, expenses, and legal costs on a solicitor-client basis, which the City may suffer or incur, arising out of or in connection with the demolition of the building currently situate on the Brenhill Exchange Land, any inaccuracy or untruth of any representation of Brenhill in this Contract, any breach by Brenhill of any agreement of Brenhill in this Contract, and, subject to Section 5.15, any residential tenants of the 127 Society vacating Jubilee House or any residential tenants of the 127 Society that have not vacated Jubilee House by the Closing Date Brenhill, from and after the Effective Date, will indemnify the City and save it harmless from all liabilities, suits, actions, obligations, statutory or other proceedings, judgements, investigations, demands, claims, losses, damages, consequential damages, remediation cost recovery claims, remediation costs, fines, penalties, expenses, and legal costs on a solicitor-client basis, which the City may suffer or incur, arising out of or in connection with non-compliance of the Brenhill Exchange Land or its surrounding Environment (on or prior to the Closing Date) with any Environmental Laws, or any investigation or claim of non-compliance by any Person; and the presence within the Brenhill Exchange Land or its surrounding Environment (on or prior to the Closing Date) of Contaminants, or the leaching, escaping, or migrating of Contaminants from the Brenhill Exchange Land or its surrounding Environment to other lands or their surrounding Environment; whether or not any such event, happening, or condition arose or arises before or after the Effective Date. For greater certainty, the City acknowledges that the foregoing indemnity does not apply to any liabilities, suits, actions, obligations, proceedings, judgements, investigations, demands, claims, losses, damages, costs, fines, penalties, or expenses of any kind arising from any non-compliance of the Brenhill Exchange Land or its surrounding Environment with any Environmental Laws, or any investigation or claim of non-compliance by any Person, or the presence within the Brenhill Exchange Land or its surrounding Environment of Contaminants, or the leaching, escaping, or migrating of Contaminants from the Brenhill Exchange Land or its surrounding Environment to other lands or their surrounding Environment, to the extent that any of the foregoing arise after the Closing Date and are not caused in whole in part or directly or indirectly by Brenhill or its officers, employees, agents, or contactors Brenhill, from and after the Closing Date, will indemnify the City and save it harmless from all liabilities, suits, actions, obligations, statutory or other proceedings, judgements, investigations, demands, claims, losses, damages, consequential damages, remediation cost recovery claims, remediation costs, fines, penalties, expenses, and legal costs on a solicitor-client basis, which the City may suffer or incur, arising out of or in connection with non-compliance of the City Exchange Land or its surrounding Environment with

19 any Environmental Laws, or any investigation or claim of non-compliance by any Person; or the presence within the City Exchange Land or its surrounding Environment of Contaminants (including without limitation, the removal of any asbestos including any HAZMAT removal), or the leaching, escaping, or migrating of Contaminants from the City Exchange Land or its surrounding Environment to other lands or their surrounding Environment; whether or not any such event, happening, or condition, arose or arises before or after the Effective Date or Closing Date, and whether or not caused in whole in part or directly or indirectly by the City or its officers, employees, agents, or contactors Brenhill Development on the City Exchange Land The City acknowledges that Brenhill intends to develop and construct a new development project on the City Exchange Land following the Closing Date. The City agrees that, following the completion of the transfer of the City Exchange Land from the City to Brenhill on the Closing Date, and subject to the City s customary development permit process for similar developments in the City, Brenhill will be permitted to proceed with its development project on the City Exchange Land in an unfettered manner and without any interference from the City, provided that Brenhill is otherwise in compliance with the City s regulatory requirements. SECTION 6 CLOSING 6.1 Documents Before the Closing Date: Brenhill will cause the Representative to prepare, in form acceptable for registration where applicable, the Transfers, Statement of Adjustments, the modification or extension of any charges and such further documents as Brenhill or the Representative may reasonably require to carry out the transactions contemplated in this Contract, and deliver the applicable documents to the City s Director of Legal Services and other conveyance documents required pursuant to this Contract, along with any other documents, company resolutions or evidence the City requires from Brenhill to complete the transactions contemplated under this Contract; the City will execute the Transfer of the City Exchange Land, the applicable Statement of Adjustments and such further documents as Brenhill or the Representative may reasonably require to carry out the transactions contemplated in this Contract and delivered to the City s Director of Legal Services pursuant to Section 6.1.1, and will cause the City s Legal Director to return same to the Representative along with a certified resolution of City Council approving the stopping up and closing of the City Lane; and Brenhill will sign the documents required pursuant to this Contract in the manner prescribed by the LTO along with any other evidence the City requires from Brenhill pursuant to this Contract and cause the Representative to give the City s Legal Director such undertakings as the City s Legal Director may require regarding submission for registration of the documents.