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2024-040 By-law to Authorize the Execution of a Co-Ownership and Development Agreement between the Simcoe County District School Board and The Township of Oro-Medonte° .¢ 0 3 �� o E. 0 0 0 U _ s N N e o N o°o 0 �" to c. C e 0 0 o CES . U N G j O U N 'd 'o N L N� °G° 7 o ti- o s co o Q°o —o NV0. ( -°% O a} t a> � 0- dA � '� prcoa mC , m� =o°' .� -av O ar '.0 'Es 0 <=s OG• T0o °¢ csN°"a v.) o •a) o t- ° 3 o 12. "N a Ts v oO 3o°a' Oo O=0 O'sU�°�o ' co °o O �eo op0 0- ►- a oo o. 0 p .o 57 G -0 c0 Q� ° a in 3s 0 0 3 o. c.0° a ¢CO °:0_om °° ca) °z rIO o a - o 3o_ cn ��cn o ,tit ¢°o �0 �, 4. o �:nJ. uaJ r Z d 74,11 ' ° o .c. c o o 0 l 0. oo CO 4 . C � 4} 1- 3U T ° .r ° o ++ ;, - a> 0 o o cn y ° ° ',?)'0) °; Ica ° r o N cn � 0 • 3 �- C > 0 yc ,d t? r cn N �- �s @ ° s`a v o ca o 3 m o 7- C Cfl d d 0- o �:o a� {v o sy o 0 0 0 0 - "a 0- s ur o° N°no °°'� 0��° r �o�^ d c \ o �,, o_a oo'� o•;�U¢ d o00�m y v r o .� o 0 0 - o is 0 m % o o. 0 r 0 ix o. C 0 o a o .. N�' 0 0•v d 0 o V- *' rc Y v y r `- NS o... 0 oo cn c. 0 r� �N c c. oo a 0 to a> — -o a) o O o r rz o U ° o„ e- s F,° 3 c° `"� 3 N ct CO s1 43 'L3 OQ ° Lfl i 0 -o = ° ° 4.C. uy c0 et �' o Q 0- � Schedule«L—to BY-Law No. a '4-4 CO-OWNERSHIP AND DEVELOPMENT AGREEMENT THIS AGREEMENT made as of the loth day of April, 2024 BETWEEN: SIMCOE COUNTY DISTRICT SCHOOL BOARD (hereinafter referred to as the "School Board") AND "THE CORPORATION OF THE TOWNSHIP OF ORO-MEDONTE (hereinafter referred to as the "Township") WHEREAS the Township is the registered owner of the lands more particularly described in Schedule A attached hereto (the "Lands"); AND WHEREAS the School Board and the Township (collectively the "Co-Developers" and individually the "Co-Developer") have agreed to co-operate for the purpose of developing the Project (as defined herein) on the Lands, with the School Board acquiring an ownership interest in the Lands, all in accordance with the terms of this Agreement; AND WHEREAS the Co-Developers are entering into this Agreement for the purpose of setting out the terms and conditions respecting the ownership of the Lands and the development of the Project; AND WHEREAS the School Board and the Township have agreed to retain Salter Pilon Architecture as their architect and consultant for the purpose of designing and completing the Project having an estimated total development cost of approximately $26,247,000.00, excluding the value of the Lands, as more particularly set out in the Development Budget attached as Schedule C, as amended; AND WHEREAS the Architect will work with the School Board and the Township to help select and retain a general contractor to carry out the construction of the Project pursuant to the Construction Contract (as defined herein) in accordance with the requirements of the Project; NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the mutual covenants hereinafter expressed and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,the parties hereby covenant and agree as follows: PART 1 DEFINITIONS AND INTERPRETATION 1.1 Definitions In this Agreement unless the context otherwise requires, the following terms will have the following meanings: (a) "Accounting Year" in respect of the Project will be the calendar year; (b) "Agreement" means this Agreement and any Schedules hereto; (c) "Architect" means Salter Pilon Architecture or such other architect or firm of architects as may be appointed by the parties; - 2 - (d) "Business Day" means a day which is not a Saturday, Sunday,the first Monday in August nor defined as a "holiday" under the interpretation Act(Ontario), as amended or replaced from time to time; (e) "Cash Deficiency" has the meaning set out in section 7.2; (f) "Co-Developer" and "Co-Developers" shall have the meanings set out in the Recitals hereof; (g) "Co-Development" means the association between the Co-Developers for the construction and development of the Project in accordance with the terms, conditions and purposes set out in this Agreement; (h) "Co-Development Interest" means the respective interests of the School Board and the Township in the Project as determined in accordance with section 3.1 hereof; (i) "Concept Plan" means the Concept Plan approved for the Project attached as Schedule D; 0) "Conditional Dates" means those dates outlined in Schedule B attached hereto; (k) "Construction Contract" means the contract made among the School Board, the Township and the Contractor for the construction of the Project; (1) "Contractor" means the contractor(s) selected by the School Board and the Township in consultation with the Architect to fulfil the requirements of the Construction Contract; (m) "Contribution Loan" has the meaning set out in section 7.5; (n) "Cost Sharing and Operations Agreement" means the agreement to be entered into between the Township and the School Board regarding the parties' on-going rights and obligations in respect of the Project following the expiry of the term of the Co-Development, substantially in accordance with the provisions set out in section 3.2.2 hereof and such other terms and provisions required by the parties to give effect to this Agreement, acting reasonably; (o) "Defaulting Party" has the meaning set out in section 7.5; (p) "Development Budget" means the apportioned development budget for the Project that has been approved by the School Board and the Township, a draft of which is attached as Schedule C; (q) "Development Costs" means all payments, outlays and expenses made pursuant to the Development Budget by the Co-Developers or a Co-Developer on behalf of the Co-Developers in connection with the Project and the planning, construction and development of the Project, including, without limitation,the following: (i) payments to a contractor or contractors to develop and construct the Project, including progress or partial payments and including all proper payments made under the Construction Contract; (ii) costs of constructing, extending or bringing to the Project utilities, services, roadways and all other services necessary or desirable to the development and construction of the Project; (iii) costs of labour and professional and other services in connection with the development and construction of the Project; (iv) costs of material, supplies, machinery, plant, equipment and apparatus acquired or used (including rental charges for machinery, equipment or apparatus hired) for or in connection with the development and construction of the Project, it being understood that any amount realized and salvaged on, or proceeds of insurance paid in respect of, - S - loss or damage to any items will be treated as a deduction from the amounts which would otherwise be available; (v) rentals, licenses, permits, royalties, duties, excises, assessments, architectural, design, engineering, consulting and accounting expenses, (excluding legal fees for the negotiation of and preparation of this Agreement) municipal or governmental imposts and taxes (other than income, capital and other similar taxes or surtaxes imposed by any competent taxing authority upon a Co-Developer), superintendent's fees, supervision and management fees, fees paid for feasibility, design, planning, marketing studies, casualty, liability, bonds (including without limitation surety, performance, labour and/or material bonds) and other insurance premiums; and (vi) all other outlays and expenses made or incurred in connection with the development and construction of the Project, including building permit fees, development