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HomeMy WebLinkAbout93-136 THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON BY-LAW 93- 136 Being a By-Law to authorize the execution of an Agreement between the Corporation of the Municipality of Clarington and Willsonia Industries Ltd. 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 Agreement between Willsonia Industries Ltd. and the Municipality. 2 . THAT the agreement attached hereto as Schedule "A" forms part of this By-law. By-law read a first and second time this 13th day of September 1993. By-law read a third time and finally passed this 13th day of September 1993. Mayor Deputy Clerk AGREEMENT made as of this 31st day of August, 1993. BETWEEN: THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON (hereinafter called the "Municipality") OF THE FIRST PART - and - WILLSONIA INDUSTRIES LTD. (hereinafter called the "Owner") OF THE SECOND PART WHEREAS: A. The Municipality has received the Phase II: Development Options Report for the Main Central Area of Bowmanville prepared by Berridge Lewingberg Greenberg Ltd.; B. By its resolutions of June 14, 1993 and July 26, 1993 (the "Resolutions"), the Council of the Municipality has endorsed certain principles respecting the Bowmanville Main Central Area including: (i) the recognition of Bowmanville and its Main Central Area as a regional Centre for the purposes of the Official Plan for the Regional Municipality of Durham; (ii) the phasing of new retail development in the Bowmanville West Main Central Area based on population growth; and (iii) the development of the Owner's Lands more particularly described in Schedule A hereto in a shopping centre plaza format; C. It is the intention of the Municipality to undertake a marketing and renewal study (the "BBIA Study") for the Bowmanville Business Improvement Area (the "BBIA!'); D. The Council of the Municipality presently is determining whether to implement certain recommendations regarding physical improvements to the BBIA including but not limited to providing additional offstreet parking and streetscape improvements as set out in the Community Assist for an Urban Study Effort report for Bowmanville dated September, 1991 (the "CAUSE Recommendations"); E. The Owner is the registered owner of the lands described in Schedule"A"hereto (the "Owner's Lands"); - 2 - F. The Owner has made application, DEV88-54 to the Municipality in respect of the Owner's Lands and may make further applications to the Municipality and/or the Regional Municipality of Durham for (i) amendments to the Official Plans of the Municipality and of the Regional Municipality of Durham (the "OPA Amendments"); (ii) an amendment of the Municipality's zoning by-law(the"Zoning Amendment"); and (iii) site plan approval (the "Site Plan Approval') all generally consistent with application DEV88-54; and G. The Owner has agreed to pay its proportionate share of 16.67% (the 'Proportionate Share")of the cost of the BBIA Study to a maximum of$25,000.00, the Proportionate Share of the cost of the implementation of certain CAUSE Recommendations being the amount of $250,000.00 and contributions for the purposes of marketing and promotion of the BBIA as set out above. NOW THEREFORE WITNESSETH that in consideration of the mutual covenants contained herein and the sum of TWO ($2.00) DOLLARS of lawful money of Canada now paid by each party to the other (the receipt and sufficiency of which is hereby acknowledged), the parties agree as follows: 1. The Owner shall pay to the Municipality on or before the Occupancy Date (as hereinafter defined) its Proportionate Share of the cost of the BBIA Study to a maximum of $4,166.67. The Municipality shall consult the Owner about the terms of reference of the BBIA Study, however, the final decision as to the terms of reference and the selection of the consultant to undertake the BBIA Study shall be made in the sole and absolute discretion of the Municipality. If the cost of the BBIA Study exceeds $25,000.00 the Municipality is free to undertake it in its discretion; however, costs in excess of $25,000.00 shall be borne entirely by the Municipality. If the consultant to undertake the study is not retained by the Municipality on or before the Occupancy Date, then the Owner shall pay to the Municipality on the Occupancy Date the amount of $4,166.67 as a contribution to the BBIA for the purposes of marketing and promotion of the BBIA. 2. On or prior to the issuance of a building permit for the development of a shopping centre generally consistent with application DEV88-54 as revised from time to time on the Owner's Lands, the Owner shall pay to the Municipality its Proportionate Share of the cost of implementation of the CAUSE Recommendations being the amount of $41,666.67. Such funds are to be expended by the Municipality for the purpose of implementation of the CAUSE Recommendations. 