HomeMy WebLinkAbout2009-116ISSUE DATE:
Aug. 13, 2009
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Ontario
Ontario Municipal Board
Commission des affaires municipales de ('Ontario
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PL090085
Bowmanville Creek Developments Inc. has appealed to the Ontario Municipal Board under
subsection 22(7) of the Planning Act, R.S.O. 1990, c. P.13, as amended, from Council's refusal
or neglect to enact a proposed site-specific amendment to the Official Plan for the Municipality
of Clarington to redefine the limits of the "Highway Commercial" and "environmental Protection"
destinations to provide for exceptions permitting a greater variety of retail uses, one financial
institution and a private open space amenity area on Part of Lots 12 and 13, BF Conc., being
lands located east of Waverly Road, south of Baseline Road, west of Spry Avenue
COPA 2005-010
OMB File No: PL090085
Bowmanville Creek Developments Inc. has appealed to the Ontario Municipal Board under
subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended, from Council's
neglect to enact a proposed amendment to Zoning By-law 84-63 of the Municipality of
Clarington to permit amendments and exceptions to the °Special Purpose Commercial (C5)",
"Special Purpose Commercial Hold ([H] C5)", "Environmental Protection (EP)" and
"Environmental Protection Exception (EP-2)" zones to accommodate a greater variety of retail
uses, one financial institution and a private open space amenity area on Part of Lots 12 and 13,
BF Conc., being lands located east of Waverly Road, south of Baseline Road, west of Spry
Avenue
OMB File No: PL090062
Bowmanville Creek Developments Inc. has appealed to the Ontario Municipal Board under
subsection 41(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended, for determination and
settlement of details of a site plan for lands composed of Part of Lots 12 and 13, BF Conc., in
the Municipality of Clarington DIST~f
SPA 2003-036
OMB File No: PL090487 REVIEwEOer
APPEARANCES:
Parties
Bowmanville Creek Developments Inc.
Municipality of Clarington
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^ COUNCLL z+ CI COUNCIL .^ FRE
-DIRECTION ~INFOMAATWN
COPY TO: `'
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O MAYOR
. O NEIlER6 ^ CRO
Counsel - oFCOUxa
O CDANII/IIIY O CORPORATE O ENO
Mary Flynn-Gu lie I~ ~""~S ~`
- EN6NEERR~i O MUNICNML O 0?ER
SERNCES CIERR'S
Dennis Heller ixe
~ o SOI:ICITOR O_ REl
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v~ES
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MEMORANDUM OF ORAL DECISION DELIVERED BY R. ROSS( ON -
AUGUST 10 2009 AND ORDER OF THE BOARD ~ I
2005 -f~10
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_ 2 _ PL090085
Bowmanville Creek Developments Inc. (the Applicant) seeks to amend
Municipality of Clarington Zoning By-law 84-63 in order to permit a greater variety of
retail uses and size formats, one financial institution, redefined limits to the
environmental protection areas and a private open space amenity area.
The Applicant also seeks to amend the Municipality of Clarington Official Plan so
as to include an exception to the Highway Commercial policies in order to permit
additional uses within a proposed commercial development.. The additional uses will
consist of general retail uses, which have a minimum gross floor area of 929 square
metres and one financial institution in the form of a credit union.
The Parties have advised the Board that they have reached a settlement in the
case at hand. Planner Paul Stagl provided his expert land use planning evidence in
support of the amendments. The Applicant's property is a 7.3-hectare sized parcel of
land already commercially designated and zoned and it surrounds an existing
commercial parcel (the "Rona" site). Together, this commercial property comprises
approximately 10 hectares in total
Mr. Stagl gave evidence that the proposed Option Agreement provides the
Municipality of Clarington with the right to acquire some of the green land zoned "EP"
for passive use should the land fail to be developed within ten years. The Municipality
~~~~~ similar use be located on the lands zoned (H) C5-14. Mr. Stagl
also reviewed,the,tC®nditions for Site Plan Approval contained in Schedule 5 of the
Minutes of Sgtllgt~~r)~(Exhibit 2) and attached as Attachment "1" to the Order.
tom:, :. r J _ t
"'' `Y~"vias'I~Ir'Stag~'s professional planning opinion that the proposed additional uses
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,~G ap~r~,pziate,~fgr,th site and the proposed Official Plan Amendment and Zoning By-
ia ~.
law Amendment are onsistent with the 2005 Provincial Policy Statement; there are no
issues ~t~' res~e`c~ o, the Places to Grow Act and the proposed implementing
ms~trurnents rarse~any~issues of conformity. The proposed instruments also conform to
'""''~~he' C~urff~rr R~',~~~af~ Official Plan and the Municipality of Clarington Official Plan. In
~,-y~spa„~~~,,.X)~-,pr~pos d modifications, they reflect an appropriate range of uses for the
~nS.~or.~pgue ory and are sensitive to the existing Rona site and work as a
unified and comprehensive site.
_ 3 _ PL090085
Mr. Stagl opined that the proposed site-specific implementing By-law provides
clarity in respect of the permitted uses and performance standards. The proposed site
plan details are presented in a layout that is consistent with the approved policies of the
Official Plan and present good site organization. He added that in his opinion, the
proposed conditions are both reasonable and appropriate and collectively, the
instruments and site plan represent good planning and should be approved.
The Municipality's Planner, Mr. Jacobs, adopted the professional planning
evidence and opinion of Mr. Stagl and also supported the proposed amendments and
site plan.
Having considered the uncontradicted evidence of the Applicant's planner and as
supported by the Municipality's planner, the Board allows the appeals and amends the
Municipality of Clarington Official Plan with Official Plan Amendment No. 54 and
amends Municipality of Clarington Zoning By-law No. 84-63 with Zoning By-law
Amendment No. 2009-16.
In respect of the site plan appeal, the Board allows the appeal and approves, in
principle, the site plan as referenced in the drawings contained in Exhibit 7 and in the
site plan agreement as presented and pursuant to Schedules 4 and 5 of the Minutes of
Settlement (attached). The Board will issue its final Order on the site plan appeal once
the Municipality and the Applicant advise the Board in writing that the site plan
agreement has been duly executed. The Parties have until 30 September 2009 to
execute the site plan agreement.
So orders the Board.
"R. Rossi"
R. ROSSI
MEMBER
ATTACHMENT "1"
Schedule 4
Site Plan
26
Schedule 5
Conditions of Slte Plan AppnLal
CONDITIONS OF APPROVAL
The following are the conditions of approval of the Site Plan, Flans and Drawings:
1. The Owner shall enter into a development agreement with the Municipality of Clarington
dealing with and ensuring the provision and of all the faalities, wortcs and matters which
either are shown on the approved Site Plan; Plans and Drawings or are referred to in these
conditions, including the maintenance of them, as provided in Subsection 41(7)(b) of the
Planning Act. The agreement shalt contain standaid/reasonable provisbns by which
performance guarantees to the satisfaction of the Muni~;ipality of Clarington will be provided
by the Owner.
2.' Before any development takes place, applications will be made to amend the overall site
plan for the subsequent approval of drawings foreach truilding, as stipulated in 5ecction 4i of
the Planning Act, R.S.O. 1996, c.P.13 as amended, and the owner also agrees to enter into
amending site plan agreements as required with the Municipality of Clarington for any and all
buildings to be constructed on site. ___ ____ _.
3. Garbage must be stored internally for all builidngs Niue to their visibility from adjacent
roadways. A separate garbage building will be permited only for building D provided that it is
architecturally designed to match the main building end for any other building that the
Municipality of Clarington deems apropriate.
4. The Owner shall transfer to the Municipality of Clarinc ton for a nominal consideration free
and dear of encumbrances and restrictions, Part 28 on Reference Plan 40R-24250 for
entrance feature purposes, as shown on the Landscape Plan (Drawing L1 of 3).
5. The -Owner shall obtain an access permit from the Regional Municipality of Durham for
property access from W evenly Road for the developm ant of the site in accordance with the
Site Plan (Drawing SP-1 ).