charges, encroachment and servicing fees payable in connection with the construction of the Project, which, in accordance with the generally accepted accounting principles applicable to persons engaged in the development and ownership of real estate property for sale or lease, are properly attributable to the costs of the development and construction of the Project. For greater certainty, Development Costs shall not include the costs of any staff time related to the processing, approval and development of this Project by either the School Board or the Township. (r) "ECA" has the meaning set out in section 4.6. (s) "Event of Default" has the meaning set out in section 8.1; (t) "Funded Amount" means the actual amount of cash or capital (or the equivalent value of property or services as agreed to by the Co-Developers) paid or contributed by such Co- Developer towards the Project from time to time pursuant to this Agreement; (u) "Joint Use Facility" means all shared structures, common areas, and amenities, as illustrated in the Concept Plan. (v) "Lands" has the meaning set out in the Recitals hereof; (w) "Major Decisions" means all decisions referred to in section 5.1; (x) "Non Defaulting Party" has the meaning set out in section 7.5; (y) "Prime Rate" shall mean the annual rate of interest announced from time to time by the Bank of Canada as the reference rate then in effect for determining interest rates on Canadian dollar commercial loans in Canada. (z) "Plans" means the plans, specifications and drawings for the Project as prepared by the Architect and available for inspection at the Architect's offices and includes any amendments or modifications to them; (aa) "Project" means all of (i) the Lands; (ii) the School Board Exclusive Use Facility, the Township Exclusive Use Facility, and the Joint Use Facility to be erected on the Lands; (iii) an appropriate access road for ingress and egress; (iv) the septic treatment plant and system servicing the facility; and (v) any and all agreements (including without limitation, all leases, offers to lease and parking licenses, mortgages, easements and encumbrances in favour of third parties) entered into by any of the Co-Developers in respect thereof, and any reference in this Agreement to the Project means, if the context so requires, the whole or any part or parts of the Project or such portion or portions of the Project to which reference is made; (bb) "School Board Exclusive Use Facility" means all structures, facilities, and amenities occupied or utilized exclusively by the School Board, as illustrated in the Concept Plan; -4 - (cc) "Tender" means the tender for a general contractor to be prepared by the Architect in consultation with the School Board and the Township; (dd) "Township Exclusive Use Facility" means all structures, facilities, and amenities occupied or utilized exclusively by the Township, as illustrated in the Concept Plan. 1.2 Accounting Provisions. For the purposes of this Agreement: (a) all accounting terms not otherwise defined shall be construed in accordance with accounting standards for private enterprises ("ASPE"); and (b) all computations provided for in this Agreement will be made in accordance with ASPE. 1.3 Schedules. The following Schedules form part of this Agreement: Schedule A—Description of Lands; Schedule B—Conditional Dates; Schedule C—Development Budget; Schedule D—Concept Plan, Site Plan Drawings and Floorplans; and Schedule E—Arbitration and Dispute Resolution. PART 2 FORMATION OF CO-DEVELOPMENT ASSOCIATION 2.1 Formation and Purposes The Co-Developers agree to associate themselves as co-developers for the purpose of: (a) retaining the Architect and the Contractor; (b) completing the tendering process; (c) in consultation with the Architect, designing, approving and cooperating in the development of the Project; (d) developing and constructing the Project; (e) completing the transfer of ownership of a tenancy in common interest in the Lands from the Township to the School Board in accordance with section 3.2.1; and (f) execution by both parties and, to the extent required in connection with completion of construction of the Project, completion and performance in full of all other ancillary agreements including the Cost Sharing and Operations Agreement; all in accordance with the terms and conditions of this Agreement. 2.2 Restrictions The purpose and activities of the Co-Development will be confined strictly to the purposes and activities set out in section 2.1 and the Co-Developers will not engage in any other transactions of any kind and nature whatsoever in respect to the Project, except as mutually agreed upon in writing by the Co-Developers. 2.3 Scope of Authority (a) The Co-Developers acknowledge that their relationship is that of co-developers of the Project and not that of partners, nor is it intended that the relationship of partnership be - 5 - created between the Co-Developers in respect of the Project or any activities in connection with it. No Co-Developer will, except as expressly provided for in this Agreement: (i) be considered to be the partner, agent, or representative of the other Co-Developer; (ii) have any authority or power to act for or to undertake an obligation or responsibility on behalf of the other Co-Developer; or (iii) pledge the credit of the other Co-Developer or incur any financial obligations on behalf of the other Co-Developer. (b) While the Project shall not be characterized as a legal partnership, the Co-Developers agree to work collaboratively with respect to the development of the Project and share the goal of providing residents and students with a facility and services in a cost effective manner that maximizes the benefits to the community. 2.4 Mutual Indemnification Each of the Co-Developers covenants and agrees with the other to indemnify and save harmless the other Co-Developer from any and all liability, obligation, claim or loss resulting from any unauthorized acts of such Co-Developer concerning the Project, save to the extent: (i) caused or contributed to by the other Co-Developer's negligence or wilful misconduct, and (ii) recovered or recoverable by the other Co-Developer under its insurance, bonds or other security. 2.5 Term The term of the Co-Development will commence as and from the date of execution of this Agreement and terminate upon the earlier of: (a) unanimous agreement of the Co-Developers to terminate the Co-Development; and (b) completion of the Co-Development in accordance with section 2.1 hereof. 2.5 Conditions This Agreement is conditional upon the following conditions precedent being satisfied in full by the applicable Conditional Dates, which conditions are true conditions precedent and may not be waived by either party: (a) The approval of this Agreement and the terms thereof by the board of directors of the School Board; (b) The approval of this Agreement and the terms thereof by the Ministry of Education; (c) Council's ratification of this Agreement; (d) Completion, acceptance and approval by both the Township and the School Board of the Schedules to be attached to and to form part of this Agreement; (e) Execution by both parties of the Cost Sharing and Operations Agreement, it being understood and agreed that such agreement may be included as a Schedule in any Site Plan Agreement registered on title. (f) Approval of the allocation of the Development Costs pursuant to the Development Budget. 