HOUSING AGREEMENT AND SECTION 219 COVENANT (Schedule A to Bylaw 977)

HOUSING AGREEMENT AND SECTION 219 COVENANT

THIS AGREEMENT dated for reference August 3, 2017 is

BETWEEN:

CHRISTIE POINT APARTMENTS LIMITED (Inc. No. BC0678492), Suite 2000 – 77 Bloor Street West, Toronto, ON M5S 2B4

(the “Owner” as more fully defined in section 1.1 of this Agreement)

AND:

TOWN OF VIEW ROYAL, 45 View Royal Avenue, Victoria, British Columbia, V9B 1A6

(the “Town”)

WHEREAS:

A. Section 483 of the Local Government Act permits the Town to enter into and note on title to lands, housing agreements which may include, without limitation, conditions in respect to the form of tenure of housing units, availability of housing units to classes of persons, administration of housing units, and rent that may be charged for housing units;

B. Section 219 of the Land Title Act permits the registration of a covenant of a positive or a negative nature in favour of the Town in respect of the use of land and construction on land;

C. The Owner is the registered owner of the Lands (as hereinafter defined);

D. The Owner and the Town wish to enter into this Agreement (as hereinafter defined) to ensure the Lands are used exclusively for long-term rental housing on the terms and conditions set out in this Agreement; and

E. There are several buildings on the Lands and the Town acknowledges that the Owner proposes to demolish those buildings, in accordance with a development agreement to be entered into between the Town and the Owner.

In consideration of $10.00 and other good and valuable consideration (the receipt and sufficiency of which is acknowledged by both parties), and in consideration of the promises exchanged below, the Owner and the Town covenant and agree pursuant to section 483 of the Local Government Act and section 219 of the Land Title Act as follows:

ARTICLE 1 DEFINITIONS AND INTERPRETATION

1.1 Definitions – In this Agreement, the following words have the following meanings:

(a) “Agreement” means this agreement together with all Land Title Office forms, schedules, appendices, attachments and priority agreements attached hereto;

(b) “CPI” means the All-Items Consumer Price Index for Vancouver, B.C. published from time to time by Statistics Canada, or its successor in function;

(c) “Daily Amount” means $100.00 per day as of January 1, 2017 adjusted annually thereafter by adding thereto an amount calculated by multiplying $100.00 by the percentage change in the CPI since January 1, 2017, to January 1 of the year that a written notice is delivered to the Owner by the Town pursuant to section 4.1 of this Agreement. In the absence of obvious error or mistake, any calculation by the Town of the Daily Amount in any particular year shall be final and conclusive;

(d) “Dwelling Unit” has the meaning set out in the Zoning Bylaw;

(e) “Existing Building” means any existing 2-storey rental apartment building constructed in or around 1963 and located on the Lands as of the reference date of this Agreement;

(f) “Existing Tenant” means the person or persons occupying a Dwelling Unit in an Existing Building under a Tenancy Agreement as of the date of the delivery of the 12 Month Notice referred to in section 2.1 below;

(g) “Interpretation Act” means the Interpretation Act, R.S.B.C. 1996, Chapter 238, together with all amendments thereto and replacements thereof;

(h) “Lands” means those lands and premises situate in View Royal, British Columbia, legally described as Parcel Identifier: 000-869-597, Part of Section 2, Esquimalt District, Lying to the North of Plan 40 RW to the East of the Right of Way of the Esquimalt and Nanaimo Railway Company and to the West of Plan 10960, Except parts in Plans 11627, 11919 and 41826;

(i) “Land Title Act” means the Land Title Act, R.S.B.C. 1996, Chapter 250, together with all amendments thereto and replacements thereof;

(j) “Local Government Act” means the Local Government Act, R.S.B.C. 2015, Chapter 1, together with all amendments thereto and replacements thereof;

(k) “LTO” means the Victoria Land Title Office or its successor;

