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HomeMy WebLinkAbout93-137 THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON BY-LAW 93-137 being a by-law to authorize the execution of an agreement between the Corporation of the Municipality of Clarington, Markborough Properties Inc. , and West Bowmanville Developments 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 Markborough Properties, West Bowmanville Developments Ltd. , and the Municipality. i 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 r DUTY 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 MARKBOROUGH PROPERTIES INC. and WEST BOWMANVILLE DEVELOPMENTS LTD. (hereinafter collectively 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 j Area based on population growth; and J (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"); t - 2 - E. The Municipality has undertaken a study with respect to the land contained within the area affected by Official Plan Amendment No. 40 ("OPA No. 40") of the Official Plan of the Municipality (the "Bowmanville Main Central Area Study") at a cost of which was borne on a proportionate basis by certain owners of land within such area excluding Markborough Properties Inc. At present, the Municipality is undertaking Phase 3 of the Bowmanville Main Central Area Study for the preparation of an Urban Design Plan which is contemplated by OPA No. 40 as well as a Secondary Plan for the lands to which the Bowmanville Main Central Area Study applies (the "Urban Design Plan"); F. The Owner is the registered owner of the lands described in Schedule"A"hereto (the "Owner's Lands"); and G. By letter dated July 23, 1993 from the Owner to the Mayor and Members of Council of the Municipality the Owner agreed to pay its proportionate share of 83.33% (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 (the "Owner's Letter"). 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 $20,833.33. 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 $20,833.33 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 DEV88-99 and DEV90-78 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$208,333.33. 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 - 3 - month immediately preceding the previous Contribution. For the purposes of this 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 $312,500.00 and containing terms satisfactory to the Municipality's Treasurer and not containing any reference to this Agreement. 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. The Letter of Credit shall not contain any reference to the Owner's Letter, this Agreement or the circumstances in which a draw upon the Letter of Credit may be made. 6. The Owner shall indemnify and hold harmless the Municipality from and against any and all claims, actions, demands and expenses (including reasonable legal fees) incurred by the Municipality and made by any party for the return of any amounts paid by such party (the "Claimant") towards the cost of the Bowmanville Main Central Area Study provided that the Municipality completes the Bowmanville Main Central Area study in accordance with the terms of reference now established for such study. The Owner shall-have the right to reimburse the Claimant or to defend, at its own expense and by counsel of its own choosing, and shall defend, against any claim to which the aforesaid indemnity would apply and the Municipality's right to defend or settle any such claim shall be limited to those cases where the Owner has failed or refused to reimburse the Claimant or to defend. 7. The Owner shall indemnify the Municipality for all reasonable legal and professional consulting fees incurred by the Municipality in supporting the approval of Official Plan Amendment No. 40 and Official Plan No. 255 ("OPA No. 255") to the Official Plan of the Regional Municipality of Durham and any appropriate zoning by-law (the "By-law") enacted by the Council of the Municipality and any approval of an appropriate site plan(the "Site Plan Approval") to implement Resolution#C-442-93 of the Municipality's Council made June 14, 1993 at or before the Ontario Municipal Board. All such amounts incurred by the Municipality shall be paid by the Owner forthwith after delivery to the Owner of copies of accounts rendered to the Municipality in respect of such consulting fees. The Owner acknowledges and agrees that until the completion and adoption of the Council of the Municipality of the Urban Design Study, the Council of the Municipality cannot enact the By-law or grant the Site Plan Approval nor may the Municipality support the consideration of the By-law or the Site Plan Approval at the Ontario Municipal Board Hearing scheduled to commence on January 10, 1994 (the "Hearing"). 8. If: a. OPA No. 40 and OPA No. 255 are not finally approved at the Hearing; or b. the Zoning By-law does not come into force after the Hearing; or - 4 - 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 DEV-88-99 and DEV90-78 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. 9. 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 1 Dundas Street West, Suite 2800, Toronto, Ontario, M5G 2J2. 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. 10. 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. 11. 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. 12. 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. 13. 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. 14. This Agreement shall enure to the benefit of and be binding on the parties hereto and their respective successors and assigns. , R - ✓ 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: Patti Barvi MARKB OPER IES INC. By: Name: Title: c/s And By: Name: Title: WEST BO LLE DEVELOPMENTS LTD. By: Name: W;%, t 13"%2A Title: ,re&-AP,-4 c/s And By: Name: Title: C:\wp5\data\town-new\markborough\agree-op.#3