3. On the day in which a bona fide tenant occupies a part or all of a building within the Owner's Lands (the "Occupancy Date") the Owner shall pay to the Municipality the Owner's Proportionate Share of the sum of $10,000 for the purposes of marketing and promotion of the BBIA (the "Contribution"). On each anniversary of the Occupancy Date and continuing until and including the ninth anniversary of the Occupancy Date, the Owner shall make a further Contribution to the Municipality equal to the amount obtained by multiplying the Contribution for the previous year by a fraction which has as its numerator the CPI for the month immediately preceding the next required Contribution and as its denominator the CPI for the month immediately preceding the previous Contribution. For the purposes of this J - 3 - paragraph "CPI" means the Consumer Price Index (all items for regional cities) for the Municipality of Metropolitan Toronto (or any index published in substitution for the Consumer Price Index or any other replacement index reasonably designated by the Municipality if it is no longer published) published by Statistics Canada (or any other successor thereof or any other governmental agency, including a provincial agency). 4. The Owner undertakes to coordinate marketing efforts and special events with the BBIA in order to cross-support the business areas of both the BBIA and the Owner's Lands. 5. On or before August 31, 1993 the Owner shall deliver to the Municipality an unconditional and irrevocable letter of credit (the"Letter of Credit")issued by a bank listed in Schedule 1 of the Bank Act in the minimum amount of $62,500.00 and containing terms satisfactory to the Municipality's Treasurer and not containing any reference to this Agreement or the circumstances in which a draw upon the Letter of Credit may be made. If the Owner is in default of a payment required by this Agreement, then the Treasurer of the Municipality may, from time to time, without notice to the Owner, present such letter of credit to the issuing bank for payment provided that the amount requested by the Treasurer of the Municipality from the issuing bank shall not exceed the amount of the payment then in default. 6. If. a. the Official Plan Amendments are not finally approved at the Ontario Municipal Board Hearing scheduled to commence on January 10, 1994 (the "Hearing"); or b. the Zoning Amendment does not come into force after the Hearing; or C. the Site Plan Approval is not given in final form after the Hearing; as any of the foregoing may be amended or modified (1) consistent with the Resolutions or (2) application DEV88-54 as revised from time to time, or (3) with the written approval of the Owner then the obligation of the Owner to make the payments required by paragraphs 1, 2 and 3 of this Agreement shall be null and void and the Letter of Credit shall be returned to the Owner. 7. Any notice, request, communication or demand under this Agreement shall be in writing and shall be considered properly delivered when given or served personally or by registered mail to the Municipality at 40 Temperance Street, Bowmanville, Ontario L1C 3A6 Attention: Director of Planning,, and Development, and to the Owner at Willsonia Industries Ltd., P.O. Box 488, 140 Bond St. West, Oshawa, Ontario, UH 7L8. Such notice, request or demand shall be deemed to have been delivered on the date it is delivered if given or served personally or on the third day following mailing, if it is mailed. If at any time notice is delivered by mail and there is any cessation(whether anticipated or existing) of mail service affecting the delivery of such notice, the notice shall not be deemed to have been delivered until five (5) business days after the date that normal service is restored. 8. The Owner acknowledges and agrees that the Municipality has authority to enter into this Agreement, that every provision hereof is authorized by the law and is fully enforceable by the parties and that this Agreement is made by the Municipality in reliance on the acknowledgement and agreement of the Owner as aforesaid. 9. This Agreement shall be governed by and interpreted in accordance with the laws of the Province of Ontario and the parties attorn to the jurisdiction of the courts of the Province of Ontario in order to enforce this Agreement. - 4 - 10. If any term, covenant or condition of this Agreement to any extent is held invalid or unenforceable, the remainder of this Agreement shall not be affected thereby and each term, covenant and condition of this Agreement shall be separately valid and enforceable to the fullest extent permitted by law. 11. This Agreement may be executed in several counterparts, each of which shall be deemed to be an original, and all counterparts shall constitute one and the same instrument. This Agreement shall not be binding and in effect until at least one counterpart, duly executed by the Municipality and the Owner, has been delivered to each party hereto. 