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HomeMy WebLinkAbout91-42 AMENDED JJY '15-1.4 BY-LAW #........If.... THE CORPORATION OF THE TOWN OF NEWCASTLE BY-LAW 91-42 being a by-law to authorize the entering into of an agreement between Markborough Properties Inc., West Bowmanville Developments Limited and the Town of Newcastle WHEREAS the Council of the Town of Newcastle deems it expedient to enter into an agreement with Markborough Properties Inc., and West Bowmanville Developments Limited as per Resolution #C-635- 90, as amended by Resolution #C-636-90, passed on September 24, 1990; NOW THEREFORE THE COUNCIL OF THE TOWN OF NEWCASTLE ENACTS AS FOLLOWS: 1. THAT the Mayor and Clerk be authorized to execute on behalf of the Corporation of the Town of Newcastle, and seal with the Corporate Seal, an agreement between Markborough Properties Inc., West Bowmanville Developments Limited and the Corporation of the Town of Newcastle, made as of the 26th day of November 1990. By-law read a first and second time this 11th day of March 1991 By-law read a third time and finally passed this 11th day of March 1991 MAYOR ~ THIS AGREEMENT made as of this 26th day of November, 1990. BETWEEN: MARKBOROUGH PROPERTIES INC. and WEST BOWMANVILLE DEVELOPMENTS LTD. (hereinafter called the "Owners") OF mE FIRST PART - and - THE CORPORATION OF THE TOWN OF NEWCASTLE (hereinafter called the "Town") OF mE SECOND PART WHEREAS: a) The Owners own in fee simple certain lands (the "Lands") which comprise approximately 26.7 acres located at the south-easterly comer of Green Road and Highway No.2 in the Town of Newcastle; b) The Lands are more particularly described in Schedule "A" attached hereto; c) At its meeting on September 24, 1990, the Town Council passed Resolution #C-635-90 as amended by Resolution #C-636-90 (a consolidated copy of which is attached hereto as Schedule "B") by which Official Plan Amendment Application 88- 87/D IN (Revised) submitted by the Owners to permit the development of a shopping centre incorporating certain retail floor space (the "Development") was recommended to the Region of Durham for approval through an appropriate amendment to the Durham Regional Official Plan and the Town of Newcastle Official Plan (collectively called the "Proposed Official Plan Amendment") subject to certain conditions including the making of this Agreement, Rezoning Application DEV 88-89 (Revised) was approved, and the passing of the amending zoning by- - 2 - law ( the "Zoning Amendment") was deferred pending satisfaction of certain conditions relating thereto; d) The Town has paid for the cost of installing a water main (the "Service") to serve the Town's Recreational Centre located at the north-westerly comer of Regional Road No. 57 and Highway No.2 and the Service includes sufficient capacity to service additional development lands including the Development of the Lands; e) The Parties hereto have agreed that the Owners' fair share of the cost incurred by the Town of providing sufficient capacity in the Service to serve the Lands is THREE HUNDRED THOUSAND ($300,000.00) DOLLARS and have allocated this share of the cost to the Lands. The Parties have also agreed that the sum of lHREE HUNDRED THOUSAND ($3~,OOO.OO) ~~s will be paid by the Owners to the Town as set out in this Agreement; ~, r(J ~ NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the premises and the covenants hereinafter expressed and the sum of TWO DOLLARS ($2.00) of lawful money of Canada, now paid by each party to the other (the receipt whereof by each party is hereby acknowledged), the Parties hereto hereby covenant and agree to and with the other as follows: 1. The Owners' fair share of the costs incurred by the Town of providing sufficient capacity in the Service for the development of the Lands is nIREE HUNDRED THOUSAND ($300,000.00) DOLLARS payable as follows: a) The sum of ONE HUNDRED AND J:'frTY THOUSAND ($150.000.00) DOLLARS shall be paid by the Owners to the Town in cash or by certified cheque for the Town's use absolutely prior to the day on which the Council of the Regional Municipality of Durham (the "Regional Council ") adopts the Proposed Official Plan Amendment; and - 3 - b) The Owners shall pay to the Town the sum of ONE HUNDRED AND tl1"TY THOUSAND ($150,000.00) DOLlARS plus the "Escalated Amount" (as hereinafter defined) no later than the date of expiry of the ten (10) day period commencing on the "Date of Final Approval etft- of the Zoning Amendment" (as hereinafter defined). .. 