2.7 Procurement The parties agree that all procurement shall be conducted in accordance with the School Board's procurement policies with the exception of any chattels or specific improvements to be acquired at the sole cost and expense of the Township which shall be governed by the Township's procurement by-law/policy. - b - PART 3 CO-DEVELOPMENT INTERESTS 3.1 Interests The Co-Developers agree that (i) their respective Co-Development Interests are equal to the percentages that their respective Funded Amounts represent to the aggregate of the Funded Amounts of each Co-Developer contributed to the Project, from time to time, and (ii) each will pay their respective share of the Development Costs made or incurred in connection with the construction and development of the Project as more particularly set out in Part 8 of this Agreement. 3.2 Title Matters. Subject to the termination and default provisions of this Agreement, the Co-Developers agree that legal and beneficial title to the Lands and to all improvements made thereto pursuant to this Agreement shall be subject to the following: 3.2.1 Title Transfer (a) It is understood and agreed that prior to commencement of construction on the Lands, the School Board shall purchase a tenancy in common interest in the Lands and the title shall be transferred and recorded to the Parties as tenants in common based upon the following: (i) The agreed fair market value of the Lands based upon appraisal is $3,460,000.00. The School Board shall pay to the Township the sum of$1,730,000.00 (the "Purchase Price"). (ii) Upon payment of the Purchase Price by the School Board to the Township, the Township shall convey to the School Board a tenancy in common interest in the Lands by Transfer/Deed of Land registered in the Land Registry Office for the County of Simcoe (the "Title Transfer"). (iii) The Transfer/Deed of Land shall be prepared by the Township in form satisfactory to the School Board and its solicitors, acting reasonably. The School Board shall be responsible for the cost of registration including Land Transfer Tax. 3.2.2 Cost Sharing and Operations Agreement. (a) Concurrent with the Title Transfer as provided in section 3.2.1 above, the Parties shall enter into a Cost Sharing and Operations Agreement on terms satisfactory to the parties and their respective solicitors, acting reasonably. (b) Among other things the Cost Sharing and Operations Agreement shall include: (i) provisions addressing the policies and procedures that apply to the Joint Use Facility. The parties agree that the guiding general principle of the formation of such provisions shall be as follows. During those times that the Joint Use Facility is under the control of the Township, applicable policies of the Township concerning the use of Township owned facitilies shall apply. Likewise, during those times that the Joint Facility is under the control of the School Board, its applicable policies shall apply; (ii) provisions confirming that each party is entitled to and has the sole discretion to establish policies and procedures governing the use of its Exclusive Use Areas. - 7 - 3.2.3 Fourth Line Driveway Easement (a) The appropriate road for ingress and egress will consist of access to Horseshoe Valley Road "right turn in, right turn out." (b) The Township is the owner of the parcel of real property connecting the Lands to the 41h Line of the Township of Oro-Medonte (hereinafter referred to as the "Abutting Lands"). (c) The Township, prior to commencement of construction, shall grant a perpetual, non- exclusive easement for the main driveway access over the Abutting Lands to provide ingress and egress to the Project (the "Fourth Line Driveway Easement"). A Reference Plan of Survey shall be prepared and filed to delineate the location of the driveway access leading to the 41n Line. The costs of such survey work shall be shared equally by the School Board and the Township. (d) The Fourth Line Driveway Easement shall be registered on title to the Lands at the time of the Title Transfer as provided in section 3.2.1 above. (e) For greater clarity, the construction of the road shall be the responsibility of both the Township and the School Board. 3.2.4 First Rights of Refusal (a) In the event that the School Board determines that it no longer has a need for a school at the location of the Project or wishes to withdraw from the Project, although it is acknowledged that the School Board will be obliged to comply with the relevant provisions of the Education Act (Ontario) and its regulations, as amended, with respect to the disposition of an interest in real estate, the School Board shall use all reasonable best efforts in dealing with the Ministry of Education to provide the Township a first opportunity to acquire the Township's tenancy in common interest in the Project at its then fair market value. (b) In the event that the Township has determined that it wishes to withdraw from the Project, it shall provide the School Board with a first opportunity to acquire the Township's tenancy in common interest in the Project at its then fair market value. (c) The parties acknowledge and agree that no third party may take over the Township's position unless the record and objectives and historical activities of such entity are compatible with the educational uses of the Premises and such party has been approved by the School Board to take over the Township's position. (d) The first rights of refusal referred to above shall be open for exercise for a reasonable time, which shall not in any event be less than one hundred and twenty (120) days after service of written notice on the other party hereto. (e) For the purposes of this section 3.2.4, Fair Market Value is defined as the fair and reasonable arm's length value of the interest of the Selling Party in the Project and the Lands as agreed to unanimously by the Parties or failing such agreement, as determined by a certified A.A.C.I. appraiser selected by agreement of the Parties, using generally accepted principals of appraisal. For the purposes of such appraisal, it is directed that in valuing the Lands, such appraiser shall use the Direct Sales Comparison Approach to Value. Any party may exercise an option to obtain a second appraisal at its sole cost and expense by giving notice in writing within 60 days of the receipt of the initial appraisal. If such option is exercised, the Fair Market Value shall be the average of the two appraisals. 3.3 Restrictions No Co-Developer shall during the term of the Co-Development: (a) have the right to partition nor shall any Co-Developer make application to, or petition any court or authority having jurisdiction, nor commence, nor prosecute any action for partition and sale of the other Co-Developer's Interest; - 8 - (b) have the right to a conveyance of title to its interest in the Project except as provided in accordance with the terms of this Agreement; (c) register or deposit against title to the Lands or any part of the Lands any document, instrument or notice of the Co-Developer's Interest or any part of it except as specifically provided herein; (d) except as expressly permitted under this Agreement or in writing by both parties, mortgage, lien, pledge, encumber, alienate, transfer, grant options to purchase, grant rights to purchase or assign any interest in the Project or right or interest created under this Agreement. 