12. This Agreement shall enure to the benefit of and be binding on the parties hereto and their respective successors and assigns. IN WITNESS WHEREOF the parties hereto have hereunto affixed their corporate seals by the hands of the proper officers duly authorized in that behalf the day and year first above written. THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON By: Diane Harare - Mayor , c/s And By: Marie fig t'. ht, Deputy Clerk WILLSO IND STRIES LTD. By me: G-S. W A6a, Title: Prt$► c/s And By: Name: Title: C:\wp5\data\town-new\markborough\agree-op.#4 ,a AGREEMENT made as of this 31st day of August, 1993. BETWEEN: THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON (hereinafter called the "Municipality") OF THE FIRST PART - and - WILLSONIA INDUSTRIES LTD. (hereinafter called the "Owner") OF THE SECOND PART WHEREAS: A. The Municipality has received the Phase II: Development Options Report for the Main Central Area of Bowmanville prepared by Berridge Lewingberg Greenberg Ltd.; B. By its resolutions of June 14, 1993 and July 26, 1993 (the "Resolutions"), the Council of the Municipality has endorsed certain principles respecting the Bowmanville Main Central Area including: (i) the recognition of Bowmanville and its Main Central Area as a regional Centre for the purposes of the Official Plan for the Regional Municipality of Durham; (ii) the phasing of new retail development in the Bowmanville West Main Central Area based on population growth; and (iii) the development of the Owner's Lands more particularly described in Schedule A hereto in a shopping centre plaza format; C. It is the intention of the Municipality to undertake a marketing and renewal study (the "BBIA Study") for the Bowmanville Business Improvement Area (the "BBIA'); D. The Council of the Municipality presently is determining whether to implement certain recommendations regarding physical improvements to the BBIA including but not limited to providing additional offstreet parking and streetscape improvements as set out in the Community Assist for an Urban Study Effort report for Bowmanville dated September, 1991 (the "CAUSE Recommendations"); E. The Owner is the registered owner of the lands described in Schedule"A"hereto (the "Owner's Lands"); - 2 - F. The Owner has made application, DEV88-54 to the Municipality in respect of the Owner's Lands and may make further applications to the Municipality and/or the Regional Municipality of Durham for (i) amendments to the Official Plans of the Municipality and of the Regional Municipality of Durham (the "OPA Amendments"); (ii) an amendment of the Municipality's zoning by-law(the"Zoning Amendment"); and (iii) site plan approval (the "Site Plan Approval") all generally consistent with application DEV88-54; and G. The Owner has agreed to pay its proportionate share of 16.67% (the "Proportionate Share")of the cost of the BBIA Study to a maximum of$25,000.00, the Proportionate Share of the cost of the implementation of certain CAUSE Recommendations being the amount of $250,000.00 and contributions for the purposes of marketing and promotion of the BBIA as set out above. NOW THEREFORE WITNESSETH that in consideration of the mutual covenants contained herein and the sum of TWO ($2.00) DOLLARS of lawful money of Canada now paid by each party to the other (the receipt and sufficiency of which is hereby acknowledged), the parties agree as follows: 1. The Owner shall pay to the Municipality on or before the Occupancy Date (as hereinafter defined) its Proportionate Share of the cost of the BBIA Study to a maximum of $4,166.67. The Municipality shall consult the Owner about the terms of reference of the BBIA Study, however, the final decision as to the terms of reference and the selection of the consultant to undertake the BBIA Study shall be made in the sole and absolute discretion of the Municipality. If the cost of the BBIA Study exceeds $25,000.00 the Municipality is free to undertake it in its discretion; however, costs in excess of $25,000.00 shall be borne entirely by the Municipality. If the consultant to undertake the study is not retained by the Municipality on or before the Occupancy Date, then the Owner shall pay to the Municipality on the Occupancy Date the amount of $4,166.67 as a contribution to the BBIA for the purposes of marketing and promotion of the BBIA. 2. On or prior to the issuance of a building permit for the development of a shopping centre generally consistent with application DEV88-54 as revised from time to time on the Owner's Lands, the Owner shall pay to the Municipality its Proportionate Share of the cost of implementation of the CAUSE Recommendations being the amount of $41,666.67. Such funds are to be expended by the Municipality for the purpose of implementation of the CAUSE Recommendations. 