(l) “New Building” means any new residential building constructed on the Lands by the Owner after the reference date of this Agreement;

(m) “Owner” means the party described on page 1 of this Agreement as the Owner and any subsequent owner of the Lands;

(n) “Real Estate Development Marketing Act” means the Real Estate Development Marketing Act, S.B.C. 2004, Chapter 41, together with all amendments thereto and replacements thereof;

(o) “Residential Tenancy Act” means the Residential Tenancy Act, S.B.C. 2002, Chapter 78, together with all amendments thereto and replacements thereof;

(p) “Strata Property Act” means the Strata Property Act S.B.C. 1998, Chapter 43, together with all amendments thereto and replacements thereof;

(q) “Subdivide” means to divide, apportion, consolidate or subdivide the Lands or any building on the Lands, or the ownership or right to possession or occupation of the Lands or any building on the Lands, into two or more lots, strata lots, parcels, parts, portions or shares, whether by plan, descriptive words or otherwise, under the Land Title Act, the Strata Property Act, or otherwise, and includes the creation, conversion, organization or development of “cooperative interests” or a “shared interest in land” as defined in the Real Estate Development Marketing Act;

(r) “Tenancy Agreement” means a tenancy agreement, lease, licence or other agreement granting rights to occupy a Dwelling Unit;

(s) “Tenant” means one or more occupants of a Dwelling Unit by way of a Tenancy Agreement;

(t) “Tenant Relocation Package” means the document attached as Schedule "A" to this Agreement; and

(u) “Zoning Bylaw” means the Town’s Zoning Bylaw No. 900, 2014, as amended or replaced from time to time.

1.2 Interpretation – In this Agreement:

(a) reference to the singular includes a reference to the plural, and vice versa, unless the context requires otherwise;

(b) article and section headings have been inserted for ease of reference only and are not to be used in interpreting this Agreement;

(c) if a word or expression is defined in this Agreement, other parts of speech and grammatical forms of the same word or expression have corresponding meanings;

(d) reference to any enactment includes any regulations, orders or directives made under the authority of that enactment;

(e) reference to any enactment is a reference to that enactment as consolidated, revised, amended, re-enacted or replaced, unless otherwise expressly provided;

(f) the provisions of section 25 of the Interpretation Act with respect to the calculation of time apply;

(g) time is of the essence;

(h) reference to a “party” is a reference to a party to this Agreement and to that party’s respective successors, assigns, trustees, administrators and receivers. Wherever the context so requires, reference to a “party” also includes a Tenant, agent, officer and invitee of the party;

(i) reference to a “day”, “month”, or “year” is a reference to a calendar day, calendar month, calendar or calendar year, as the case may be, unless otherwise expressly provided; and

(j) where the word “including” is followed by a list, the contents of the list are not intended to circumscribe the generality of the expression preceding the word “including”.

ARTICLE 2 SECTION 219 COVENANTS RE DEMOLITION OF EXISTING BUILDINGS AND NO SUBDIVISION

2.1 Demolition of Existing Buildings – Pursuant to section 219 of the Land Title Act, the Owner covenants and agrees that the Owner will not demolish any Existing Building on the Lands and the Town will not be required to issue a permit for the demolition of any Existing Building on the Lands until and unless the Owner has delivered to each of the Existing Tenants at their Dwelling Unit in the subject Existing Building to be demolished at least 12 months’ written notice of the estimated date of demolition (the "12 Month Notice"), which period will include the 2 months’ notice period required under Section 49(2) of the Residential Tenancy Act (the "RTA Notice").

2.2 Relocation Package – The RTA Notice shall include the Tenant Relocation Package. The Town acknowledges and agrees that the Tenant Relocation Package is made available on a Dwelling Unit basis and that multiple occupants in a Dwelling Unit or multiple parties listed as tenant under the Tenancy Agreement shall not be entitled to separate benefits under the Tenant Relocation Package.