2. Prior to the day on which the Regional Council adopts the Proposed Official Plan Amendment, the Owners shall deposit the "Letter of Credit" (as herein defined) with the Town's Treasurer. The Letter of Credit shall be drawn on a Canadian Chartered Bank incorporated under Schedule "A" of the Bank Act R.S.C. 1970 c. It shall be in the amount of ONE HUNDRED AND FIFI'Y THOUSAND ($150,000.00) DOllARS. It shall be unconditional and irrevocable, and have a term of at least one (1) year. It shall provide that it or a Renewal of it, as the case may be, is automatically renewed unless the Bank on which it is drawn has notified the Town in writing that the Bank will not renew the Letter of Credit, or the Renewal thereof currently in force, as the case may be, not less than thirty (30) days before the day on which it or the Renewal of it is to expire. In the event that the Town is notified that the Bank will not renew the Letter of Credit, or a Renewal thereof, as the case may be, the Town may require the Bank to pay the amount of the Letter of Credit or the Renewal of it to the Town, in which case the Town may deposit the amount received from the Bank in a reserve account which is interest bearing pending occurrence of the earlier to occur of the Date of Final Approval Day of the Zoning Amendment and the "Date of Unwinding of this Agreement" (as hereinafter defined), 3(a). In the event that the Date of Final Approval of the Zoning Amendment occurs and the Letter of Credit, or the Renewal thereof, as the case may be, remains outstanding, the Town shall return the Letter of Credit or the Renewal thereof, as the case may be, to the Own.ers undrawn upon and without deduction, forthwith after the day. on which the Owners pay the Town the sum of ONE HUNDRED AND tltTY THOUSAND ($150,000.00) DOLlARS together with the Escalated Amount in accordance with paragraph 1(b) hereof. - 4 - 3(b). In the event that the Letter of Credit, or the Renewal thereof, as the case may be, has been drawn upon by the Town, on the Date of Final Approval of the Zoning Amendment, the Town may appropriate the amount so drawn upon together with any interest that has accrued thereon to the Town's own use absolutely. The Town shall credit the amount so appropriated to the Owners' account in reduction of the sum of ONE HUNDRED AND l'frTY TIIOUSAND ($150,000.00) DOllARS plus the Escalated Amount which is required to be paid by the Owners to the Town pursuant to paragraph l(b) hereof and give the Owners notice of the amount of the credit and the amount of the deficiency, if any, between the credited amount and the amount required to be paid pursuant to paragraph l(b). Forthwith after such notice is given, the Owners shall pay the amount of any deficiency in cash or by certified cheque to the Town. 3(c) In the event that the Date of Unwinding of this Agreement occurs, if the Letter of Credit, or the Renewal thereof,as the case may be, has not been drawn upon the TOWIl,! ~ __.....~... /<r'I... , Letter of Credit or the Renewal thereof, then in effect, shall be ~ forthwith by 'dIeT to the Owners undrawn upon. In the event that the Date of Unwinding of this Agreement occurs and the Letter of Credit, or the Renewal thereof, as the case may be, has been drawn upon by the Town, the amount so drawn upon together with any interest, if any, which in fact has been earned by the Town thereon shall be paid forthwith by the Town to the Owners without deduction and the Town shall thereupon be released from any further liability to the Owners arising out of this Agreement or any payment made by the Owners pursuant to this Agreement. 3(d) For the avoidance of doubt, whether or not the Date of Unwinding of the Agreement occurs, the Town is not under any duty to the Owners to return the whole or any portion of the sum of money paid to the Town pursuant to paragraph lea) hereof, to the Owners. 4(a) For the purposes of this Agreement the term the "Date of Final Approval of the Zoning Amendment" means the first day upon which the Zoning Amendment actually and notwithstanding any deeming provisions contained in the Planning Act, 1983 S.O. 1983 c.l first comes into force and effect as a result of one of the following events occurring: - 5 - i) Where neither a notice of appeal is filed by any person in respect of one or more of the provisions of the Zoning Amendment nor an application to Court is made in which the validity of the Zoning Amendment is called into question, the expiry of the fifteen (15) day period following the day on which the Proposed Official Plan Amendment is approved pursuant to the Planning Act, 1983. ii) Where a notice of appeal to the Ontario Municipal Board is filed in accordance with the Planning Act, 1983, but an application to Court is not made in which the validity of the