3. On the day in which a bona fide tenant occupies a part or all of a building within the Owner's Lands (the "Occupancy Date") the Owner shall pay to the Municipality the Owner's Proportionate Share of the sum of $10,000 for the purposes of marketing and promotion of the BBIA (the "Contribution"). On each anniversary of the Occupancy Date and continuing until and including the ninth anniversary of the Occupancy Date, the Owner shall make a further Contribution to the Municipality equal to the amount obtained by multiplying the Contribution for the previous year by a fraction which has as its numerator the CPI for the month immediately preceding the next required Contribution and as its denominator the CPI for the month immediately preceding the previous Contribution. For the purposes of this t J - 3 - paragraph "CPI" means the Consumer Price Index (all items for regional cities) for the Municipality of Metropolitan Toronto (or any index published in substitution for the Consumer Price Index or any other replacement index reasonably designated by the Municipality if it is no longer published) published by Statistics Canada (or any other successor thereof or any other governmental agency, including a provincial agency). 4. The Owner undertakes to coordinate marketing efforts and special events with the BBIA in order to cross-support the business areas of both the BBIA and the Owner's Lands. 5. On or before August 31, 1993 the Owner shall deliver to the Municipality an unconditional and irrevocable letter of credit (the"Letter of Credit")issued by a bank listed in Schedule 1 of the Bank Act in the minimum amount of $62,500.00 and containing terms satisfactory to the Municipality's Treasurer and not containing any reference to this Agreement or the circumstances in which a draw upon the Letter of Credit may be made. If the Owner is in default of a payment required by this Agreement, then the Treasurer of the Municipality may, from time to time, without notice to the Owner, present such letter of credit to the issuing bank for payment provided that the amount requested by the Treasurer of the Municipality from the issuing bank shall not exceed the amount of the payment then in default. 6. If: a. the Official Plan Amendments are not finally approved at the Ontario Municipal Board Hearing scheduled to commence on January 10, 1994 (the "Hearing"); or b. the Zoning Amendment does not come into force after the Hearing; or C. the Site Plan Approval is not given in final form after the Hearing; as any of the foregoing may be amended or modified (1) consistent with the Resolutions or (2) application DEV88-54 as revised from time to time, or (3) with the written approval of the Owner then the obligation of the Owner to make the payments required by paragraphs 1, 2 and 3 of this Agreement shall be null and void and the Letter of Credit shall be returned to the Owner. 7. Any notice, request, communication or demand under this Agreement shall be in writing and shall be considered properly delivered when given or served personally or by registered mail to the Municipality at 40 Temperance Street, Bowmanville, Ontario LIC 3A6 Attention: Director of Planning and Development, and to the Owner at Willsonia Industries Ltd., P.O. Box 488, 140 Bond St. West, Oshawa, Ontario, UH 7L8. Such notice, request or demand shall be deemed to have been delivered on the date it is delivered if given or served personally or on the third day following mailing, if it is mailed. If at any time notice is delivered by mail and there is any cessation(whether anticipated or existing) of mail service affecting the delivery of such notice, the notice shall not be deemed to have been delivered until five (5) business days after the date that normal service is restored. 8. The Owner acknowledges and agrees that the Municipality has authority to enter into this Agreement, that every provision hereof is authorized by the law and is fully enforceable by the parties and that this Agreement is made by the Municipality in reliance on the acknowledgement and agreement of the Owner as aforesaid. 9. This Agreement shall be governed by and interpreted in accordance with the laws of the Province of Ontario and the parties attorn to the jurisdiction of the courts of the Province of Ontario in order to enforce this Agreement. - 4 - 10. If any term, covenant or condition of this Agreement to any extent is held invalid or unenforceable, the remainder of this Agreement shall not be affected thereby and each term, covenant and condition of this Agreement shall be separately valid and enforceable to the fullest extent permitted by law. 11. This Agreement may be executed in several counterparts, each of which shall be deemed to be an original, and all counterparts shall constitute one and the same instrument. This Agreement shall not be binding and in effect until at least one counterpart, duly executed by the Municipality and the Owner, has been delivered to each party hereto. 12. This Agreement shall enure to the benefit of and be binding on the parties hereto and their respective successors and assigns. IN WITNESS WHEREOF the parties hereto have hereunto affixed their corporate seals by the hands of the proper officers duly authorized in that behalf the day and year first above written. THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON By: Diane Hamre - Mayor c/s And By: ft: n__:_ .•i .a rie P ght — Depu C _ : WILLSO IN STRIES LTD. By. Na e:(Zls Title: Tres.dun) c/s And By: Name: Title: C:\wp5\data\town-new\markborough\agree-op.