HomeMy WebLinkAbout2006-052
THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON
BY-LAW 2006-052
Being a by-law to authorize the execution of an Indemnity
Agreement between Players Business Park Ltd. and West
Diamond Properties Inc. and Halloway Holdings Limited and
The Corporation of the Municipality of Clarington
WHEREAS at their meeting held on March 1,2006, the Council of the
Municipality of Clarington adopted Official Plan Amendment 43, Official Plan
Amendment 44, Zoning By-law Amendment 2006-046 and Zoning By-law
Amendment 2006-047 as they apply to certain lands owned by Players Business
Park Ltd. and West Diamond Properties Inc. (Players-West Diamond) and
Halloway Holdings Limited (Halloway), respectively;
AND WHEREAS on the same date, the Municipality of Clarington (Municipality)
entered into Principles of Understanding with Players-West Diamond and
1613881 and with Halloway;
AND WHEREAS on the same date the Municipality, Players-West Diamond and
Halloway entered into the Stevens Road Extension Agreement;
NOW THEREFORE THE CORPORATION OF THE MUNICIPALITY OF
CLARINGTON HEREBY ENACTS AS FOLLOWS:
1. THAT the Mayor and Clerk are hereby authorized to execute, on behalf of
the Corporation of the Municipality of Clarington and seal with the
Corporation Seal, an indemnity agreement between Players-West
Diamond, Halloway and said Corporation; and
2. THAT the indemnity agreement attached hereto as Schedule "A" forms
part of this by-law.
By-law read a first and second time this 1 st day of March 2006.
By-law read a third time and finally passed this 1 st day of March 2006.
t$4tk1L
John Mutton, Mayor
THIS INDEMNITY AGREEMENT made as of the 1st day of March, 2006.
BETWEEN:
PLAYERS BUSINESS PARK LTD. and
(hereinafter called "Players")
WEST DIAMOND PROPERTIES INC.
(hereinafter called "West Diamond")
(Collectively hereafter called "Players-West Diamond")
OF THE FIRST P ART
- and -
HALLOWAY HOLDINGS LIMITED
(hereinafter called "Halloway")
OF THE SECOND PART
- and -
THE CORPORATION OF THE
MUNICIPALITY OF CLARINGTON
(hereinafter called the "Municipality")
OF THE THIRD PART
WHEREAS:
A. At its meeting on March 1, 2006, the Municipality's Council adopted or passed Official
Plan Amendment 43 ("OP A 43"), Official Plan Amendment 44 ("OP A 44"), Zoning By-law
Amendment 2006-046 and Zoning By-law Amendment 2006-047 as they apply to certain lands
owned by Players-West Diamond and Halloway, respectively ("Planning Documents"). On the
same date, the Municipality entered into Principles of Understanding with Players, West
Diamond and 1613881 ("Players-West Diamond Principles") and Principles of Understanding
with Halloway ("Halloway Principles"). As well, on the same date the Municipality, Players-
West Diamond and Halloway entered into the Stevens Road Extension Agreement; and
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B. The Municipality's Council passed By-law 2006-052 to authorize the Mayor and
Municipal Clerk to execute this Indemnity Agreement on behalf of the Municipality,
NOW THEREFORE in consideration of the premises herein contained and the sum of
TWO DOLLARS ($2.00) and other good and valuable consideration (the receipt whereof by
each of the Parties is hereby acknowledged) each of the Parties covenants and agrees with the
other Parties as follows:
Co-operation with the Municipality
1. If the Municipality's Council adopts or enacts proposed OPA 43, OPA 44 and Zoning
By-law Amendments 2006-046 and 2006-047 as they apply to the Owners' Commercial
Lands (as defined in the Players-West Diamond Principles) ("Players-West Diamond
Planning Documents") and to the Owner's Commercial Lands (as defined in the
Halloway Principles) ("Halloway Planning Documents") and any appeal is made to the
Ontario Municipal Board in respect of either of these Planning Documents, Players-West
Diamond, Halloway and the Municipality will cooperate to achieve the "Final Approval"
(as defined in the Players-West Diamond Principles and the Halloway Principles,
respectively) of the Players-West Diamond Planning Documents and the Halloway
Planning Documents. Players-West Diamond, Halloway and the Municipality will use
every reasonable effort to avoid the necessity of a hearing and to ensure the efficient
conduct of the hearing if one is required. Also, Players- West Diamond, Halloway and
the Municipality will work together to coordinate their respective cases so as to
streamline the hearing to avoid duplication and to minimize costs.