Zoning Amendment is called into question, the later to occur of the date of expiry of the thirty (30) day period following the day on which the Order of the Municipal Board dismissing the appeal is entered, the order of the lieutenant Governor in Council dismissing the appeal is made and the day on which the Proposed Official Plan Amendment is approved pursuant to the Planning Act, 1983. ill) Where an application to Court is made in which the validity of: 1. the Proposed Official Plan Amendment or the Official Plan Amendment to give effect thereto, as the case may be, or the Zoning Amendment, or 2) the proceedings before the Town Council or a Committee thereof, or the proceedings before the Regional Council or a Committee thereof in respect of any of the Zoning Amendment and/or the Proposed Official Plan and Official Plan Amendment to give effect thereto, or 3) the approval of the Proposed Official Plan Amendment or the proceedings, decision or order of the Ontario Municipal Board or the lieutenant Governor in Council by the Proposed Official Plan Amendment is approved, - 6 - is called into question, either the date on which the "Final Disposition" of such application to the Court is made if the result is that the Official Plan Amendment to implement the Proposed Official Plan Amendment and the Zoning Amendment come into force and effect, or if the Court remits the matter back to the Town Council or the Council of the Regional Municipality of Durham, the Ontario Municipal Board or the lieutenant Governor in Council, the date of Final Disposition of such matter by such body, board or person. 4(b) For the purpose of this Agreement, the term "Final Disposition" means: i) The entry of an Order of a Court which finally disposes of an application to such Court; or ii) If following an application to a Court as referred to in this Agreement, the Court remits the Proposed Official Plan Amendment and/or the Proposed Zoning Amendment to the Ontario Municipal Board or the lieutenant Governor in Council, the entry of an Order of the Ontario Municipal Board or the making of an Order by the lieutenant Governor in Council which finally dismisses an appeal from the Zoning Amendment and/or finally approves the Proposed Official Plan Amendment. 5) For the purposes of this Agreement, the term the "Date of Unwinding of this Agreement" means the earlier to occur of: i) The day on which a decision or Order to reject the Proposed Official Plan Amendment or to allow an appeal from the enactment of the Zoning Amendment whether made by the Ontario Municipal Board or the lieutenant Governor in Council, becomes final and binding; and . ii) December 31, 1995 if by such date, either or both of the Proposed Official Plan Amendment and the Zoning Amendment have not been adopted and - 7 - enacted by the Regional Council and the Town Council, respectively and the Date of Final Approval of the Zoning Amendment has not occurred. 6) For the purposes of this Agreement the term the "Escalated Amount" means the aggregate of the amounts in excess of the sum of ONE HUNDRED AND t'frTY THOUSAND ($150,000.00) DOLLARS (the "Initial Amount") which result from increasing the Initial Amount by an amount (the "Increase") which is (are) determined, calculated and compounded on a monthly basis not in advance, at a rate equal to the rate of which thirty (30) day Government of Canada Bills are quoted, as provided by the Bank of Canada, in effect on the first business day of each month which includes all or part of the period of calculation in question, applied to an amount equal to the Initial Amount plus such Increases by which the Initial Amount has been increased pursuant to this paragraph 6 up ~'"'~ to ~~c1uding the date on which the calculation in question is made, provided that in the "r Owner's discretion the rate of increase applied in making each such calculation shall not .~. ~ exceed fifteen percent (15%) per annum calculated and compounded on a monthly basis ~ not in advance. The first increase shall be determined, calculated and compounded on the day which is the date of commencement of the calendar month which is at least thirty (30) days after the day on which the Proposed Official Plan Amendment is adopted by the Regional Council. 