#4 t r I 1• i a S v " t THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON BY-LAW 93- 136 Being a By-Law to authorize the execution of an Agreement between the Corporation of the Municipality of Clarington and Willsonia Industries Ltd. 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 Agreement between Willsonia Industries Ltd. and the Municipality. 2. THAT the agreement attached hereto as Schedule "A" forms part of this By-law. By-law read 'a first and second time this 13th day of September 1993. By-law read a third time and finally passed this 13th day of September 1993. CERT 0�T UE COPY Mayor r ; , I - RIE ` I opal Clerk Deputy Clerk - I i I I I r AGREEMENT made as of his 31st day of August, 1993. BETWEEN: I THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON (hereinafter called the "Municipality") OF THE FIRST PART i - and i `WILLSONIA INDUSTRIES LTD. (hereinafter called the "Owner") OF THE SECOND PART WHEREAS: A. The Municipality has received the Phase II: Development Options Report for the Main Central Area of Bowmanville prepared by Berridge Lewingberg Greenberg Ltd.; B. By its resolutions of June 14, 1993 and July 26, 1993 (the "Resolutions"), the Council of the Municipality has endorsed certain principles respecting the Bowmanville Main Central Area including: (i) the recognition of Bowmanville and its Main Central Area as a regional Centre for the{purposes of the Official Plan for the Regional Municipality of Durham; (ii) the phasing of new retail development in the Bowmanville West Main Central Area based on population growth; and (iii) the development of the Owner's Lands more particularly described in Schedule A hereto in a shopping centre plaza format; C. It is the intention of the Municipality to undertake a marketing and renewal study (the "BBIA Study") for the Bowmanville Business Improvement Area (the "BBIA"); D. The Council of the Municipality presently is determining whether to implement certain recommendations regarding physical improvements to the BBIA including but not limited to providing additional offstreet parking and streetscape improvements as set out in the Community Assist for an Urban Study Effort report for Bowmanville dated September, 1991 (the "CAUSE Recommendations"); E. The Owner is the registered owner of the lands described in Schedule"A"hereto (the "Owner's Lands"); i l t i 2 F. The Owner has made application, DEV88-54 to the Municipality in respect of the Owner's Lands and may make further applications to the Municipality and/or the Regional Municipality of Durham for (i) amendments to the Official Plans of the Municipality and of the Regional Municipality of Durham (the "OPA Amendments"); (ii) an amendment of the Municipality's zoning by-law(the"Zoning Amendment"); and (iii) site plan approval (the "Site Plan Approval') all generally consistent with application DEV88-54; and G. The Owner has agreed to pay its proportionate share of 16.67% (the 'Proportionate Share")of the cost of;the BBIA Study to a maximum of$25,000.00, the Proportionate Share of the cost of the implementation of certain CAUSE Recommendations being the amount of $250,000.00 and contributions for the purposes of marketing and promotion of the BBIIA as set out above. i NOW THERLFORE WITNESSETH that in consideration of the mutual covenants contained herein and the sum of TWO ($2.00) DOLLARS of lawful money of Canada now paid by each party to the other (the receipt and sufficiency of which is hereby acknowledged), the parties agree as follows: 1. The Owner shall pay to the Municipality on or before the Occupancy Date (as hereinafter defined) its Proportionate Share of the cost of the BBIA Study to a maximum of $4,166.67. The Municipality shall consult the Owner about the terms of reference of the BBIA Study, however, the final decision as to the terms of reference and the selection of the consultant to undertake the BBIA Study shall be made in the sole and absolute discretion of the Municipality. If the cost of the BBIA Study exceeds $25,000.00 the Municipality is free to undertake it in its discretion; however, costs in excess of $25,000.00 shall be borne entirely by the Municipality. If the consultant to undertake the study is not retained by the Municipality on or before the Occupancy Date, then the Owner shall pay to the Municipality on the Occupancy Date the amount of $4,166.67 as a contribution to the BBIA for the purposes of marketing and promotion of the BBIA. 2. On or prior to the issuance of a building permit for the development of a shopping centre generally consistent with application DEV88-54 as revised from time to time on the Owner's Lands, the Owner shall pay to the Municipality its Proportionate Share of the cost of implementation of the CAUSE Recommendations being the amount of $41,666.67. Such funds are to be expended by the Municipality for the purpose of implementation of the CAUSE Recommendations. 