3.4 Injunction Notwithstanding the arbitration and mediation provisions set out in Schedule E hereof, upon a breach of Section 3.3 by any Co-Developer, the other Co-Developer may, in addition to all other rights and remedies available under this Agreement for a default in law or equity, be entitled to obtain an order restraining the commission of any such breach and the Co-Developer in default will not be entitled to plead in defence that there would be an adequate remedy at law, it being recognized and agreed that the injury and damage resulting from any such breach could not be entirely compensated by an award of damages. PART 4 DEVELOPMENT OF THE PROJECT 4.1 Decision Making The School Board and the Township shall cooperate with respect to the contracting, property management, and any other constructions processes that are required for the Project, except with respect to those Major Decisions explicitly set out in Part 5 hereof, which shall be determined in accordance with the provisions of said Part 5, and except with respect to the tendering process, which shall be overseen by The School Board with the Township's to be consulted as and when required as determined acting reasonably. 41 Development of Project The Co-Developers shall retain the services of the Architect to design the Project and, in consultation with the School Board and the Township, co-ordinate and oversee all aspects of the Project until completion, to ensure that the Project is designed and developed in keeping with the Parties' intent. 4.3 Contractor The Co-Developers shall retain the services of a Contractor to oversee and complete the construction of the Project in accordance with the terms of the Construction Contract, including without limitation arranging for a performance bond and labour and materials bond from the Contractor naming both the School Board and the Township as beneficiaries thereunder. 4.4 Engagement of Contractor The Co-Developers shall engage the services of the Contractor as an independent contractor and not as an employee. 4.5 Approved Plans and Specifications The Co-Developers hereto acknowledge and agree that any use of the Lands by the Co- Developers shall be on and subject to the following terms and conditions: 4.5.1 Site Plans, Reports and Specifications The use and development of the Lands shall be in accordance with and as set out on the Site Plan Drawings, Details, Reports and Specifications, attached hereto as Schedule "D". - 9 - 4.5.2 Lighting All on-site exterior lighting shall be L.E.D., directed downward and internal to the site and shall be in accordance with "Dark Sky Friendly" fighting design. Designs must show that fixtures have no up light focus. 4.5.3 Parking Areas and Driveways (a) All driveways and internal fire routes shall be required to satisfy Fire Access Route Design as per section 3.2.5.6. of the Ontario Building Code. Parking areas, loading, and access areas shall be kept free and clear of snow and ice and kept adequately drained. (b) The Co-Developers agree to obtain all necessary approvals from the Ministry of Transportation, County of Simcoe, and Township of Oro-Medonte. 4.5.4 Outside Storage No outside storage shall be permitted between any buildings on the premises and any street. Any other outside storage shall be contained in the fenced compound and subject to the development restrictions contained herein. 4.5.5 Garbage Storage The Co-Developers agree to provide suitable storage areas for garbage and waste, as shown in Schedule D, and to install and maintain litter containers in and around development on the Lands. All metal scrap and associated refuse contained in the fenced compound shall be removed on a weekly basis. 4.5.6 Garbage Collection The Co-Developers acknowledge and agree that any Industrial, Commercial and Institutional (I. C. & 1) and multi-unit locations (six (6) units and over) will not receive curb side waste collection services from the County of Simcoe. Each I. C. & I location and multi-unit residential location will be responsible for their own garbage and recycling disposal. 4.5.7 Landscaping The Co-Developer shall complete all landscaping and landscaped areas shown on the Site Plan Drawings, Details, Reports and Specifications, as soon as weather permits, and all grading and sodding required, according to any Engineering drawings submitted, shall be done on all lawn areas. 4.5.8 Erosion and Siltation Control The Co-Developers shall take all necessary precautions to prevent erosion and sedimentation of ditches and culverts, slopes, etc., and prevent the migration of all silt, sediment and deleterious materials within the Site Plan, and downstream prior to and during construction. The co- Developer agrees to maintain all erosion and siltation control devices in good repair until vegetative cover has been successfully established. 4.5.9 Signage The Co-Developers hereby acknowledge and understand that all proposed signage will be reviewed in order to determine conformity with the provisions of the sign by-laws of the Township of Oro-Medonte and the County of Simcoe. However,final approval of proposed signage is to be granted through sign permits. - 10 - 4.6 Environmental Compliance Approval (a) The co-Developers agree to comply with the terms and conditions of the Environmental Compliance Approval (the "ECA") received from the Ministry of the Environment, Conservation and Parks ("MECP"). (b) The Parties acknowledge that at the date of this Agreement, the stormwater and sewage ECAs are in the name of the Corporation of the Township of Oro-Medonte, as the Township is the sole owner of the Lands. Upon completion of the Title Transfer, the Parties shall apply to the MECP to have all ECAs amended to reflect that the Township of Oro Medonte and the School Board are the joint owners of the system. (c) The Parties agree that the Cost Sharing and Operations Agreement shall include provisions whereby the School Board assumes responsibility for the operation of the on site storm and sewage works and likewise all the reporting requirements under the ECAs. 4.7 Management of Tender Process The process related to the tendering and awarding of the Contract for construction of the Project shall be managed by the School Board and agreed to in writing by the Township. 4.8 Performance Bond The School Board shall arrange for the Contractor to provide security in the form of a performance bond and a labour and materials bond, each in the principal amount of fifty percent (50%) of the tender price of the Construction Contract. 4.9 Insurance Upon execution of this Agreement and prior to the commencement of construction, each Co- Developer shall arrange for suitable insurance coverage with respect to its Co-Development Interest as well as general liability insurance to cover against claims for loss, damage, personal injury and negligence in an amount to be determined by the Co-Developers, acting reasonably. Such policies of insurance shall name each of the Co-Developer's as an additional insured under the policy. 