6. All works and services, except Regional Municipality or Durham works and services, shall be
designed and constructed in accordance with the Mur icipality of Clarington Design Criteria
and Standard Drawings.
- __
7. The Owner shall submit six (6) copies of the deta led ServicinglGrading Plans to the
Regional Municipality of Durham for approval.
8. The Owner shall make application and obtain permission for connection to Regional
Municipality of Dufiam services and deposit monies n:quired for the installation of Regional
services to the site's property line.
9. The Owner shall obtain written permission from the Central Lake Ontario Conservation
Authority ("CLOG") under Ontario Regulation 42!06, the Authority's Fill Construcfwn and
Alteration to Waterways Regulation, prior to commer:cing any filling or grading on site.
24
10. The portion of the lands located east of the Spry Avenue extension shall not be developed
until such time as the Director of Planning Services has ^ecelved written notification that the
lands have been Filled to an acceptable elevation to the Central Lake Ontario Conservation
Authority and in accorctance with the requirements of thr: Central Lake Ontario Conservation
Authority Permit No. C08-039 dated April 7, 2008.
11. The Orvner shall obtain CLOC's approval of the Sediment and Erosion Control Plan
(Drawings ES•1 and ES-2) for the site to implement the stormwater management measures
as described in the report titled "Bowmanville Greek Developments, Bowmanville
Commercial Piaza, Baseline Road, Municipality of Clarington, Stomiwater Management and
Site Servicing Report" as prepared by D.G. Biddle & Associates Limited, dated July 2004
and revised August 2005, as approved by CLOC, Minist:yof Transportation, and Municipality
of Clarington's Director of Engineering Services.
12. The Owner agrees to install a 1.5 meter chain link ferce on the easterly boundary of the
Private Open Space Amenity Area zoned "(H) EP16" in the Zoning By-law 64-63 of the
Former Town of Newcastle.
13. The Owner agrees to implement all development ;and operational recommendations
contained a report titled "Environmental Impact Study" prepared by Aquafor Beech, dated
------ --- December2005 as finally_ approved_b_y_the. Municipality of Clarington and Central Lake
Ontario Conservation.
14. The Owner agrees to install the approved full cut-off li~3hting as indicated on the Site Plan
Lighting Layout (Drawing E-01) dated August 2005 ~md Site Plan Lighting Calculations
(Drawing E-04) dated August 2005 as prepared by Leip:iger Kaminker Mitelman & Partners
Inc. anti revised on July 27, 2008 and July 27, 2006 respectively. Once al! of the new site
lighting has been installed on the subject lands, the Owner agrees to obtain a letter from the
project's lighting engineer certifying that the lighting has been installed in accordance with the
Site Plan Lighting Layout (Drawing E-01) dated August 2005 and Site Plan Lighting
Calculations (Drawing E-04) dated August 2005 as prepared by Leipciger Kaminker Mitelman
& Partners Inc. and revised on July 27, 2008 and July:?7, 2006 respectively.
15. The Owner shall provide the necessary 2% parkland dedication as a cash payment to the
Municipality of Clarington in lieu of partland dedication pursuant to Clarington Municipal By-
law no. 95-104. The market value of the lands for Pait 26 on Reference Plan 40R-24250,
shall be deducted from the Owner's cash in lieu payrrent requirement,
16. Prior to commencing any work on site, the Owner shall provide the Muniapality of Clarington
with a $10,000.00 road damage deposit for works associated with Baseline Road..
17. The Owner shall deliver a performance guarantee satisfactory to the Director of Planning
Services for all landscaping works associated with the: storm water channel and with areas
not associated with buildings. Additionally, the Owner shall deliver a performance guarantee
to the Nlunicipalityforlandscaping woricsassociated w theach building approved bysite plan
amendment as referred to in condition 2. Final cos': estimates must be provided by the
Owner to the Direclor of Planning Services for his approval.
18. The Owner agrees to install and maintain oil grit seK~arators to the satisfaction of Central
30
Lake Ontario Conservation and the Director of Engineering Services,
19. The Owner agrees to obtain all necessary sign permits from the Municipality of Clarington
and the Ministry of Transportation.
20. The Owner agrees to pay to the Municipality of Clarington the reasonable fees incurred after
August 10, 2009 for the preparation and registration of the site plan agreement,
21, The Owner shall not release or abandon any of its rights under the easement transferred to
the Owner by Shell Canada Limited by Instrument No. DR730124 registered in the Land
Registry Office for the Land Titles Division of Durham {No. 40) on July 17, 2008. The Owner
shall construct, reconstruct and maintain an access road open to the public from Waverly
Road as shown on the Site Plan (Drawing SP-1) datsd July, 2009 as prepared by D.G.
Biddle & Associates and revised on August 5, 2009.
Board File Nos. PL090085
S PL090082
OMB Case Nos. PL090085
PL0090062
ONTARIO MUNICIPAL BOARD
IN THE MATTERS OF subsections 22(7) and 34(19) of the Planning Act R.S.O. 1990, c.P.13, as
amended
Municipality: Clarington
Applicant: Bowmanville Creek Developments Inc.
Appellant: Bowmanville Creek Developments Inc.
Property Location: Part of Lots 12 and 13, Broken Front Concession, Bowmanville
Official Plan Number: COPA 2005-0011
Municipal File Number: ZBA 2005-0058
MINUTES OF SETTLEMENT
WHEREAS:
A Bowmanville Creek Developments Inc. (°BCD'~ is the registered owner in fee simple ofthe
lands and premises in the Municipality of Clarington ("Clarington' which are more particularly
described as the °Development site" in the Option Agreement (as hereafter defined) contained in
Schedule 3 hereto. The Development Site includes Part 24 on Reference Plan 40R-24250
deposited in the Land Registry Office forthe Land Titles Division of Durham (No. 40) ("Property'.
B. Clarington's Director of Planning Services filed Report #PSD-077-08 dated Septe(nber 22,
2008 with Clarington's General Purpose and Administration Committee respecting BCD's
applications for an Official Plan Amendment (File No. COPA 2005-0011) and a Zoning By-law
Amendment (File No. ZBA 2005-0058). The recommendations contained in the Report were
amended by Clarington Council at its meeting on December 8, 2008. At that meeting Clarington
Council resolved to endorse the recommendations contained in Addendum #3 to Report#PSD-077-
08. .
C. Also, in the resolution referred to in Recital B, Clarington Council withheld the passing ofthe
necessary by-laws to approve Official Plan Amendment No. b4 and to amend Zoning By-law 8463,
as amended until such time as, among other things, an agreement of purchase and sale of the
Property is made between the Applicant and Clarington to provide for the transfer of title to these
lands to Clarington for a nominal consideration if a hotel satisfying certain specifications set out in
Addendum #3 had not been constructed on said lands within a period also specified in Addendum
#3.
D. BCD has appealed to the Ontario Municipal Board from Clarington's refusal or neglect to
2 PL090085
PL090062
approve and pass the Official Plan Amendment (COPA 2005-D011) and the Zoning By-law
Amendment (ZBA 2005-0058). BCD has also referred fts application for approval of plans and
drawings for the development of the Development Site ("Site Plan") to the Board. A hearing
respecting these matters has been scheduled by the Board to commence on August 10, 2009.
E. BCD and Clarington wish to resolve their differences on the basis as set out below in order
to avoid contesting the issues at the hearing before the Ontario Municipal Board.
NOW THEREFORE in consideration of the mutual covenants contained herein and the
payment by each Party to the other of the sum of $2.00, the receipt whereof is hereby
acknowledged by each of them, BCD and Clarington covenant and agree as follows:
1.(1) Subject to paragraph 3 of these Minutes of Settlement, the appropriate resolution by the
Ontario Municipal Board of the Appeals referred to in Recital D is forthe Board to grant the
Parties' request that the Board:
(a) approve Official Plan Amendment No. 54 to the Official Plan for the Municipality of
Clarington, substantiallywdhthe content of the proposed Official Plan Amendment
No. 54 contained in Schedule 1 hereto;
(b) enact a By-law to amend- Clarington's Zoning By-law 84-63, as amended as it
applies to the Property, substantially with the content ofthe proposed Zoning By-law
Amendment contained in Schedule 2 hereto; and
(c) approve the Site Plan contained in Schedule 4, subject to the cond'Rions set out in
Schedule 5 hereto.