3. On the day in which a bona fide tenant occupies a part or all of a building within the Owner's Lands (the "Occupancy Date") the Owner shall pay to the Municipality the Owner's Proportionate Share of the sum of $10,000 for the purposes of marketing and promotion of the BBIA (the "Contribution"). On each anniversary of the Occupancy Date and; continuing until and including the ninth anniversary of the Occupancy Date, the iOwner shall make a further Contribution to the Municipality equal to the amount dbtained by multiplying the Contribution for the previous year by a fraction which has as its numerator the CPI for the month immediately preceding the next required Contribution and as its denominator the CPI for the month immediately preceding the previous Contribution. For the Purposes of this 3 - paragraph "CPI" means the Consumer Price Index (all items for regional cities) for the Municipality of Metropolitan Toronto (or any index published in substitution for the Consumer Price Index or any other replacement index reasonably designated by the Municipality if it is no longer published) published by Statistics Canada (or any other successor thereof or any other governmental agency, including a provincial agency). 4. The Owner undertakes to coordinate marketing efforts and special events with the BBIA in order to cross-support the business areas of both the BBIA and the Owner's Lands. 5. On or before August 31, 1993 the Owner shall deliver to the Municipality an unconditional and irrevocable letter of credit(the"Letter of Credit")issued by a bank listed in Schedule 1'of the Bank Act in the minimum amount of $62,500.00 and containing terms satisfactory to the Municipality's Treasurer and not containing any reference to this Agreement or the circumstances in which a draw upon the Letter of Credit may be made. If the Owner is in default of a payment required by this Agreement, then the Treasurer of the Municipality may, from time to time, without notice to the Owner, present such letter of credit to the issuing bank for payment provided that the amount requested by the Treasurer of the Municipality from the issuing bank shall not exceed the amount of the payment then in default. 6. If.. a. the Official Plan Amendments are not finally approved at the Ontario Municipal Board Hearing scheduled to commence on January 10, 1994 (the "Hearing"); or b. the Zoning Amendment does not come into force after the Hearing; or C. the Site Plan Approval is not given in final form after the Hearing; as any of the foregoing may be amended or modified (1) consistent with the Resolutions or (2) application DEV88-54 as revised from time to time, or (3) with the written approval of the Owner then the obligation of the Owner to make the payments required by paragraphs 1, 2 and 3 of this Agreement shall be null and void and the Letter of Credit shall be returned to the Owner. 7. Any notice, request, communication or demand under this Agreement shall be in writing and shall be considered properly delivered when given or served personally or by registered mail to the Municipality at 40 Temperance Street, Bowmanville, Ontario L1C 3A6 Attention: Director of Planning and Development, and to the Owner at Willsonia Industries Ltd., P.O. Box 488, 140 Bond St. West, Oshawa, Ontario, L1H 7L8. Such notice, request or demand shall be deemed to have been delivered on the date!it is delivered if given or served personally or on the third day following mailing, if it is mailed. If at any time notice is delivered by mail and there is any cessation(whether anticipated or existing) of mail service affecting the delivery of such notice, the notice shall not be deemed to have been delivered until five (5) business days after the date that normal service is restored. 8. The Owner acknowledges and agrees that the Municipality has authority to enter into this Agreement, that!every provision hereof is authorized by the law and is fully enforceable by the parties and that this Agreement is made by the Municipality in reliance on the acknowledgement and agreement of the Owner as aforesaid. 9. This Agreement shall'be governed by and interpreted in accordance with the laws of the Province of Ontario and the parties attorn to the jurisdiction of the courts of the Province of Ontario in order to enforce this Agreement. - 4 - 10. If any term, covenant or condition of this Agreement to any extent is held invalid or unenforceable, the remainder of this Agreement shall not be affected thereby and each term, covenant and condition of this Agreement shall be separately valid and enforceable to the fullest extent permitted by law. 11. This Agreement may be executed in several counterparts, each of which shall be deemed to be an original, and all counterparts shall constitute one and the same instrument. This Agreement shall not be binding and in effect until at least one counterpart, duly executed by the Municipality and the Owner, has been delivered to each party hereto, 12. This Agreement shall enure to the benefit of and be binding on the parties hereto and their respective successors and assigns. i IN WITNESS WHE"OF the parties hereto have hereunto affixed their corporate seals by the hands of the proper officers duly authorized in that behalf the day and year first above written. THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON By: Diane Hamre - Mayor ' c/s And By: Marie P. fight, Deputy Clerk WLS IN D STRIES LTD. e: Q&am Title: c/s And By: Name: Title: C:\wp5\data\town-new\markborough\agree-op.