4.10 Ancillary Agreements. The Co-Developers shall enter into all necessary ancillary agreements reasonably required to ensure the proper operation of the Project following completion of construction. - 11 - PART 5 MAJOR DECISIONS 5.1 Major Decisions No act will be done, sum expended, decision made or obligation incurred by any Co-Developer concerning a matter within the scope of the matters enumerated below ("Major Decisions") unless such matter has been approved by both Co-Developers; except that upon the occurrence of an Event of Default the Co-Developer which is not in default will have the sole right, power and authority to approve any Major Decision and cause same to be implemented. The Major Decisions are: (a) dissolution of the Co-Development where no Co-Developer has committed an Event of Default under the terms of this Agreement; (b) decisions in respect of the construction and development of the Project in a manner other than under the Construction Contract, the Plans or the making of any capital improvements, repairs, alterations or changes to the Project not provided for in the Development Budget; (c) decisions in respect of approving and amendin&the Development Budget; (d) decisions as to the conduct of litigation concerning the Project during the term of the Co-Development or concerning the Co-Development itself, save and except litigation at any time against the other Co-Developer; (e) the selection or replacement of the Contractor; and (f) the appointment of a replacement Architect. 5.2 Process for Major Decisions All Major Decisions will promptly be referred to the Co-Developers for decision. The Co- Developers covenant and agree each with the other to promptly meet or confer by telephone to make such referred Major Decisions. A Co-Developer who unreasonably refuses or delays such meeting or conference will be considered to be in default under this Agreement, if such refusal or delay does or might adversely affect the construction of the Project or the cost or value of it. It is acknowledged that a Major Decision in the case of the Township, requires Council approval, and in the case of the School Board, requires approval by the Board and/or the Ministry of Education. Accordingly, the passage of time due to the normal process to obtain such approval on Major Decisions shall not be considered to be a delay or default under this Agreement. PART 6 FINANCING AND ACCOUNTING 6.1 Examination Each of the Co-Developers shall have the right at all reasonable times during usual business hours during the term of the Co-Development to audit, examine and make copies of or extracts from the books of account, records and other documents or papers kept in connection with the Co-Development. Such right may be exercised through any agent or employee of such party designated by it. Such party will bear all expenses incurred in any examination made for its account. 6.2 Accounts Each Co-Developer shall maintain its own separate accounts with respect to the Co- Development and process all payments required to be made toward or with respect to the Co- Development through such accounts which are to be identified as accounts maintained for this Co-Development. No expenditures unrelated to this Co-Development shall be paid from such - 12 - accounts. Each Co-Developer shall make its bank account records for the Co-Development available for examination in accordance with section 6.1 above. 6.3 Statements The Funded Amount of each Co-Developer with respect to the Co-Development will be determined in accordance with generally accepted principles applied on a consistent basis for the duration of the Co-Development. As a Co-Developer, each Co-Developer will separately compute its capital cost with respect to the Project, and will separately claim any deductions, allowances and credits which it is entitled to claim in respect of its Co-Development Interest for the purposes of the Income Tax Act(Canada). PART 7 DEVELOPMENT COSTS, CONTRIBUTIONS,AND ALLOCATIONS 7.1 Payments and Disclosure (a) Each of the Co-Developers shall pay its respective invoice obligations or shall make such further cash contributions as necessary to cover the costs for development and construction of the Project including normal progress payments required pursuant to the Construction Contract, all in accordance with their respective shares as described in the Development Budget, within a reasonable period from the date of receipt of such invoice for payment or request for cash contribution toward the cost of the Project. Upon making the required payments or cash contributions, each of the Co-Developers shall provide or cause to be provided confirmation of such payment or contribution to the other Co-Developer to ensure that such payments or contributions are made on a timely basis when called for. (b) The Parties acknowledge and agree that, notwithstanding the allocation shown in the Development Budget, the School Board shall pay in full all costs associated with the installation of phase 2 of the septic system. If the Township undertakes the planned expansion of the Township Exclusive Use Facility in the future, the Township covenants and agrees to repay its fifty percent (50%) share of the costs (estimated at $245,000) associated with the installation of phase 2 of the septic system at that time. (c) Except as otherwise provided herein, the School Board shall not be required to make any contribution to the costs of construction for the Project until such time as the Title Transfer has been completed. The Township shall be responsible to pay directly all such costs incurred during such period subject to re-imbursement. (d) The obligations and covenants of the parties herein shall survive the expiry of the term of the Co-Development. 7.2 Cash Deficiencies If, at any time or from time to time either Co-Developer fails to make a payment or provide a contribution as required pursuant to section 7.1 above for more than thirty (30) days after a request has been made by the Contractor and a recommendation for payment has been received from the Architect, or if either Co-Developer fails to pay or contribute to other outlays or expenses made or incurred by the Co-Developers under the terms of this Agreement in connection with the Project (a "Cash Deficiency"), such Cash Deficiency may be funded by the other Co-Developer in accordance with section 7.5 below. 7.3 Notice of Additional Funds If any payments or additional funds are provided or made available under the provisions of section 7.2, the Architect shall immediately determine the amount of additional funds that are reasonable and necessary and in the best interests of the Co-Development allocated in accordance with the Development Budget, and that amount of additional funds as allocated shall promptly be communicated by the Architect to each Co-Developer by a written notice containing a statement setting out the purpose for which such additional funds are required. - 13 - 7.4 Contributions of Additional Funds Within thirty (30) days of the receipt of a notice from the Architect, each Co-Developer shall pay its share of approved invoices or contribute its share of the Cash Deficiency and Architect will credit the Funded Amounts of each Co-Developer with the amounts paid. 7.5 Default of a Party Contribution by Other Party If a Co-Developer fails, after any applicable cure or notice period, to pay the entire amount which such Co-Developer (in this Part 7 and in Part 8 referred to as the "Defaulting Party") is required to pay under section 7.1, 7.2, 7.3, or 7.4, then and in such event, the Co-Developer which has fulfilled its obligations to pay its share of required funds (in this Part 7 and in Part 8 referred to as the "Non Defaulting Party") will cause notice of such default to be given to the Defaulting Party. If such default continues for a period of twenty-one (21) days after the giving of such notice, the Non Defaulting Party will have the option (unless and until such default is cured) to pay an amount equal to such required contribution from the Defaulting Party and the amount so paid will be treated as a loan ("Contribution Loan") to the Defaulting Party bearing and accruing interest at a rate of five percent (5%) per year over the Prime Rate, compounded monthly and due within thirty (30) days of payment. Any Contribution Loan will be secured in accordance with section 7.6. 