The Parties will make such request at the commencement of the hearing of the appeals and
referral referred to in Recital D.
1.(2) If a building permit for a hotel or other approved permitted use referred to in section 1(c) of
the proposed Official Plan Amendment contained in Schedule 1 hereto is not issued within
ten years following the day on which the proposed Zoning By-law contained in Schedule 2
hereto is approved and enacted by the Ontario Municipal Board, BCD, and an assignee or a
successor in title of BCD of any portion of the Development Site will not object to the
amendment of the Zoning By-law to rezone the portion of the Property zoned (H) EP-16 to
EP. BCD will bring this section 1(2) to the attention of each assignee or successor in title to
the whole orany portion of the Development Site priorto making an assignment ortransfer
of R or any portion of it to such person.
2. These Minutes of Settlement are conditional on each of BCD and Clarington, executing and
delivering to the other an agreement forthe purchase by Clarington of Part 24 on Reference
Plan 40R-24250 fora nominal consideration substantially in the form of the agreement
contained in Schedule 3 (`Option Agreement').
3. Clarington consents to the reference by BCD to the Ontario Municipal Board ofthe decision
to consider, and if appropriate, approve the Site Plan, conditions to such approval, and the
3 PL090085
PL090062
terms of any agreement required to be made as a condftion of approval of the Sfte Plan.
Clarington also consents to the consolidation of this matter' with the appeals referred to in
Recital D.
BCD and Clarington will tender these Minutes to the Ontario Municipal Board, will present
them in positive terms, and will actively cooperate to promote acceptance by the Board of
them.
5. BCD and Clarington will not call any evidence nor advance any argument inconsistent with
the letter and spirit of these Minutes of Settlement.
6 Clarington and BCD will call such evidence and advance such arguments as are required to
support these Minutes of Settlement. Clarington and BCD will also oppose any evidence
and argument presented by any other person to the Board which are inconsistent with the
letter or spirit of these Minutes.
7, Neither BCD nor Clarington will request the Board to make any order for the payment of
costs by either of them to the other.
8. Time is of the essence of these Minutes of Settlement.
9. These Minutes of Settlement shall enure to the benefit of and shall bind the Parties and their
respective assigns and successors
10. The execution of these Minutes of Settlement on behalf of Clarington by its Mayor and its
Municipal Clerk is authorized by By-law 2009-085 passed by Clarington Council at its
meeting on June 15, 2009.
4 PL090085
PL090062
DATED at Bowmanville, Ontario, this 10"' day of August, 2009.
THE CORPORATION OF THE MUNICIPLITY
OF CLARINGTON
Mayor
DATED at Toronto, Ontario, this ~ day of August, 2009.
BOWMANVILLE CREEK DEVELOPMENTS
INC.
Per:
Per:
INVe have the authority to bind the Corporetion.
Wehave the authority m bind the Corporation.
Schedule 1
Official Plan Amendment No. 54
to Clarinaton Official Plan
AMENDMENT N0.54
TO THE MUNICIPALITY OF CLARINGTON OFFICIAL PLAN
PURPOSE: The purpose of this amendment is to permft a greater range of retail uses and
size formats within a proposed Highway Commercial development, one financial
institution, redefined limits to the environmental protection area, and a private
open space amenity area.
BASIS: The application is based on an Official Plan Amendment application (COPA
2005-0010) submitted by Bowmarnille Creek Developments Inc. --
ACTUAL The Municipality of Clarington Official Plan is hereby amended as follows:
AMENDMENT:
1. By including an exception to Section 23.14 to create Section 23.14.9 as
follows:
"23.14.9 Notwithstanding Section 10.8.1, in addRion to permitted Highway
Commeraal uses, on the lands located east of Waverly Road, south of
Baseline Road legally described as Part of Lots 12 and 13, Broken Front
Concession, Former Town of Bowmanville the following uses shall be
permitted:
a. limited retail stores less than 500 mZ;
b. one cred'R union not .present in the Bowmanville Urban Area on
November 10; 2008; and
c. private open space amenity area for use in conjunction with
a hotel and/or other land use permitted by the Zoning By-
lawand approved by Council in its discretion as appropriate
for the use in conjunction with the private open space
amenity area, provided that a building permit is issued for
the construction of either the hotel or such other approved
land use within ten years following the day on which the
Zoning By-law Amendment under File No. ZBA 2005-0058
is approved by the Ontario Municipal Board, and provided
furtherthat if a building permit is not so issued, Council may
amend the Zoning By-law by deleting the private open
space amenity area zone designation.
Exhibit "A", Amendment Na. 54 To the Municipality of Ciaringtan
Official Plan, Map A3, Land Use, gawrmanvitie Urban Area
Schedule 2
By-law No. 2009-116
THE CORPRATION OF THE MUNICIPALITY OF CLARINGTON
BY-LAW NO. 2009-116
Being a By-law to amend By-law 843, the Comprehensive
Zoning By-law for the Corporation d the
Municipality of Clarington
The Ontario Municipal Board enacts as follows:
Municipality of Clarington Zoning By-law 84-63, as amended, is amended as
follows:
2. Section 20.4 "SPECIAL EXCEPTIONS-SPECIAL PURPOSE COMMERCIAL (C5) ZONE°
is hereby amended by introducing a new Sub-Section 20.4.14 as follows:
"20.4.14 SPECIAL PURPOSE COMMERCIAL EXCEPTION (C5-14) ZONE
Notwithstanding Sections 3.14 and 2D.1, those lands zoned C5.14 on the Schedules to this By-
law shall be used subject to the following defindions and permitted uses:
a. Definitions
Credit Union shall mean a corporation incorporated as a credit union or caisse populaire
under the Credit Unions and Caisse PopulairesAct.
Drive-Through Facility shall mean the use of land, buildings or structures, or part thereof,
to provide or dispense products or services, either wholly or in part, through a window or an
automatic machine, to customers temaining in motor vehices, which are located in a
stacking lane. Adrive-through facility may be established in combination with -other
permitted non-residential uses.
Stacking Lane shall mean a queuing lane for motor vehicles which is located on the same
lot as the drive-through facility and which is separated from other motor vehicle traffic on the
same lot by barriers or curbs.
b. Residential Uses
Prohibited
c. Non-Residential Uses
i) an assembly hall;
ii) a day nursery;
ii) an eating establishment;
iv) an eating establishment-take out;
v) an eating establishment with adrive-through facility;
vi) a beer, liquor or wine outlet;
vi) a credit union not represented in the Bowmanville Urban Area on November 10,
2008;
vii) a garden or nursery sales and suppy establishment;
ix) a hotel;
x) a retail commercial establishment;
xi) a place of entertainment;
xi) a place of worship;
xiii) a private club;
xiv) a tavern;
xv) a veterinarian Ginic;
xvi) building supply outlet;
xvii) motor vehiGe sales establishment, provided the primary use is restricted to new car
sales;
xviii) offices, located on a second floor only, unless directly related to the primary use(s)
of the ground floor.
xix) notwithstanding subsection xvii) business and professional offices located on the
ground floor are permitted provided the cumulative floor space used for such
ground floor office uses on lands zoned C5-14 does not exceed 500 mz.
d. Regulations for Non-Residential Uses
The minimum floor area for a retail commercial establishment shall be greaterthan
465 mZ.
ii) Notwithstanding Section 20.4.14 d. i), a maximum of 2,787 m2 of gross floor space is
permitted with a minimum gross floor area of 232 mZ and a maximum gross floor
area of 465 mZ per unit.
iii) Notwithstanding Section 20.4.14 d. i) arid ii), a maximum of three (3) individual
business establishments with a total floor area less than 250 mZ but greater than
100 mZ may be constructed and used, provided they each face on to Baseline Road.