#4 AGREEMENT made as of t�-s 31st day of August, 1993. BETWEEN: THE CORPORATION OF THE MUNICIPALITY j OF CLARINGTON (heereinafter called the "Municipality") OF THE FIRST PART - and - i WILLSONIA INDUSTRIES LTD. (hereinafter called the "Owner") OF THE SECOND PART WHEREAS: A. The Municipality has received the Phase II: Development Options Report for the Main Central Area of Bowmanville prepared by Berridge Lewingberg Greenberg Ltd.; B. By itF resolutions of rune 14, 1993 and July 26, 1993 (the 'Resolutions"), the Council of the Municipality has endorsed certain principles respecting the Bowmanville Main Central Area including: (i) the recognition of Bowmanville and its Main Central Area as a regional Centre for thepurposes of the Official Plan for the Regional Municipality of Durham; (ii) the phasing of pew retail development in the Bowmanville West Main Central Area based on population growth; and i (iii) the development of the Owner's Lands more particularly described in Schedule A hereto in a shopping centre plaza format; C. It is the intention of the Municipality to undertake a marketing and renewal study (the "BBIA Study") for the Bowmanville Business Improvement Area (the "BBIA"); D. The Council of the Municipality presently is determining whether to implement certain recommendations regarding physical improvements to the BBIA including but not limited to providing additional offstreet parking and streetscape improvements as set out in the Community Assist for an Urban Study Effort report for Bowmanville dated September, 1991 (the "CAUSE Recommendations"); E. The Owner is the registered.owner of the lands described in Schedule"A"hereto (the "Owner's Lands"); 2 F. The Owner has made application, DEV88-54 to the Municipality in respect of the Owner's Lands and may make further applications to the Municipality and/or the Regional Municipality of Durham for (i) amendments to the Official Plans of the Municipality and of the Regional Municipality of Durham (the "OPA Amendments"); (ii) an amendment of the Municipality's zoning by-law(the"Zoning Amendment"); and (iii) site plan approval (the "Site Plan Approval") all generally consistent with application DEV88-54; and G. The Owner has agree Id to pay its proportionate share of 16.67% (the 'Proportionate Share")of the cost of the BBIA Study to a maximum of$25,000.00, the Proportionate Share of the cost of the implementation of certain CAUSE Recommendations being the amount of $250,000.00 and contributions for the purposes of marketing and promotion of the BBIA as set out above. NOW THEREFORE WITNESSETH that in consideration of the mutual covenants contained herein and the sum of TWO ($2.00) DOLLARS of lawful money of Canada now paid by each party to the other (the receipt and sufficiency of which is hereby acknowledged), the parties agree as follows: i 1. The Owner shall pay to the Municipality on or before the Occupancy Date (as hereinafter defined) its Proportionate Share of the cost of the BBIA Study to a maximum of $4,166.67. The Municipality shall consult the Owner about the terms of reference of the BBIA Study, however, the final decision as to the terms of reference and the selection of the consultant to undertake the BBIA Study shall be made in the sole and absolute discretion of the Municipality. If the cost of the BBIA Study exceeds $25,OOp.00 the Municipality is free to undertake it in its discretion; however, costs in excess of $25,000.00 shall be borne entirely by the Municipality. If the consultant to undertake the study is not retained by the Municipality on or before the Occupancy Date, then the Owner shall pay to the Municipality on the Occupancy Date the amount of $4,166.67 as a contribution to the BBIA for the purposes of marketing and promotion of the BBIA. 2. On or prior to the issuance of a building permit for the development of a shopping centre generally consistent with application DEV88-54 as revised from time to time on the Owner's Lands, the Owner shall pay to the Municipality its Proportionate Share of the cost of!implementation of the CAUSE Recommendations being the amount-of $41,666.67. Such funds are to be expended by the Municipality for the purpose of implementation of the CAUSE Recommendations. 