7(a) Any notices to be given under this Agreement shall be delivered to the Parties at the respective addresses. The respective addresses of the Parties for such purposes presently are as follows: The Corporation of the Town of Newcastle c/o The Clerk 40 Temperance Street Bowmanville, Ontario LtC 3A6 Markborough Properties Inc. 1 Dundas Street West Suite 2800 Toronto, Ontario MSG 212 Attention: Vice President Development, Shopping Centres - 8 - West Bowmanville Developments Ltd. 250 Consumers Road Suite 403 North York, Ontario M2J 4V6 Attention: President 7(b) Except in the event in the interruption in the postal service, any notices to be given under this Agreement shall be delivered in person, delivered by ordinary mail where receipt has been acknowledged, or sent by prepaid, registered mail addressed to the Parties at the respective addresses as set out in paragraph 7(a). In the event that a notice is delivered in person, the party receiving such notice shall forthwith indicate receipt of the notice by signing a form of acknowledgment of receipt and in that event the notice sball be deemed to have been received on the date on which the form of acknowledgment of receipt was signed. In the event that the Party refuses to sign an acknowledgment of receipt of the notice, the person delivering the notice may swear an affidavit or statutory declaration of service, and the notice shall be deemed to have been received on the date of service as set out in such affidavit or declaration, as the case may be. In the event that a notice is sent by prepaid registered mail or by ordinary mail where receipt has been acknowledged, it shall be deemed to have been received on the second clear business day following the day on which the notice was sent. 7(c) In the event of any interruption in the postal service, notice shall be given to any Party at its respective address as set out in paragraph 7(a), either in person or by special courier in the manner as set out in paragraph 7(a). The Party receiving the notice shall indicate the receipt of it by signing a form of acknowledgment of receipt and the notice shall be deemed to have been received on the date on which the form of acknowledgment was signed. In any event that any party refuses to sign an acknowledgment of receipt of the notice, the person delivering the notice may swear an affidavit of notice or statutory declaration and the notice shall be presumed to have been received on the date of service as set out in such affidavit or statutory declaration, as the case may be. - 9 - 8) The Parties hereto agree that the Town has the capacity and authority under law to make this Agreement for the benefit of the ratepayers of the Town. 9) Time shall be the essence of this Agreement. THE PARTIES hereto have executed this Agreement. SIGNED, SEALED AND DELIVERED In the Presence of I / ./)" L( ~I ~ t1UJ{jf ~ ) MARKBOROUGH PROPERTIES INC. ~ ,.""r~-= ~~~ ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Per: -iI J~~",,~ Se etary Per: Per: Per: Per: - 10 - SCHEDULE "A" Description of the Lands Part of Lot 16, Concession 1, Town of Newcastle, more particularly described as Parts 1,2, 3, 4 & 5 of a draft plan of survey prepared by JD. Barnes Ref. #90-25- 476-02 - 11 - SCHEDULE "B" Resolution of Council of the Town of Newcastle C-63S-90 as amended by Resolution C-636-90 THAT Report PD--282-90 be received; THAT Official Plan Amendment Application 88-87/D/N (Revised) submitted by Markborough Properties and West Bowmanville Developments be recommended to the Region of Durham for approval through an appropriate amendment to the Durham Regional Official Plan and the Town of Newcastle Official Plan which would permit the development of a 21,400 sq. In. (230,000 sq. ft.) shopping centre on the subject property and which would also incorporate the 3,200 sq. In. (33,900 sq. ft.) of retail floor space permitted under the adjacent local central area designation, subject to the owners entering into an agreement with the Town with respect to the payment of $300,000 as their share of the provision of water supply services including an escalation clause; THAT Rezoning Application DEV 88-99 (Revised) submitted by Markborough Properties and West Bowmanville Developments to permit the development of the proposed shopping centre be approved; THAT the amending by-law be passed subsequent to the owners meeting the following conditions: a) Official Plan Amendment Application 88-87/D/N being approved by the Region of Durham; b) The owners satisfy the requirements of the Ministry of Transportation with respect to transportation and access issues. This condition is applicable in the event Highway No.2 is transferred to the Region or the Town; c) The owners enter into an agreement with the Town of Newcastle, satisfying all requirements, site planning, financial and otherwise of the Town of Newcastle; THAT any delegation and those persons listed in Report PD-282-90 be advised of Council's decision, and a copy of Report PD-282-90 be forwarded to the Region of Durham Planning Department.