iv) Notwithstanding Section 19.3 f), the exterior side yard for a building with a total floor
area less than 500 m2 shall be a minimum of 5 metres.
v) Outdoor storage is prohibited.
vi) a zone line is not a property fine for purposes of determining setbacks between the
C5-14 and C5 zones.
e. Regulations for Drive-Through Facilities
Where adrive-through facility is permitted, the following requirements shall apply:
i) A stacking lane shall be provided and maintained on the lot on which the drive-
through facility is located which shall have a minimum length of 72 metres, a minimum
width of 3 metres and any entrance to the stacking lane shall be located a minimum of
18 metres from the limit of a public street.
ii) No part of a stacking land hall be so located that at any time any motor vehicle
which uses d may block, impede or interfere with the use of any parking space required
to be provided on the lot on which the drive-through facility is located.
ii) No portion of the stacking lane shall be located between a building and a street line.
iv) Notwithstanding Section 20.4.14 (e) (),the minimum length for a stacking lane for a
drive-through facility associated with a credit union is 24 metres."
f. Holding Zone
Where the zone symbol shown on a Schedule to this By-law is preceded by the letter (H),
the use of the lands shall be limited to existing residential uses and conservation, forestry
and farm uses exclusive of livestock operation. The (H) Holding symbol shall be removed
upon the execution of a Section 41(7) Site Plan Agreement securing conditions of approval
in respect of servicing and access matters as well as any associated financial requirements.
3. SECTION 5.2 "SPECIAL EXCEPTIONS - ENVIRONMENTAL PROTECTI ON (EP) ZONE is
hereby amended by introducing a new Sub-Section 5.2.16 as follows:
"5.2.16 ENVIRONMENTAL PROTECTION EXCEPTION (EP-16) ZONE
Those land5zoned EP-16 on the Schedules to this By-law may be used as a public park or
public open space, and notwithstanding Section 5.1 may be used for a private landscaped open
space area containing only walking trails, gardens and outdoor fitness equipment and play
areas accessory to a hotel or other uses permitted in the C5-14 zone ss amended in section
1(c) of Official Plan Amendment No. 54.
Where the zone symbol shown on a Schedule to this By-law is preceded by the letter (hl), the
use of the lands shall be limited to existing residential uses and conservation, forestry and farm
uses exclusive of livestock operation. The (H) Holding symbol shall be removed upon the
execution of a Section 41(7) Site Plan Agreement securing conditions of approval in respect of
servicing and access matters as well as any associated financial requirements.
4. The map contained in Schedule "3" of By-law 84-63, as amended, is hereby further
amended by changing the zone designations from:
"Special Purpose Commercial (C5) Zone" to "Special Purpose Commercial Exception (C5-14)
Zone";
"Special Purpose Commercial (C5) Zone" to "Environmental Protection (EP) Zone";
"Holding -Special Purpose Commercial ((H)CS) Zone" to "Special Purpose Commercial
Exception (C5-14) Zone",
"Environmental Protection Exception (EP-2) Zone" to "Special Purpose Commercial Exception
(C5-14) Zone';
"Environmental Protection Exception (EP-2) Zone" to "EnvironmentaLProtection (EP) Zone";
"Environmental Protection (EP) Zone" to "Holding -Environmental Protection Exception ((H) EP-
16) Zone"
10
"Environmental Protection (EP) Zone'to "Holding-Special Purpose Commercial Exception ((H}
C5-14) Zone"; and
"Environmental Protection (EP) Zone° to "Special Purpose Commercial Exception (C5-14)
Zone";
all as shown on the attached Schedule "A" hereto.
5. Schedule "A" attached hereto shall form part of this By-Law.
By-law enacted this -day of . 2009
Ontario Municipal Board
This is Schedule °A° to By-law 2009- 776
BOWMANV/L / F
Zoning to Remain"EP"
® Zoning Change From "EP-2" To "EP"
Q Zoning Change From "C5" To "EP"
~ Zoning Change From "EP" To'(H)EP-16"
"" Zoning Change From "EP" To "(H)Cr14"
~ Zoning Change From "EP" To "C5-14"
®Zoning Change from "EP-2" To "Cr14"
®Zoning Change From "C5" To "C5-14"
®Zoning Change From "(H~5" Ta "C~14"
ZBA 2005-058
ii
Schedule 3
Option Agreement
THIS OPTION AGREEMENT made as of the 10"' day of August, 2009.
BETWEEN:
BOWMANVILLE CREEK DEVELOPMENTS INC.
(hereinafter collectively called "BCD'
- and -
OF THE FIRST PART
THE CORPORATION OF THE
MUNICIPALITY OF CLARINGTON
(hereinafter called the "Municipality'}
OF THE SECOND PART
WHEREAS:
A. .BCD is the registered owner of the land described as part of PIN 26644-D277 (LT),
designated as Part 24, Plan 40R-24250, deposited in the Land Registry Office for the Land Titles
Division of Durham (No. 40) ("Property', which forms part of a larger parcel of land owned by BCD
more particularly described in Schedule i, attached hereto (the "Development Site;
B. The Municipality and BCD have executed Minutes of Settlement dated August 10, 2009 (the
"Minutes") whereby the parties agreed to enter into an option agreement for the purchase of the
Property by the Municipality on certain terms and conditions, as more particularly set out herein;
C. The execution of this Option Agreement by the Mayor and Municipal Clerk on behalf of the
Municipality of Clarington is authorized by By-law 2009-085 passed bythe Municipality's Council at
its meeting on June 15, 2009.
NOW THEREFORE in consideration of the mutual covenants set forth herein contained
and the sum of TWO DOLLARS ($2.00) and other good and valuable consideration (the receipt
and sufficiency of which is hereby acknowledged by each of the parties), each party covenants
and agrees with the other party as follows:
tz
OPTION TO PURCHASE
BCD hereby grants to the Municipality an option to purchase the Property ("Option' free
and clear of all encumbrances, save and except forthose permitted encumbrances set out
in Schedule 2 attached hereto (the `Permitted Encumbrances.
2. The Option maybe exercised by the Municipality at any time after the tenth anniversary of
the date of Final Approval (`Option Exercise Date") but only in the event of the following:
(a) a hotel has not been built upon the Development Sfte; or
(b) the Development Site is not used as one of the uses permitted by the. relevant
zoning by-law, which use is approved by the Municipality, in fts discretion.
(Sections 2(a) and (b) collectively referred to herein as the `Permitted Use's
For greater certainty, this Option Agreement will terminate upon BCD; or a successor in
title, using the Development Site as a Permitted Use and such Permitted Use being
evidenced by an occupancy permit being granted by the Municipality for such Permitted
Use. The Parties hereto agree to take all action required to remove this Option
Agreement from title to the Property upon such termination.
3. In the event that the Municipality wishes to exercise the Option, it shall do so by giving
written notice to BCD or its successor in title at any time after the Option Exercise Date (the
"Notice'.
4. Any reference plan of survey of the Property that may be required in connection with the
sale of the Property to the Municipality, shall be prepared and deposited on title by BCD at
its cost, following the Municipality's giving of the Notice.
5. Upon the Notice being provided to BCD, or its successor in tRle, the Parties shall be
deemed to have entered into a binding agreement of purchase and sale for the Property,
which agreement shall be comprised of the terms and conditions set out in Schedule 3
attached hereto ("Purchase Agreement'. The Purchase Agreement shall provide for its
completion by way of the transfer by BCD to the Municipality fee and clear of encumbrances
and restrictions of the Property (save and except for Permitted Encumbrances) for a
nominal consideration, on or poor to the day which is thirty (30) business days (excluding
Saturdays, Sundays and public holidays) following the Option Exercise Date, unless a
13
reference plan is required in accordance with Section 4, above, in which event, BCD may
set a later completion date that is between fifty (50) days and three hundred and sixty-five
(365) days following the Option Exercise Date ("Completion Date', which later completed
date may be set by BCD on fifteen (15) days prior written notice to the Municipality.