7.6 Assignment of Co-Development Interest as Security The repayment of any amount (together with interest on it calculated at the rate provided in section 7.5) loaned to the Defaulting Party by the Non Defaulting Party as a Contribution Loan will be secured by the Defaulting Party's Co-Development Interest, and the Defaulting Party by this Agreement hereby assigns and sets over to the Non Defaulting Party, the Defaulting Party's Co-Development Interest as security for repayment of any Contribution Loan. Any such security shall survive the expiry of the term of the Co-Development until the Contribution Loan to which it relates has been paid in full together with all accrued interest thereon, and shall be subordinate to and postponed in favour of: (i) firstly, any interim construction financing arranged by the Parties, if applicable, and (ii) secondly, any cross charges granted pursuant to the Cost Sharing and Operations Agreement. All amounts received with respect to the enforcement of any such security including the performance bond and the labour and materials bond held by or issued for the benefit of the Non Defaulting Party will be applied first to payment of any interest payable in respect of all Contribution Loans then outstanding and then to the principal of such Contribution Loans. PART 8 DEFAULT AND DISSOLUTION 8.1 Events of Default The occurrence of any of the following events will constitute an event of default ("Event of Default") under this Agreement: (a) the failure of a Co-Developer to pay any invoice approved by the Architect or to make any additional contributions as required under the provisions of Part 7 after the time limited for the making of such additional contributions and the other Co-Developer electing not to make a Contribution Loan, if said default continues for a period of fifteen (15) days following written notice thereof; (b) any breach of section 3.3; (c) the bankruptcy or filing of a proposal under the Bankruptcy and Insolvency Act or insolvency of, or assignment for the benefit of creditors or other arrangement with creditors by, any Co-Developer; (d) the dissolution, winding up or termination of either party; - 14- (e) any refusal by a Co-Developer to proceed with the development and construction of the Project or any part in accordance with the Plans or the Construction Contract; (f) default in performance of any other agreements or obligations of any Co-Developer contained in this Agreement if said default continues for a period of thirty (30) days following written notice of such default. 8.2 Election of Non Defaulting Party If an Event of Default specified in section 8.1 has occurred, the Non Defaulting Party may elect to pursue any one or more of the following remedies: (a) terminate this Agreement and sue for damages; (b) acquire the Defaulting Party's Co-Development Interest under section 8.3 of this Agreement, subject to all agreements, encumbrances and security interests relating thereto; (c) sue for damages or bring any proceedings in the nature of specific performance, injunction or other equitable remedy, it being acknowledged by each of the Co-Developers that damages at law may be an inadequate remedy for a default or breach of this Agreement. 8.3 Purchase of Interest Upon Default The purchase of a Defaulting Party's Co-Development Interest under section 8.2 will be conducted in accordance with the following provisions: (a) upon the election of a Co-Developer to acquire a Defaulting Party's Co-Development Interest under section 8.2, the Non Defaulting Party may acquire the Defaulting Party's Co- Development Interest at a price equal to 100% of the Defaulting Party's Funded Amount in the Project less the amounts outstanding under any claims or liabilities of the Defaulting Party which are secured by or charged against the Defaulting Party's Co-Development Interest and less any amounts owed and outstanding to the Non Defaulting Party in connection with loans made or considered to be made by the Non Defaulting Party to the Defaulting Party under this Agreement; and (b) the price determined under this section 8.3 and any funds owing by the Non Defaulting Part to the Defaulting Party as a result shall be payable in equal annual instalments without interest commencing as of the first day of the Accounting Year next following the year in which the Event of Default occurred and shall be fully repaid within five (5) years immediately following the date of commencement. - 15 - 8.4 Procedure Upon Purchase of Interest. If a Co-Developer elects to purchase the Co-Development Interest of a Defaulting Party under this Part 8, the Co-Development Interest of the Defaulting Party will be considered to have been transferred and conveyed to the Non Defaulting Party beneficially without the necessity of any documents of transfer having been executed by the Defaulting Party and the Defaulting Party by this Agreement appoints irrevocably the Non Defaulting Party and any of its agents, officers or employees as its attorney in fact with full power and authority to execute any and all documents which the Non Defaulting Party considers necessary to evidence its ownership of the Co-Development Interest of the Defaulting Party including the obtaining of a vesting order to have title vested in the name of the Non Defaulting Party. PART 9 ARBITRATION AND DISPUTE RESOLUTION 9.1 Arbitration and Dispute Resolution Subject to the remedies set out in Part 8 of this Agreement with respect to obtaining a vesting order, any dispute between the parties concerning any matter which has not been resolved after fifteen (15) days will be submitted following the procedure set out in Schedule "E" hereto. PART 10 GENERAL PROVISIONS 10.1 Waiver No consent or waiver, express or implied, by either Co-Developer to or of any breach or default by the other in the performance by the other of its obligations under this Agreement will be considered or construed to be consent or waiver to or of any other breach or default in the performance by such other party of the same or any other obligations of such Co-Developer. Failure on the part of either Co-Developer to complain of any act or failure to act of the other Co-Developer or to declare the other Co-Developer in default irrespective of how long such failure continues, will not constitute a waiver by such Co-Developer of its rights under this Agreement. 10.2 Severability Should any section, subsection, clause, paragraph or provision of this Agreement be invalid or unenforceable to any extent,the same shall not affect the validity of the Agreement as a whole or any part thereof, other than the provision so declared to be invalid. 10.3 Additional Remedies The rights and remedies of the Co-Developers will not be mutually exclusive. The exercise of one or more of the provisions of this Agreement will not preclude the exercise of any other provisions. Each of the Co-Developers confirms that damages at law may be inadequate for a breach or threatened breach of any provision, the respective rights and obligations under this Agreement will be enforceable by specific performance, injunction or other equitable remedy but nothing in this Agreement is intended to, nor will it, limit or affect any rights or rights at law or by statute or otherwise of any part aggrieved as against the other for breach or threatened breach of any provision; it being the intention of this paragraph to make clear the agreement of the Co-Developers that the respective rights and obligations of the Co-Developers will be enforceable in equity as well as at law or otherwise. 