Costs Where There are Appeals
2.
(a)
In satisfaction of the Municipality's policy regarding costs, Players-West
Diamond and Halloway will pay to the Municipality the Municipality's
reasonable legal and consulting costs for any Ontario Municipal Board or Court
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proceedings arising from any appeal of any of the Planning Documents in order
to achieve their Final Approval. Players-West Diamond will be responsible only
for that portion of the costs of any appeal( s) of the Players-West Diamond
Planning Documents in order to achieve Final Approval of the Players-West
Diamond Planning Documents. These costs shall be those which are determined
by the Municipality's Director of Planning Services, acting reasonably, to be
reasonable attributable to the Ontario Municipal Board and/or Court appeal(s) of
the Players-West Diamond Planning Documents. Halloway will be responsible
only for that portion of the costs of an appeal(s) of the Halloway Planning
Documents in order to achieve Final Approval of the Halloway Planning
Documents. These costs shall also be those which are determined by the
Municipality's Director of Planning Services, acting reasonably, to be reasonably
attributable to the Ontario Municipal Board or Court appeals of the Halloway
Planning Documents.
(b) The costs that are determined by the aforesaid Director to be the costs that should
be borne by Players-West Diamond and Halloway jointly will be paid by Players-
West Diamond and Halloway to the Municipality in the following proportions:
Players-West Diamond 65% and Halloway 35%.
(c) Costs referred to in paragraphs 2(a) and 2(b) will be paid by Players-West
Diamond and Halloway, respectively to the Municipality within 30 days after a
written invoice is given by the Municipality to them or either of them, as the case
may be. Such supporting material that the aforesaid Director, acting reasonably,
considers to be necessary shall be given to either or both Players-West Diamond
and Halloway, as the case may be, with each invoice. Invoices shall be supported
by copies of invoices rendered to the Municipality by its solicitor and by its
consultants. Invoices are to be rendered by the Municipality monthly, if possible.
3. Notwithstanding the foregoing provisions of paragraph 2, if any appeals to the Ontario
Municipal Board or Court proceedings arising therefrom is brought only in respect of the
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Players-West Diamond Planning Documents, Players-West Diamond shall pay the
Municipality 100% of the Municipality's reasonable legal and consulting costs. If any
appeal to the Ontario Municipal Board or Court proceedings resulting therefrom is
brought only in respect of the Halloway Planning Documents, Halloway shall pay the
Municipality 100% of the Municipality's reasonable legal and consulting costs. In each
case, the Municipality's Director of Planning Services, acting reasonably, shall make the
determinations necessary to implement the intent of this paragraph 3. The provisions of
paragraph 2( c) respecting invoices and payments shall apply with all necessary
amendments to implement the intent of this paragraph 3 being considered to have been
made.
Costs of Preparinl! and Rel!isterinl! on Title
Principles of Understandinl! and Other Al!reements
4. Players-West Diamond will indemnify the Municipality against 50% of the reasonable
legal and consulting costs and disbursements incurred by it in preparing and registering
on title the Principles of Understanding between Players-West Diamond, 1613881
Ontario Inc. and the Municipality and between Halloway Holdings Limited and the
Municipality made as of March 1,2006, and 100% of the reasonable costs of preliminary
site plan review including traffic, engineering, design and legal costs resulting in the
approval of the Concept Plan for Development provided for in the Players-West
Diamond Principles. They will also indemnify the Municipality against 50% of the
reasonable legal and consulting costs and disbursements incurred by the Municipality in
preparing the Stevens Road Extension Agreement between Players-West Diamond,
Halloway and the Municipality and this Agreement.