FINAL APPROVAL OF PLANNING DOCUMENTS OR UNWINDING OF AGREEMENT
6. (t) .This Option Agreement shall unwind and be of no further force or effect in
accordance with the provisions of paragraph 6(4) below, in the event that any of the
following events occurs (each a "Triggering Evenf~:
(a) on or before September 30, 2009, the Ontario Municipal Board ("Board°) refuses to
approve and enact (1) an Official Plan Amendment substantially with the content of
the proposed Official Plan Amendment referzed to in the Minutes, and (2) the
proposed Zoning By-law Amendment substantially with the content of the Zoning
By-law Amendment referzed to in the Minutes (collectively, the "Planning
Documents°);
(b) one or more objections .are made to the Board respecting the approval and
enactment by the Board of any of the Planning Documents and the "Final
Disposition' (as hereafter defined) of such appeal(s) does not result in the "Final
Approval° (as hereafter defined) of the Planning Documents, subject only to
"Permitted Amendments" (as hereafter defined), on or prior to December 31, 2Qt 0;
or
(c) no objections are made to the Planning Documents, but they do not receive Final
Approval on or before September 30, 2009.
(2) For the purposes of this Agreement,
(a) the term "Permitted Amendments" means any modification of andlor amendment to
any one or more of the Planning Documents which,
O do not have the effect either of imposing any additional restrictions on the
development or use of the Development Site forthe purposes set out in the
Planning Documents or of imposing addtional obligations on BCD; or
is
(ii) is imposed by the Municipality or made by the Board, and in respect of
which, BCD agrees in writing, prior to the tenth (10) day of such modification
andlor amendment being proposed or made; and
(b) the term "Final Disposition" means the latest to occur of:
() the approval and enactment by the Board of the Planning Documents,
unless an application for leave to appeal from, or judicial review of, the
decision or order of the Board is made to the Ontario Divisional Court;
(ii) fan application for leave to appeal orjudicial review to the Ontario Divisional
Court is made from a decision by the Board, the date of issuance of an order
by the Ontario Divisional Court dismissing the application for leave to appeal
orjudicial review, or if leave to appeal is granted, the date of issuance of a
final order by the Ontario Divisional Court in respect of the appeal, unless an
application for leave to appeal from the order of the Ontario Divisional Court
is made to the Ontario Court of Appeal; and
(iii) if an application is made for leave to appeal to the Ontario Court of Appeal
from a decision of the Ontario Divisional Court, the date of issuance of an
order by the Ontario Court of Appeal dismissing the application for leave to
appeal, or if leave to appeal is granted, the date of issuance of a final order
by the Ontario Court of Appeal in respect of such appeal.
(3) For the purposes of this Option Agreement, the term "Final Approval" means the
latest to occur of the approval and enactment by the Board of the Planning
Documents provided for in the Minutes and:
(a) the expiration of all appeal periods therefrom, without any appeals having been filed;
and
(b) if any appeal is filed, the Final Disposition of all such appeals that result in the
Planning Documents coming into full force and effect, subject only to Permitted
Amendments.
(4) Upon the occurrence of a Triggering Event, the Parties hereto hereby irrevocably
consent to the repeal of the Planning Documents and this Option Agreement shall
unwind and have no further force or effect (the "Unwinding Event'. Following the
is
occurrence of the Unwinding Event, the Municipality may proceed to repeal each of
the Planning Documents. This paragraph 6(4) shall survive the unwinding of this
Option Agreement pursuant to paragraph 6(1) hereof.
16
REGISTRATION ON TITLE AND REMOVAL f ROM TITLE
BCD hereby consents to the registration of this Option Agreement or a Notice of it on the
title to the Property. Forthwith following the time at which BCD has satisfied its obligations
- under this Agreement or this Agreement unwinds pursuant to paragraph 6, the Municipality
shall execute at BCD's written request and at no cost to BCD, such documents prepared by
BCD as are necessary to remove the registration of this Agreement or Notice of it from title
to the Property. This paragraph 7 shall survive the unwinding of this Option Agreement
pursuant to paragraph 6.
NOTICE
8. If any notice or other document is given pursuant to this Option Agreement to by the
Municipality or by any official of the Municipality to BCD, or by BCD to the Municipality, such
notice shall be transmitted by telefax, mailed by first class prepaid post or delivered to:
To BCD:
Go Torgan Group
Madison Centre
4950 Yonge Street, Suite 1010
Toronto, ON M2N 6K1
Attention: Oz Cohen
Fax: 416-221-6710
OR,
To the Municipality:
The Municipality of Ciarington
40 Temperance Street
Bowmanville, ON L1 C 3A6
Attention: Director of Planning Services
Fax: 905-623-0830
or such other telefax number or address of which either party has noted 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 Option Agreement, and if telefaxed 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 fifth business day (excluding Saturdays, Sundays and statutory holidays) following
~~
the mailing thereof. Notwithstanding the foregoing, in the event that tt may be
reasonably anticipated that due to Force Majeure (as hereafter defined) any notice will
not be received within the time limit set out above, then such notice shall be sent by an
attemate means of transportation which may reasonably be anticipated will cause the
notice to be received expeditiously by the addressee.
FORCE MAJEURE
9.
The term "Force Majeure" means any delay which is imposed by reason of strikes, lockouts,
riots, wars or acts of military authortty, ads of public enemies, acts of terrorism, sabotage,
epidemics, washouts, nuclear and radiation activity or fallouts, rebellion or civil commotion,
fire or explosion, flood, wind, water, earthquake or other casualty, or an Act of God and any
ad, omission or event whether of the kind herein enumerated or otherwise not within the
control of BCD orthe Municipality, none of which has been caused by the deliberate default
or ad or omission by such party and none of which has been avoidable by the. exercise of
reasonable effort or foresight by BCD orthe Municipality. A party shall notify the other party
to this Option Agreement of the commencement, duration and consequence (so far as the
same is within the knowledge of the first party) of any Force Majeure affecting the
performance of any of tts obligations hereunder within thirty (30) days of gaining such
knowledge.
STATUS STATEMENT
10. At any time and from time to time at the request of BCD, the Municipality shall provide to
any party identified by BCD as having an interest or potential interest in the Development
Site, at no cost to BCD or such party, a written status statement respecting the status of this
Option Agreement and the compliance with the terms hereof by each of the parties hereto,
such status statement to be in form and substance satisfactory to the Municipality and BCD,
each acting reasonably.
TIME OF THE ESSENCE
11. Time is of the essence of this Option Agreement.
AUTHORITY OF MUNICIPALITY
12. BCD acknowledges and agrees that the Municipality has authority to enter into this Option
Agreement, that every provision hereof is authorized by law and fully enforceable by the
parties, and that this Option Agreement is executed by the Municipality in reliance on the
18
acknowledgement and on the covenants contained in the Option Agreement of BCD as
aforesaid.
INTERPRETATION -
13. (1) The Schedule(s) attached to this Option Agreement are intended by the Parties and
shall be deemed to be parts of its operative provisions. The Schedule(s) shall have
the same effect as covenants contained in this Option Agreement.
(2) In this Option Agreement, unless the context otherwise requires, the masculine
shall include the feminine and the neuter, the singular shall include the plural and
the plural shall include the singular.
LAWS OP ONTARIO APPLY
14. The laws of the Province of Ontario shall govern this Option Agreement ahd the
enforcement of it by the Parties.
FURTHER ASSURANCES
15. The Parties hereby. covenant and agree to forthwith execute and provide all further
documents, instruments and assurances as may be necessary or required in order io carry
out (and give effect to) the true intent of this Option Agreement, and to effect the registration
against and release from title to the Development Site of such notices or other instruments
in accordance wRh the provisions of this Option Agreement.
ENUREMENT
16. This Option Agreement shall enure to the benefd of and be binding on the Parties hereto,
and their respective administrators, assigns and successors.
[signature page(s) to follow]
T9
IN W ITNESS WHEREOF the Parties hereto have hereunto set their hands and seals the day
and year first above written and the Parties hereto have hereunto affuced their corporate seals
by the hands of their proper officers duly authorized in that. behalf.