2.3 No Subdivision – The Owner shall not subdivide the Lands by any method, including by way of a building strata plan under the provisions of the Strata Property Act, or any successor legislation dealing with the creation of separate titles to portions of a building.

ARTICLE 3 USE AND OCCUPANCY OF LANDS AND DWELLING UNITS

3.1 Use of Lands and Dwelling Units – The Owner agrees the Lands and every Dwelling Unit on the Lands may only be used for the purpose of rental housing. The Owner agrees that each Dwelling Unit on the Lands may only be used as a residence occupied by a Tenant. A Dwelling Unit must not be occupied by the Owner, the Owner’s family members (unless the Owner’s family members are Tenants under a Tenancy Agreement).

3.2 Town Authorized to Request Documents – Upon reasonable requests by the Town, the Owner shall furnish the Town with such documentation as may be reasonably required to confirm that the Owner is complying with this Agreement.

3.3 Occupancy of Dwelling Units – The Owner must not rent, lease, license or otherwise permit occupancy of any Dwelling Unit except in accordance with the following additional conditions:

(a) the Dwelling Unit will be used or occupied only pursuant to a Tenancy Agreement; and

(b) the Owner will not require the Tenant or any permitted occupant to pay any extra charges or fees for sanitary sewer, storm sewer, water, or property or similar tax (unless these charges or fees are separately metered for the Dwelling Unit).

ARTICLE 4 DEFAULT AND REMEDIES

4.1 Notice of Default – The Town may give to the Owner written notice to cure a default under this Agreement within sixty (60) days of receipt of notice. The Owner must act with diligence to correct the default within the time specified, or in the case of a default which cannot with due diligence be cured within such sixty (60) day period, such longer period as may be reasonably necessary to cure such default if the Owner commences to cure such default within such sixty (60) day period and thereafter diligently proceeds to cure such default.

4.2 Payment of Daily Amount – The Owner agrees that, in addition to any other remedies available to the Town under this Agreement or at law or in equity, if one or more Dwelling Units are used or occupied in breach of this Agreement or the Owner is otherwise in breach of any of its obligations under this Agreement, and the Owner has not corrected such default within the sixty (60) day period specified by the notice delivered pursuant to section 4.1 of this Agreement, or in the case of a default which cannot with due diligence be cured within such sixty (60) day period, within such longer period as may be reasonably necessary to cure such default, the Owner will pay the Daily Amount to the Town for every day that the breach continues after the notice period. The Daily Amount is due and payable five (5) business days following receipt by the Owner of an invoice from the Town for the same.

4.3 Rent Charge – The Owner hereby grants to the Town a perpetual rent charge against the Lands securing payment by the Owner to the Town of any amount payable by the Owner pursuant to section 4.2 of this Agreement. The Owner agrees that the Town, at its option, may enforce payment of such outstanding amount in a court of competent jurisdiction as a contract debt, by an action for and order for sale, by proceedings for the appointment of a receiver, or in any other method available to the Town at law or in equity. This rent charge is created both under section 219(6)(b) of the Land Title Act as an integral part of the statutory covenant created by this Agreement and as a fee simple rent charge at common law. Enforcement of this rent charge by the Town does not limit, or prevent the Town from enforcing, any other remedy or right the Town may have against the Owner.

ARTICLE 5 MISCELLANEOUS

5.1 Housing Agreement – The Owner acknowledges and agrees that:

(a) this Agreement includes a housing agreement entered into under section 483 of the Local Government Act and a covenant under section 219 of the Land Title Act; and

(b) the Town may file notice of, and register, this Agreement in the LTO pursuant to section 483(5) of the Local Government Act against the title to the Lands.

5.2 Modification – This Agreement may be modified or amended from time to time, by consent of the Owner and a bylaw duly passed by the Council of the Town and thereafter if it is signed by the Town and the Owner.