5. Halloway will indemnify the Municipality against 50% of the reasonable legal and
consulting costs and disbursements incurred by it in preparing and registering on title the
Principles of Understanding between Halloway and the Municipality and between
Players-West Diamond, 1613881 and the Municipality made as of March 1, 2006, and
100% of the reasonable costs of preliminary site plan review including traffic,
engineering, design and legal costs resulting in the approval of the Concept Plan for
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Development as provided in the Halloway Principles. It will also indemnify the
Municipality against 50% of the reasonable legal and consulting costs and disbursements
incurred by the Municipality in preparing the Stevens Road Extension Agreement
between Players-West Diamond, Halloway and the Municipality and this Agreement.
6. The payment of costs referred to in paragraphs 4 and 5 will be made within thirty (30)
days from the date the Municipality gives written notice requiring payment to Players-
West Diamond and Halloway, respectively.
Notice
7. If any notice or other document is required to be or may be given by the Municipality or
by any official of the Municipality to the Owners by this Agreement, or by an Owner to
the Municipality, such notice shall be transmitted by telefax, mailed by first class prepaid
post or delivered to:
The Owners:
Players-West Diamond:
c/o West Diamond Properties Inc.
30 Floral Parkway
Concord, ON L4K 4RI
Attention: Mr. Robert DeGasperis
and:
c/o Players Business Park Ltd.
1700 Langstaff Road
Suite 2003
Concord, ON L4K 3S3
Attention: Mr. Bruce Fischer
and:
Halloway:
Halloway Holdings Ltd.
177 Nonquon Road
20th Floor
Oshawa, ON LIG 3S2
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OR,
To the Municipality:
The Municipality of Clarington
40 Temperance Street
Bowmanville, ON LIC 3A6
Attention: Director of Planning Services
Fax: 905-623-0830
or such other telefax number or address of which either party has notified the other party
in writing. Any such notice telefaxed or mailed or delivered shall be deemed good and
sufficient notice under the terms of this Agreement and iftelefaxed or delivered prior to
4:30 p.m. on any business day (excluding Saturdays, Sundays and statutory holidays)
shall be deemed to have been received at the time of delivery or transmission and if
mailed by pre-paid registered mail, it shall be deemed to have been received on the third
business day (excluding Saturdays, Sundays and statutory holidays) following the
mailing thereof. Notwithstanding the foregoing, in the event that it may be reasonably
anticipated that due to Force Majeure any notice will not be received within the time limit
set out above, then such notice shall be sent by an alternate means of transportation which
may reasonably be anticipated will cause the notice to be received reasonably
expeditiously by the addressee.
Authority of Municipality
8. Players, West Diamond and Halloway acknowledge and agree that the Municipality has
authority to enter into this Agreement, that every provision hereof is authorized by the
law and fully enforceable by the parties, and that this Agreement is executed by the
Municipality in reliance on the acknowledgement and agreement of Players, West
Diamond and Halloway as aforesaid.
Time of the Essence
9. Time is of the essence of this Agreement.
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IN WITNESS WHEREOF the Parties hereto have hereunto have set their hands and
seals the day and year first above written and the Parties hereto have hereunto affixed their
corporate seals by the hands of their proper officers duly authorized in that behalf.
SIGNED, SEALED AND
DELIVERED
In the presence of:
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THE CORPORATION OF THE
MUNICI OF CLARINGTON
Patti
WEST DIAMOND
TIES INC.
Name:
Name:
Title:
Title:
S PARK LTD.
Title:
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Name:
HALLOW A Y HOLDINGSv~ L " Ie J ( ~'f) /( ~
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