) THE CORPORATION OF THE MUNICIPALITY
SIGNED, SEALED AND ) OF CLARINGTON
DELIVERED
In the presence of: ~ Jim Abernethy, Mayor
~ Patti L. Barrie, Municipal Clerk
_ ~ We have power to bind the -Corporation.
~ BOWMANVILLE CREEK DEVELOPMENTS
) INC.
)
Name: Title:
Name: Title:
) Uwe have power to bind the Corporation.
SCHEDULEI
Legal Description of Development Site
PIN 26644-0280(LT,}
Part Lot 131ying noRh of the CNR Concession Broken Front Darlington (Bowmanville),
designated as Parts 2, 3, 4 8 5, Plan 40R-24250, Clanngton, Regional Municipality of Durham,
subject to an easement-over Part 3, Plan 40R-24250 as in Instrument No. N162778, subject to
an easement in gross over Part 5, Plan 40R-24250 as in Instrument No. DR506420, together
with an easement over Part of Lot 11 BFC Darlington, designated as Parts 27 & 28, Plan 40R-
24250 as in Instrument No. DR554686, together with an easement over Part of Lot 12 lying
north of the CNR BFC Darlington (Bowmanville), designated as Part 21, Plan 40R-24250 as in
Instrument No. DR554686, together with an easement over Part of Lot 13 Concession Broken
Front Darlington (Bowmanville), designated as Part 5, Plan 40R-25159 as in Instrument No.
DR730124, together wRh an easement over Part of Lot 13 Concession Broken Front Darlington
(Bowmanville}, designated as Part 5, Plan 40R-25159 & Parts 30 & 31, Plan 40R-24250 until
2028/07/17 as in Instrument No. DR730125.
`PIN 26644-0282(LT}
Road allowance between Lots 12 813 lying north of the CNR Concession Broken Front
Darlington (Bowmanville) (aka Scugog Street) between Baseline Road and The Kings Highway
No. 401, designated as Parts 1 & 2, Plan 40R-24112 S & E, Part 8, Plan 40R-24250, Clanngton,
Regional Municipality of Durham, subject to interest in Instrument No. N148561, subject to an
easement in gross over Part 2, Plan 40R-24112 as in Instrument No. DR497811; subject to an
easement in gross over Part 10, Plan 40R-24250 as in Instrument No. DR506420, together with
an easement over Part 11 BFC .(Darlington), designated as Parts 27 & 28, 40R-24250 in favour
of Parts 7, 9, 10 8 11, Plan 40R-24250 as in Instrument No. DR554686, together with an
easement over Part Lot 12 lying north of the CNR BFC Darlington (Bowmanville), designated as
Part 21, Plan 40R-24250 in favour of Parts 7, 9, 10 & 11, Plan 40R-24250 as in Instrument No.
DR554686, together with an easement over Part Lot 13 Concession Broken Front Darlington
(Bowmanville), designated as Part 5, Plan 40R-25159 as in Instrument No. DR730124, together
with an easement over Part Lt 13 Concession Broken Front Darlington (Bowmanville),
designated as Part 5, Plan 40R-25159 & Parts 30 8 31, Plan 40R-24250 until 20 2 8107/1 7 as in
Instrument No. DR730125.
PIN 26644-0283(LT)
Part Lot 13 Concession Broken Front Darlington (Bowmanville), designated as Parts 2, 3, 4 & 6,
Plan 40R-25159, Clanngton, Regional Municipality of Durham, together with an easement over
Parts 7 & 8; Plan 40R-22635 until the lands are dedicated as a public highway as in Instrument
No. DR279563, subject to an easement in gross over Part 6, Plan 40R-25159 as in Instrument
No. DR553512, together with an easement over Part Lot 13 Concession Broken Front,
Darlington (Bowmanville), designated as Part 5, Plan 40R-25159 as in Instrument No.
(Bowmanville)9 des gnat d as Part 5, Plan 40R--25159 & Partsn30 8 i31, P an 40R--24260 uinti on
20 2 8 /0 711 7 as in Instrument No. DR730125.
PIN 26644-0277(LT)
Part Lot 12 lying north of the CNR Concession Broken Front Darlington (Bowmanville),
designated as Parts 12, 13, 15, 16, 19, 20, 23 & 24, Plan 40R-24250, Clanngton, Regional
Municipality of Durham, subject to an easement over Parts 12 & 13, Plan 40R-24250 as in
Instrument No. N162778, subject to an easement in gross over Part Lot 12 BFC Darlington,
designated as Parts 15 8 16, Plan 40R-24250 as in Instrument No. DR506420, together with an
easement over Part Lt 11 BFC (Darlington), designated as Parts 27 & 28, Plan 40R-24250 as in
21
Instrument No. DR554686,
together with an easement over Part of Lot 12 lying north of the CNR BFC Darlington,
designated as Part 21, Plan 40R-24250 as in Instrument No. DR554686, together with an
easement over Part of Lot 13 Concession Broken Front, Darlington (Bowmanville), designated
as Part 5, Plan 40R-25159 as in Instrument No. DR730124, together with an easement over
Part of.Lot 13 Concession Broken Front Darlington, (Bawmanville), designated as Part 5, Plan
40R-25159 & Parts 30 & 31, Plan 40R-24250 until 2028!07/17 as in Instrument No. DR730125.
SCHEDULE2
Permitted Encumbrances
PIN 28644-0280(LT)
1. Instrument No. N162778 registered November 13, 1990, being a Transfer of Easement
to The Regional Municipality of Durham.
2. Instrument No. DR204808 registered September 2, 2003, being a Notice of Lease
between BCD and Cara Operations Limned.
3. Instrument No. DR5D3434 registered May 26, 2006, being a Notice of Servicing
Agreement as to Parts 1, 2, 3, 4, 5, 7, 8, 9, 10, 11, 12, 15, 19 and 23 on Plan 40R-24250
between The Regional Municipality of Durham and BCD
4. Instrument No. DR506419 registered June 5, 2006, being a Notice as to Parts 1, 2, 3, 4,
5, 7, 8, 9, 10, 11, 12, 15, 19 and 23 on Plan 40R-24250 belween The Regional
Municipality of Durham and BCD
5. Instrument No. DR506420 registered June 5, 2006, being a Transfer of Easement from
BCD to The Regional Municipality of Durham.
6. Instrument No. DR554974 registered November 2, 2006, being a Notice between BCD
and 4246551 Canada Inc. and 220 Real Estate Limned Partnership/Societe en
Commandite and 220 Immobiliere (Firm Name).
7. Instrument No. DR555028 registered November 2, 2006, being a Notice by The
Corporation of the Municipality of Clarington.
8. Instrument No. DR555054 registered November 2, 2006, being a Notice by The
Corporation of the Municipality of Clarington.
9. Instrument No. DR730123 registered July 17, 2008, being an Application to Annex
Restrictive Covenants by BCD
10. Instrument No. DR730126 registered July 17, 2008, being a Notice between BCD and
Shell Canada Limned.
11. Instrument No. DR806089 registered May 19, 2009, being a Construction Lien in the
amount of $389,127.00 registered by Gibson Associates 1997 ttd.
PIN 26644-0282(LT)
12. Instrument No. DR496668 registered May 2, 2006, being a Bylaw of The Corporation of
the Municipality of Clarington to authorize the conveyance of Parts 1 and 2 on Plan 40R-
24112.
13. Instrument No. DR497811 registered May 5, 2006, being a Transfer of Easement from
The Corporation of the Municipality of Clarington to The Regional Municipality of
Durham.
14. Instrument No. DR497926 registered May 8, 2006, being a Bylaw of The Corporation of
the Municipality of Clarington re Parts 1 and 2 on Plan 40R-24112 is hereby declared
surplus and stopped up and closed as a public highway.