10.4 Governing Law This Agreement and the obligation of the Co-Developers under this Agreement will be interpreted, construed and enforced in accordance with the laws of the Province of Ontario and any action or suit arising from this Agreement will have as its forum the courts of the Province of Ontario. - 16 - 10.5 Other Applicable Laws Except as specifically stated herein, nothing in this Agreement shall relieve the Co-Owners from compliance with other applicable municipal by-laws, laws and/or regulations or laws and/or regulations established by any other governmental body which has jurisdiction over the Lands. 10.6 Entire Agreement The parties have expressed their entire understanding concerning the subject matter of this Agreement and no representation, warranty, covenant, condition, term or reservation, implied or otherwise, will be read into this Agreement, nor will any oral or written understanding entered into before this Agreement modify or compromise any of the terms or conditions contained in this Agreement. 10.7 Further Assurances Each of the parties will do all acts and things and execute and deliver all documents necessary or desirable to give effect to the provisions and intent of this Agreement. 10.8 Time Time shall be of the essence of this Agreement. 10.9 Notices In this Agreement: (a) any notice or communication required or permitted to be given under this Agreement will be in writing and will be considered to have been given if delivered by hand, e-mailed, transmitted by confirmed facsimile transmission or mailed by prepaid registered post in Canada, to the address, e-mail address or facsimile transmission number of each party set out below: (i) if to the School Board: Simcoe County District School Board 1170 Highway 26 Midhurst, ON L9X 1N6 Fax: 705-728-2265 Attention: Andrew Keuken E-mail: akeuken@scdsb.on.ca with a copy to: Barriston LLP 151 Ferris Lane, Suite 202 Barrie, ON L4M 6C1 Attention: Lisa Roszell Email: Iroszell@barristonlaw.com (ii) if to the Township: The Corporation of the Township of Oro-Medonte 148 Line 7 South Oro-Medonte, ON LOL 2E0 Fax: 705-487-0133 Attention: Shawn Binns Email: sbinns@oro-medonte.ca - 17 - with a copy to: Rusell Christie LLP 505 Memorial Avenue Orillia, Ontario L3V ]W5 Attention: Ed Veldboom Email: eveldboom@russellchristie.com or to such other address as any party may designate in the manner set out above; and (b) Each Party shall deliver all notices by personal delivery, nationally recognized overnight courier (with all fees prepaid), facsimile or email of a PDF document (in each case, with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a notice is conclusively deemed to have been given only (i) if sent by personal delivery or by courier (all fees prepaid) on the date of actual receipt by the receiving party; if sent by facsimile or email of a PDF document (with confirmation of transmission) on the date of transmission if a Business Day or if not a Business Day or after 5:00 p.m. on the date of transmission, on the next following Business Day; or if sent by certified or registered mail by the Canada Post Corporation, return receipt requested, postage prepaid on the fifth (51h) after the mailing thereof; and (ii) if the party giving the notice has complied with the requirements of this Section. 10.10 Counterparts and Electronic Signature This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and taken together shall constitute one and the same agreement. Counterparts may be executed in either original or by electronic means, including, without limitation, by facsimile transmission, e-signature and by electronic delivery in portable document format (".pdf") or tagged image file format (".tif') and the parties shall adopt any signatures received by electronic means as original signatures of the parties. This Agreement may be executed by the parties or by their respective attorneys on their behalf in any number of counterparts with the same effect as if the parties had all signed the same document. All counterparts of this Agreement will be construed together and constitute one instrument. 10.11 Successors and Assigns Subject to the restrictions on transfers and encumbrances set out in this Agreement, this Agreement will enure to the benefit of and be binding upon the undersigned parties and their respective successors and permitted assigns. No party may assign this Agreement except in accordance with the provisions of this Agreement. 10.12 Recitals The parties hereby acknowledge that the Recitals to this Agreement are true and correct and form part of this Agreement. 10.13 Headings and Section Numbers The headings and section numbers contained herein are for reference only and in no way affect this Agreement or its interpretation. 10.14 Force Majeure In the event either the School Board or the Township is unable to fulfil or is delayed or restricted in the fulfillment of any obligations hereunder in respect of the supply or provision of any service or utility or the doing of any work or the making of any repairs by reason of being unable to obtain the material, goods, equipment, service, utility or labour required to enable it to fulfil such obligation, or by reason of any statute, law, by-law or order in council or any - 18 - regulation or order passed or made pursuant to, or by reason of the order or direction of any legislative, administrative or judicial body, controller or board, or any governmental department or any governmental officer or other authority having jurisdiction, or by reason of its inability to procure any licence or permit required therefore, or by reason of not being able to obtain any permission or authority required therefore, or by reason of acts of God, accident, riots, war, terrorist act, epidemic, pandemic, quarantine, civil commotion, breakdown of communication facilities, breakdown of web host, breakdown of internet service provider, fire, explosion, natural catastrophes, governmental acts or omissions, changes in laws or regulations, any strikes, slowdowns or other condoned action of workmen or shortage of material, or any cause beyond its control, other than any insolvency, lack of funds or credit or other financial cause of delay, the School Board or the Township as the case may be, shall be relieved from the fulfillment of such obligations so long as such cause continues, provided always that (except as may be provided in this Agreement) neither Party shall be entitled to any compensation for any inconvenience or nuisance or discomfort thereby occasioned, or to cancel or terminate this Agreement. Force Majeure shall not include the novel coronavirus Covid-19 pandemic, which is ongoing as of the date of the execution of this Agreement. For the avoidance of doubt, Force Majeure shall not include (a) financial distress nor the inability of either party to make a profit or avoid a financial loss, (b) changes in the market prices or conditions, or (c) a party's financial inability to perform its obligations hereunder. 