5.3 Management – The Owner covenants and agrees that it will maintain the Dwelling Units in a good state of repair and in compliance with all applicable laws.

5.4 Indemnity – The Owner agrees to indemnify and save harmless the Town and its elected officials, officers, employees and agents from and against all loss, damage, cost, actions, suits, debts, expenses and harm of any kind whatsoever which the Town may at any time suffer or incur arising out of this Agreement or any breach of it, provided, however, that this indemnity shall not apply to any loss, damage, cost, actions, suits, debts, expenses including actual legal fees or harm caused by the negligent actions or omissions of the Town, its elected officials, officers, employees, agents, and other for whom it is responsible in law.

5.5 Release – The Owner agrees to waive and release any claims or demands which it may at any time have against the Town and each of its elected officials, officers, directors, and agents, for any loss or damage which the Owner may suffer because of the existence of, or the Owner’s failure to comply with, this Agreement, provided, however, that this waiver and release shall not apply to any loss or damage caused by the negligent actions or omissions of the Town, its elected officials, officers, employees, agents and others for whom it is responsible at law

5.6 Survival – The indemnity and release set out in this Agreement will survive termination or discharge of this Agreement.

5.7 Registration – The Owner agrees at the Owner's expense, to ensure that this Agreement is registered against title to the Lands with priority over all financial charges, liens and encumbrances that are registered, or the registration of which is pending at the time of application for registration of this Agreement, except those in favour of the Town.

5.8 Priority – The Owner agrees at the Owner’s expense, to ensure that this Agreement will be noted and registered against title to the Lands in priority to all financial charges and financial encumbrances which may have been registered or are pending registration against title to the Lands save and except those specifically approved in advance in writing by the Town or in favour of the Town, and that a notice under section 483(5) of the Local Government Act will be filed on the title to the Lands.

5.9 Town’s Powers Unaffected – This Agreement does not:

(a) affect or limit the discretion, rights, duties or powers of the Town under any enactment or at common law, including in relation to the use or subdivision of the Lands;

(b) impose on the Town any legal duty or obligation, including any duty of care or contractual or other legal duty or obligation, to enforce this Agreement

(c) affect or limit any enactment relating to the use or subdivision of the Lands; or

(d) relieve the Owner from complying with any enactment, including in relation to the use or subdivision of the Lands.

5.10 Agreement for Benefit of Town Only – The Owner and the Town agree that:

(a) this Agreement is entered into only for the benefit of the Town;

(b) this Agreement is not intended to protect the interests of the Owner, any Tenant, or any future owner, lessee, occupier or user of the Lands or the building or any portion thereof, including any Dwelling Unit; and

(c) the Town may at any time execute a release and discharge of this Agreement, without liability to anyone for doing so.

5.11 No Public Law Duty – Where the Town is required or permitted by this Agreement to form an opinion, exercise a discretion, express satisfaction, make a determination or give its consent, the Owner agrees that the Town is under no public law duty of fairness or natural justice in that regard and agrees that the Town may do any of those things in the same manner as if it were a private party and not a public body.

5.12 Dispute Resolution – If a dispute arises between the parties in connection with this Agreement, the parties agree to use the following procedure as a condition precedent to any party pursuing other available remedies:

(a) either party may notify the other by written notice (“Notice of Dispute”) of the existence of a dispute and a desire to resolve the dispute by mediation;

(b) a meeting will be held promptly between the parties, attended by individuals with decision-making authority regarding the dispute, to attempt in good faith to negotiate a resolution of the dispute;

(c) if, within forty-eight (48) hours after such meeting or such further period as is agreeable to the parties (the “Negotiation Period”), the parties have not succeeded in negotiating a resolution of the dispute, they agree to submit the dispute to mediation and to bear equally the costs of mediation;

(d) the parties will jointly appoint a mutually acceptable mediator (who must be an expert in the subject matter of the dispute), within seven days of the conclusion of the Negotiation Period;

(e) the parties agree to participate in good faith in the mediation and negotiations related thereto for a period of thirty (30) days following appointment of the mediator or for such longer period as the parties may agree, and in the event that the mediation is not concluded within thirty days, then either party may bring and initiate a legal proceeding to resolve the claim, controversy or dispute unless the time period is extended by a written agreement of the parties and

(f) the costs of mediation will be awarded by the mediator in his or her absolute discretion.