23
15. Instrument No: DR503434 registered May 26, 2006, being a Notice of Servicing
Agreement as to Parts 1, 2, 3, 4, 5, 7, 8, 9, 10, 11, 12, 15, 19 and 23 on Plan 40R-2425D
between the Regional Municipality of Durham and BCD
16. Instrument No. DR506419 registered June 5, 2006, being a Notice as to Parts 1, 2, 3, 4,
5, 7, 8, 9, 10, 11, 12, 15, 19 and 23 on Plan 40R-24250 between the Regional
Municipality of Durham and BCD
17. Instrument No. DR506420 registered June 5, 2006, being a Transfer of Easement ftom
BCD to The Regional Municipality of Durham.
18. Instrument No. DR554974 registered November 2, 2006, being a Notice between BCD
and 4246551 Canada Inc. and 220 Real Estate Limited Partnership/Societe en
Commandde and 220 Immobiliere (Firm Name).
19. Instrument No. DR555028 registered November 2, 2006, being a Notice by The
Corporation of the Municipality of Clarington.
20. Instrument No. DR555054 registered November 2, 2006, being a Notice by The
Corporation of the Municipality of Clarington.
21. Instrument No. DR730123 registered July 17, 2008, being an Application to Annex
Restrictive Covenants by BCD.
22. Instrument No. DR730126 registered Juty 17, 2008, being a Notice between BCD and
Shell Canada Limited.
23. Instrument No. DR806089 registered May 19, 2009, being a Construction Lien in the
amount of $389,127.00 registered by Gibson Associates 1997 Ltd.
PIN 26644-0283(LT)
24. Instrument No. DR553512 registered October 30, 2006, being a Transfer of Easement
from Shell Canada Limited to The Regional Municipality of Durham.
25. Instrument No. DR730123 registered July 17, 2008, being an Application to Annex
Restrictive Covenants by BCD
26. Instrument No. DR730126 registered July 17, 2008, being a Notice between BCD and
Shell Canada Limited.
27. Instrument No. DR730127 registered Juiy 17, 2008, being a Notice between BCD and
4246551 Canada Inc. and 220 Real Estate Limited Partnership/Societe en Commandite
and 220 Immobiliere.
28. Instrument No. DR806089 registered May 19, 2009, being a Construction Lien in the
amount of $389,127.00 registered by Gibson Associates 1997 Ltd.
PIN 26644-0277(LT)
1. Instrument No. N162778 registered November 13, 1990, being a Transfer of Easement
to The Regional Municipality of Durham.
2. _ Instrument No. DR204808 registered September 2, 2003, being a Notice of Lease
between BCD and Cara Operations Limited.
24
3. Instrument No. DR503434 registered May 26, 2006, being a Notice of Servicing
Agreement as to Parts 1, 2, 3, 4, 5, 7; 8, 9, 10, 11, 12, 15, 19 and 23 on Plan 40R-24250
between the Regional Municipality of Durham and BCD
4. Instrument No. DR506419 registered June 5, 2006, being a Notice as to Parts 1, 2, 3, 4,
5, 7, 8, 9, 10, 11, 12, 15, 19 and 23 on Plan 40R-24250 between The Regional
Municipality of Durham and BCD
5. Instrument No. DR506420 registered June 5, 2006, being a Transfer of Easement from
Bomanville Creek Developments Inc. to The Regional Municipality of Durham.
6. Instrument No. DR554974 registered November 2, 2006, being a Notice between BCD
and 4246551 Canada Inc. and 220 Real Estate Limited Partnership/Societe en
Command'Re and 220 Immobiliere (Firm Name).
7. Instrument No. DR555028 registered November 2, 2006, being a Notice by The
Corporation of the Municipality of Clarington.
8. Instrument No. DR555054 registered November 2, 20D6; being a Notice by The
. Corporation of the Municipality of Clarington.
9. Instrument No. DR730123 registered July 17, 2008, being an Application to Annex
Restrictive Covenants by BCD
t0. Instrument No. DR730126 registered July 17, 2008, being a Notice between BCD and
Shell Canada Limited.
11. Instrument No. DR806089 registered May 19, 2009, being a Construction Lien in the
amount of $389,127.00 registered by Gibson Associates 1997 Ltd.
SCHEDULES
zs
Additional Terms and Conditions of
Purchase Atreement
The Purchase Agreement arising from the exercise of the Option shall contain the
following terms and conditions:
1. Taxes and rent shall be apportioned between the Parties and allowed to the Completion
Date, as same may be extended pursuant to the terms of this Schedule.
2. The Municipality shall be permitted until the Completion Date, as same may be extended
pursuant to the terms of this Schedule, to search title to the Property. Title to the Property
shall be free and clear from all restrictions, charges, liens and encumbrances, save and
except for:
(a) any registered. municipal agreements and registered agreements with publicly
regulated utilities, providing such have been complied with or security has been
posted to ensure compliance and completion, as evidenced by a letter from the
relevant municipalty or regulated utility;
(b) +any minor easement for the supply of domestic utility or telephone services to any
part of the Property (as defined in the Option Agreement) or adjacent property;
(c) liens fortaxes, rates, assessments or governmental or public utility charges orlevies
not yet due and payable;
(d) any reservations, limitations, provisos and conditions expressed in the original grant
from the Crown, as same may be varied by statute;
(e) the limitations, qualifications and reservations set out in Section 44 of the Land
TdlesAct(Ontarto) (the "LTA's, save and except paragraph (1)6 (construction liens),
paragraph (1)11 (subdivision control), paragraph (1)14 (dower rights), provincial
succession duties and escheats or forteiture to the Crown, and Subsection 44(6);
26
(f) the rights of any person who would as at June 26, 2000, but for the provisions
of the LTA, be entitled to land or any part of ft through length of adverse possession,
prescription, misdescription or boundaries settled by convention;
(g) any registration of any nature or kind which appears on title to the Property as at
August 12, 2009 and any agreement with the Municipality orthe Region of Durham
registered subsequent to the date.
3. If, within the time provided, any valid objection to title is made in writing to BCD or its
solicitor which BCD is unable to remove, remedy or satisfy by the Completion Date and
which the Municipality will not waive, then the Municipality, at its option, from time to time,
may extend the Completion Date, by giving notice in writing to BCD or its solicitor setting
forth such extended Completion Date. Until the extended Completion Date, BCD shall seek
to resolve or satisfy all such objections to title in good faith .and diligently. Save as to any
valid objection so made and, except for any objection going to the root of title, the
Municipality shall be conclusively deemed to have accepted BCD's title to the Property.
4. If BCD has been unable to remove, remedy or satisfy any valid objection to title by the
Completion Date, as same may have been extended pursuant to the terms of this Schedule,
then the Municipality, at tts option, may deliver Notice of Expropriation pursuant to the
Expropriations Act, and BCD agrees not to dispute such Notice of Expropriation. The
Municipality may thereafter register a Plan of Expropriation and BCD agrees that,
notwithstanding the date of registration of such Plan of Expropriation, the compensation
payable to BCD as the owner of the Property shall be the nominal amoum of two ($2.00)
dollars.
5. The Purchase Agreement shall be binding on the Municipality and BCD and their respective
administrators, assigns and successors. It shall enure to the benefit of the Municipality, its
administrators, assigns and successors.
fi. On the Completion Date, the Municipality shall be paid the amount, if any which shall be
necessary for the Municipality to pay to the Receiver General for Canada in order to satisfy
the Municipality's liability in respect of tax payable by BGD under the non-residency
provisions of the Income Tax Act by reasons of the exercise of the Option. The Municipality
shall not claim such credit if BCD delivers, on the Completion Date, the prescribed
z~
Certificate or a Statutory DeGaration that it is not then anon-resident of Canada.
BCD shall also deliver on the Completion Date to the Municipality evidence of compliance of
the transaction with the Family Law Act, as amended or replaced from time to time.
7. The Transfer/Deed, save forthe Land Transfer TaxAffidavit, shall be prepared in registrable
form at the expense of the Municipality.
8. Time shall, in all respects, be of the essence of the Purchase Agreement, provided that the
time for doing or completing any matter provided for herein may be extended or abridged by
an agreement in writing signed by the Municipality and BCD or bytheir respective solicitors
who are expressly appointed in this regard.