3. On tl:e day in which a bona fide tenant occupies a part or all of a buildin g within the Owner's Lands (the "Occupancy Date") the Owner shall pay to the Municipality the Owner's Proportionate Share of the sum of $10,000 for the purposes of marketing and promotion of the BBIA (the "Contribution"). On each anniversary of the Occupancy Date and continuing until and including the ninth anniversary of the Occupancy Date, the Owner shall make a further Contribution to the Municipality equal to the amount obtained by multiplying the Contribution for the previous year by a fraction which has as its numerator the CPI for the month immediately preceding the next r$quired Contribution and as its denominator the CPI for the month immediately preceding the previous Contribution. For the purposes of this i J , - 3 - paragraph "CPI" means the Consumer Price Index (all items for regional cities) for the Municipality of Metropolitan Toronto (or any index published in substitution for the Consumer Price Index or any other replacement index reasonably designated by the Municipality if it is no longer published) published by Statistics Canada (or any other successor thereof or any other governmental agency, including a provincial agency). 4. The Owner undertakes to coordinate marketing efforts and special events with the BBIA in order to cross-support the business areas of both the BBIA and the Owner's Lands. 5. On or before August 31, 1993 the Owner shall deliver to the Municipality an unconditional and irrevocable letter of credit (the"Letter of Credit")issued by a bank listed in Schedule 1 of the Bank Act in the minimum amount of $62,500.00 and containing terms satisfactory to the Municipality's Treasurer and not containing any reference to this Agreement or the circumstances in which a draw upon the Letter of Credit may be made. If the Owner is in default of a payment required by this Agreement, then the Treasurer of the Municipality may, from time to time, without notice to the Owner, present such letter of credit to the issuing bank for payment provided that the amount requested by the Treasurer of the Municipality from the issuing bank shall not exceed the amount of the payment then in default. 6. If: a. the Official Plan Amendments are not finally approved at the Ontario Municipal Board Hearing scheduled to commence on January 10, 1994 (the "Hearing"); or b. the Zoning Amendment does not come into force after the Hearing; or C. the Site Plan Approval is not given in final form after the Hearing; as any of the foregoing may be amended or modified (1) consistent with the Resolutions or (2) application DEV88-54 as revised from time to time, or (3) with the written approval iof the Owner then the obligation of the Owner to make the payments required by paragraphs 1, 2 and 3 of this Agreement shall be null and void and the Letter of Credit shall be returned to the Owner. 7. Any notice, request, communication or demand under this Agreement shall be in writing and shall be considered properly delivered when given or served personally or by registered mail to the Municipality at 40 Temperance Street, Bowmanville, Ontario L1C 3A6 Attention: Director of Planning and Development, and to the Owner at Willsonia Industries Ltd., P.O. Box 488, 140 Bond St. West, Oshawa, Ontario, L1H 7L8. Such notice, request or demand shall be deemed to have been delivered on the date'it is delivered if given or served personally or on the third day following mailing, if it is mailed. If at any time notice is delivered by mail and there is any cessation(whether anticipated or existing)of mail service affecting the delivery of such notice, the notice shall not be deemed to have been delivered until five (5) business days after the date that normal service is restored. 8. The Owner acknowledges and agrees that the Municipality has authority to enter into this Agreement, that every provision hereof is authorized by the law and is fully enforceable by the parties and that this Agreement is made by the Municipality in reliance on the acknowledgement and agreement of the Owner as aforesaid. 9. This Agreement shall be governed by and interpreted in accordance with the laws of the Province of Ontaiio and the parties attorn to the jurisdiction of the courts of the Province of Ontario in order to enforce this Agreement. . s w - 4 - 10. If any term, covenant or condition of this Agreement to any extent is held invalid or unenforceable, the remainder of this Agreement shall not be affected thereby and each term, covenant and condition of this Agreement shall be separately valid and enforceable to the fullest extent permitted by law. 11. This Agreement may be executed in several counterparts, each of which shall be deemed to be an original, and all counterparts shall constitute one and the same instrument. This Agreement shall not be binding and in effect until at least one counterpart, duly executed by the Municipality and the Owner, has been delivered to each party hereto. 12. This Agreement shall enure to the benefit of and be binding on the parties hereto and their respective successors and assigns. IN WITNESS WHEREOF the parties hereto have hereunto affixed their corporate seals by the hands of the proper officers duly authorized in that behalf the day and year first above written. THE CORPORATION OFTHE MUNICIPALITY OF CLARINGTON By: Diane Hamre - Mayor c/s And By: "...,.: rie P ght - Depu _.l. C _r WILLSO IN STRIES LTD. By: Title: Treb�o�n� c/s And By: Name: Title: i C:\wp5\data\town-new\markborough\agree-op.#4 I