10.15 Amendments The parties hereto may only amend this Agreement by further agreement in writing executed by all parties hereto. [signature page follows] - 19 - IN WITNESS WHEREOF the parties hereto have executed this Agreement as of the 10th day of April, 2024. SIMCOE COUNTY DISTRICT SCHOOL BOARD By: Name: Title: ;rt r 0�OVI By: Nam oy Titl : dlIrpefS h THE CORPORATION OF THE TOWNSHIP OF ORO- MEDONTE 17 By: me: Randy reenlaw Title: Mayor By: Nam :Yvonne Aubichon Title: erk SCHEDULE A LANDS Main parcel PART N1/2 OF W1/2 LOT 1 CONCESSION 5 ORO AS IN R01115757 EXCEPT PART 2, 511142943; TOWNSHIP OF ORO-MEDONTE PIN -74056-0072 Driveway parcel PCL 1-11 SEC 51-ORO-4; PT LT 1 CON 5 ORO PT 2, 511320347; EXCEPT PT 5,51R20583; S/T PT 2, 51R20583 AS IN LT172964; ORO-MEDONTE; SUBJECT TO AN EASEMENT IN GROSS OVER PART 2, 511143462ASIN SC1904036 PIN -74056-0053 Small portion of the driveway that crosses an adjacent parcel PCL 1-12 SEC 51-ORO-4; PT LT 1 CON 5 ORO PT 5, 511120583 T/W PT 2, 511120583 AS IN LT172964; ORO-MEDONTE PIN — 74056-0054 PIN map N N PROPERTY INDEX MAP A SGAB DE 52) o o. SCALE y LEGEND IP 1 A YF!„Y 2,7 +'' M1bFS1Eua5pF?pF�mme 1 > wo-w.wFweo-mrcr PJVton64'� ,IMWP r gE 'v ,g r» "nnr9nrir, r s 4105 m "�^F Y vAsruW.rer UDS IS NOT A PLAN OF SUWM , NOTES M LVONM{l]011 A7 TNIS MN MY NOT MEMO 1 W A"^ i N161S�Mfi9XS ,y P" y,ai� I ancrx"tteu Sw sn 09'n Y7urrsmrP.6 5va'"ur wap wn5 n + � �, uer.�.ewurx wsbe mzx s vuremxss r�uv t A .. ,. .dYau Id0.IQN.YIAM.UM'.OL RRBRACMLT n #SU°WAT R�TRm mew^ II M h^ 4lip� h PTN "t' �u Address. Ana Ma��uStatus ...................�.... ......... ..... ❑w Cock on.1hp 6d®arc o rdsrtees 74056-0072 Pare% Address Not Found 76727m2 SCHEDULE A LANDS Topographical plan of survey ivoGternul n.AM a wm�c, r.+rw HORSESHOE VALD ROAD wT 1 r(�IOO+AL RGd MLORAMCC MWM9 Mi MW MO MPS OF CW 4C MWOMM Id1 S �\'+dw �, rowaRr n oRo-YmaRR tOT u° V _-_---�---- q ti �• �f --_-�-�•'.�r:���j�-' __ i w� �� vim__ « CONCE59OH S 41 MRf L.�w 111►MYP . ZMA �srsaa•...,«�..� _ -. SCHEDULE B CONDITIONAL DATES [January 25, 20231: Approval for staff to enter into this Agreement by the board of directors of the School Board (see subsection Error! Reference source not found.) [May 16, 20231: Approval of this Agreement by the Ministry of Education (see subsection Error! Reference source not found.) [Insert Date]: Council's ratification of this Agreement (see subsection Error! Reference source not found.) [Insert Date]: Completion, acceptance and approval by both the Township and the School Board of the Schedules to be attached to and to form part of this Agreement (see subsection Error! Reference source not found.) [Insert Date]: Execution by both parties of the Cost Sharing and Operations Agreement (see subsection Error! Reference source not found.) [Insert Date]: Approval of the allocation of the Development Costs pursuant to the Development Budget (see subsection Error! Reference source not found.) -4 - SCHEDULE C DEVELOPMENT BUDGET General Contract Value $ 26,247,000 SCDSB Portion $ 18,863,169 Township of Oro-Medonte Portion $ 7,383,831 Breakdown of Components SCDSB Site Costs $ 3,679,115 Township Site Costs* $ 2,501,237 School Building Costs $ 14,082,133 Gym Building Costs $ 2,203,842 Community Centre Building Costs $3,780,673 * As per section 7.1(b),the Parties acknowledge and agree that, notwithstanding the allocation shown in the Development Budget, the School Board shall pay in full all costs associated with the installation of phase 2 of the septic system. If the Township undertakes the planned expansion of the Township Exclusive Use Facility in the future,the Township covenants and agrees to repay its fifty percent (50%) share of the costs, estimated at $245, 000 associated with the installation of phase 2 of the septic system at that time. - 5 - SCHEDULE D CONCEPT PLAN,SITE PLAN DRAWINGS, FLOORPLANS .� m J, -JII� 0 = 7 c IfN f •• I f I ��I Q V'I! il�liii Its kC� + .,w r P UQ, ro � t , i Exclusive Use-She Plan ..Nrs .. SCHEDULE D CONCEPT PLAN, SITE PLAN DRAWINGS, FLOORPLANS i ExcWsrve Use-Level f I� X` i Pee, 5 ro U -Level 2 ` A( F�leWe�ve Uae..hoof - Hcr. - 7 - SCHEDULE E ARBITRATION AND DISPUTE RESOLUTION ARBITRATION AND DISPUTE RESOLUTION PROCEDURES Al. Negotiate in Good Faith The Parties agree that during the performance of their respective obligations under this Agreement each of them will make good faith efforts to resolve any disputes, controversies, questions or claims arising out of or relating to this Agreement, including the obligations of any Party, the content, nature, reasonableness or necessity of any document to be provided herein or any other issue in dispute in relation to or arising out of this Agreement (all of which are referred to as a "Dispute") by negotiation. Notwithstanding, either Party may initiate arbitration as provided for herein in order to resolve a Dispute. Any Dispute not resolved by negotiation shall be referred to and be finally resolved by arbitration as set out below. A2. Arbitration Whenever any arbitration is permitted or required hereunder to resolve a Dispute between the Parties, arbitration proceedings shall be commenced by the Party desiring arbitration (the "Initiating Party") giving notice to the other Party (the "Responding Party") specifying the matter to be arbitrated. The Initiating Party shall nominate one (1) arbitrator and shall notify the Responding Party hereto of such nomination. Such notice shall set forth a brief description of the matter submitted for arbitration and, if appropriate, the paragraph hereof pursuant to which such matter is so submitted. The Responding Party shall within fifteen (15) days after receiving such notice nominate an arbitrator and the two (2) arbitrators shall select a third arbitrator who shall serve as chairman of the arbitration tribunal. If the said arbitrators shall be unable to agree in the selection of such third arbitrator, such arbitrator shall be designated by a Judge of the Superior Court of Justice at Barrie and shall act as chairman. The arbitration shall be governed by Ontario's Arbitrations Act, 1991, S.O. 1991, c. 17 as amended from time to time and shall take place in the City of Barrie, in the County of Simcoe. The chairman shall fix the time and place for the purpose of hearing such evidence and representations as either of the Parties may present and, subject to the provisions hereto, the majority decision of the arbitrators in writing shall be binding upon the Parties both in respect of procedure and the conduct of the Parties during the proceedings and the final determination of the issues therein. Said arbitrators shall, after hearing any evidence and representations that the Parties may submit, make their decision and reduce the same to writing and deliver one (1) copy thereof to each of the Parties hereto. The majority of the arbitrators may determine any matters of procedure for the arbitration not specified herein. If the Responding Party receiving the notice of the nomination of an arbitrator by the Initiating Party desiring arbitration fails within the said fifteen (15) days to nominate an arbitrator, then the arbitrator nominated by the Initiating Party may proceed alone to determine the dispute in such manner and at such time as he shall think fit and his decision shall be binding upon the Parties. Notwithstanding the foregoing, any arbitration may be carried out by a single arbitrator if the Parties hereto so agree, in which event the provisions of this paragraph shall apply, mutatis mutandis. 8, The cost of the arbitration shall be borne by the Parties hereto as may be specified in such determination. In the event that any Dispute is unresolved by an otherwise defined Closing Date of any transaction which is the subject of the arbitration, the Closing Date shall be automatically extended to that date which is seven (7) Business Days following delivery to the Parties of the decision of the said arbitrator(s) determining such Dispute.