In no event shall the foregoing be construed as impeding or affecting the City’s authority to enforce its zoning and other regulatory bylaws.

5.13 Notice – Any notice required to be served or given to a party herein pursuant to this Agreement will be sufficiently served or given if delivered, to the postal address of the Owner set out in the records at the LTO, and in the case of the Town addressed to:

Town of View Royal 45 View Royal Avenue Victoria, BC, V9B 1A6 Attention: Clerk

or to the most recent postal address provided in a written notice given by each of the parties to the other. Any notice which is delivered is to be considered to have been given on the first day after it is delivered to that address.

5.14 Enuring Effect – This Agreement will extend to and be binding upon and enure to the benefit of the parties hereto and their respective successors and permitted assigns.

5.15 Severability – If any provision of this Agreement is found to be invalid or unenforceable, such provision or any part thereof will be severed from this Agreement and the resultant remainder of this Agreement will remain in full force and effect.

5.16 Waiver – All remedies of the Town will be cumulative and may be exercised by the Town in any order or concurrently in case of any breach and each remedy may be exercised any number of times with respect to each breach. Waiver of or delay in the Town exercising any or all remedies will not prevent the later exercise of any remedy for the same breach or any similar or different breach.

5.17 Whole Agreement – This Agreement, and any documents signed by the Owner contemplated by this Agreement, represent the whole agreement between the Town and the Owner respecting the use and occupation of the Dwelling Units, and there are no warranties, representations, conditions or collateral agreements made by the Town except as set forth in or contemplated by this Agreement.

5.18 Further Assurance – Upon request by the Town the Owner will forthwith do such acts and execute such documents as may be reasonably necessary in the opinion of the Town to give effect to this Agreement.

5.19 Agreement Runs with Lands – This Agreement burdens and runs with the Lands and every parcel into which it is Subdivided in perpetuity. All of the covenants and agreements contained in this Agreement are made by the Owner for itself, its personal administrators, successors and assigns, and all persons who after the date of this Agreement acquire an interest in the Lands. The Owner shall only be liable for breaches of this Agreement which occur while the Owner is the registered owner of the Lands.

5.20 Equitable Remedies – The Owner acknowledges and agrees that damages would be an inadequate remedy for the Town for any breach of this Agreement and that the public interest strongly favours specific performance, injunctive relief (mandatory or otherwise), or other equitable relief, as the only adequate remedy for a default under this Agreement.

5.21 No Joint Venture – Nothing in this Agreement will constitute the Owner as the agent, joint venturer, or partner of the Town or give the Owner any authority to bind the Town in any way.

5.22 Applicable Law – The laws of British Columbia (including, without limitation, the Residential Tenancy Act) will apply to this Agreement and all statutes referred to herein are enactments of the Province of British Columbia.

5.23 Deed and Contract – By executing and delivering this Agreement the Owner intends to create both a contract and a deed executed and delivered under seal.

5.24 Joint and Several – If the Owner is comprised of more than one person, firm or body corporate, then the covenants, agreements and obligations of the Owner shall be joint and several.

5.25 Limitation on Owner’s Obligations – The Owner is only liable for breaches of this Agreement that occur while the Owner is the registered owner of the Lands provided however that notwithstanding that the Owner is no longer the registered owner of the Lands, the Owner will remain liable for breaches of this Agreement that occurred while the Owner was the registered owner of the Lands.

IN WITNESS WHEREOF the parties hereto have executed this Agreement on the Land Title Act Form C which is attached to and forms part of this Agreement.