9. .The Property shall be and remainUntil completion of the Purchase Agreement at the risk of
BCD.
10. The Purchase Agreement shall be governed by the laws of the Province of Ontario.
Schedule 4
28
Site Plan
Site Plan SP-1 July, 2009 August 5, D.G. Biddle & Associates Limited
Part 1 & 2 2009
Landscape Plan L1 of 3 July 8, August 5, Strybos Barron King Landscape
2004 2009 :Architect
ure
Channel Landscape Plan: L2 of 3 August 25, July 28, 2009 Strybos Barron King Landscape
Sections & Construction 2005 Architecture
Details
Construction Details L3 of 3 August 25, July 29, 2009 Strybos Barron King Landscape
2005 Architecture
Site Plan Lighting Layout E-01 August July 27, 2008 Leipciger Kaminker Mitelman
2005 & Partners Inc.
Site Plan Lighting E-04 August July 27, 2006 Leipciger Kaminker Mitelman
Calculations 2005 & Partners Ina
Site Grading Plan SG-1 July 2009 August 5, D.G, Biddle & Associates Limited
.Part 1 2009
Site Grading Plan SG-2 July 2009 August 5, D.G. Biddle & Associates Limned
Pan ~ ~nno
Site Servicing Plan
Part 2
Storm Sewer Drainage
Scheme
Sediment and Erosion
Control Plan Part 1
Sediment and Erosion
Control Plan Part 2
Pavement Marking ani
Sicnaoe Plan Part 1
SS-2 July 2009
SD-1 July 2009
5, I D.G. Biddle & Associates Limited
5. D.G. Biddle & Associates. Limited
2009
5, I D.G. Biddle & Associates Limited
5. D.G. Biddle & Associates Limited
,
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i Schedule 5
Conditions of Stte Plan Aooroval
CONDITIONS OF APPROVAL
The following are the conditions of approval of the Site Plan, Pions and Drawings:
The Owner shall enter into a development agreement with the Municipality of Clarington
dealing with and ensuring the provision and of all the faalit'res, works and matters which
either are shown on the approved Sife Plan, Plans and Drawings or are referred to in these
conditions, including the maintenance of them, as provided in Subsection 47 (7xb) of the
Planning Act The agreement shall conffiin sffindardlreasonable provisions. by which
performance guarantees to the satisfaction of the Municipality of Clarington will be provided
by the Owner
2.' Before any development takes place, applications will be made to amend the overall site
plan for fhe subsequent approval of drawings foreech building, as stipulated in Section 41 of
the Planning Act, R.S.O. 1990, c.P.13 as amended, and the owner also agrees to enter into
amending site plan agreements as required with fhe Municipality of Clarington for any and all
buildings to be constructed on site.
3. Garbage must be stored internally for all builidngs due to their visibility from adjacent
roadways. A separate garbage building will be permited only for building D provided that it is
architecrturally designed to match the main building and for any other building that the
Municipality of Clarington deems aproprlate.
4. The Owner shall transfer to the Municipality of Clarington for a nominal consideration free
and clear of encumbrances and restrictions, Part 26 on Reference Plan 40R-24250 for
entrance feature purposes, as shown on the Landscape Plan (Drawing Lt of 3).
5. The Owner shall obtain an access permit from the Regional Municipality of Dufiam for
property access from Waverly Road for the development of the site in accordance with the
Site Plan (Drawing SP-1).
6. All works and services, except Regional Municipality of Durham works and services, shall be
designed and constructed in accordance with the Municipality of Clarington Design Criteria
and Standard Drawings.
7. The Owner shall submit six (6) copies of the detailed Servicing/Grading Plans to the
Regional Municipality of Dufiam for approval.
8. The Owner shall make application and obtain permission for connection to Regional
Municipality of Dufiam services and deposit monies required for the installation of Regional
services to the site's property line.
9. The Owner shall obtain written permission from the Central Lake Ontario Conservation
Authority ("CLOG") under Ontario Regulation 42/06, the Authority's Fill Construction and
Alteration to Waterways Regulation, prior to commencing any filling or grading on site.
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10. The portion of the lands located east of the Spry Avenue extension shall not be devebped
until such time as the Director of Planning Services has received written not cation that the
lands have been filled to an acceptable elevation to the Central lake Ontario Conservation
Authority and in accordance with the requirements of the Central Lake Ontario Conservation
Authority Permit No. C08-039 dated April 7, 2008:
11. The Owner shall obtain CLOC's approval of the Sediment and Erosion Control Plan
{Drawings ES-1 and ES-2) for the site to implement the stormwater management measures
as described in the report titled °Bowmanville Creek Developments, Bowmanville
Commercial Plaza, Baseline Road, Municipality of Cladngton, Stonnwater Management and.
Site Servicing Report" as prepared by D.G. Biddle 8 Associates Limited, dated July 2004
and revised August 2005, as approved by CLOC, Ministry of Transportation, and Municipality
of Clarington's Director of Engineering Services.
12: The Owner agrees to install a 1.5-meter chain link fence on the easterly boundary of the
Private Open Space Amenity Area zoned "(H) EPt6" in the Zoning By-law 84-63 of the
Former Town of Newcastle.
13. The Owner agrees to implemen# all development and operational recommendations
contained a report titled °Environmental Impact Study" prepared by Aquafor Beech, dated
December 2005 as finally approved by the Municipality of Clarington and Central Lake
Ontario Conservation.
14. The Owner agrees to install the approved full cut-0ff lighting as indicated on the Site Plan
Lighting Layout (Drawing E-01) dated August 2005 and Site Pian Lighting Calculations
(Drawing E-04}dated August 2005 as prepared by Leipciger Kaminker Mitelman & Partners
Inc. and revised on July 27, 2008 and July 27, 2D06 respectively. Once al! of the new site
lighting has been installed on the subject (ands, the Owner agrees to obtain a latter from the
project's lighting engineer certifying thatthe lighting has been installed in accordance wffh the
Site Plan Lighting Layout (Drawing E-01) dated August 2005 and Site Pian Lighting
Calculations (Drawing E-D4) dated August2005 as prepared by Leipciger Kaminker Mitelman
& Parthers Inc. and revised on July 27, 2008 and July 27, 2006 respectively.
15. The Owner shall provide the necessary 2°k parkland dedication as a cash payment to the
Municipality of Claringfon in lieu of parkland dedication pursuant to Ciarington Municipal By-
law no. 35.104. The market value of the lands for Part 26 on Reference Plah 40R-24250,
shall be deducted from the Owner's cash in lieu payment requirement.
16. Prior to commencing any work on sfte, the Owner shall provide the Municpality of Clarington
with a $10,000.00 road damage deposit for works associated with Baseline Road.
17. The Owner shall deliver a performance guarantee satisfactory to the Director of Planning
Services for all landscaping works associated with the storm water channel and with areas
not associated with buildings. Additionally, the Ownershali delivers performance guarantee
to the Municipality for landscaping works associated with each building approved bysite plan
amendment as referred to in condition 2. Final cost estimates must be provided by the
Owner to the Director of Planning Services for his approval.
18. The Owner agrees to instatl and maintain oil grit separators to the satisfaction of Central
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Lake Ontario Conservation and the Director of Engineering Services.
19. The Owner agrees to obtain all necessary sign permits from the Municipality of Clarington
and the Ministry of Transportation.
20, The Owner agrees topay to the Municipality of Clarington the reasonable fees incurred after
August 10, 2009 for the preparation and registration of the site plan agreement.
21. The Owner shall nol release or abandon any of its rights underthe easement transferred to
the Owner by Shell Canada Limited by Instrument No. DR730124 registered in the Land
Registry Office for the Land Titles Division of Durham (No. 40) on July 17, 2008. The Owner
shall construct, reconstruct and maintain an access road open to the public from Waverly
Road as shown an the Site Plan (Drawing SP-1) dated July, 2009 as prepared by D.G.
Biddle & Assoaates and revised on August 5, 2009.