Loading...
HomeMy WebLinkAboutADMIN-14-95 Addendum REPORT #3 THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON REPORT Meeting: COUNCIL Fife # / Res. # Date: July 29 1996 By-law # Report #: ADDENDUM TO ADMIN. 14-95 File #: Subject: OLDER ADULT CENTRE AND HIGHWAY NO. 2 URBANIZATION WORK Recommendations: It is respectfully recommended that Council approve the following: (1) THAT the references in the recommendations contained in Report #Admin. 14- 95 to the Older Adult Centre in the proposed Durham Region Housing Authority project on Temperance Street, Bowmanville, be amended to refer 'to the proposed Older Adult Centre within the Municipality of Clarington. (2) THAT the text of Section 6 of Report #Admin. 14-95 (attachment #1) be deleted and the payments now due under the Agreement of November 26, 1990 be required to be paid (attachment #2, $150,000 escalated to approximately $210,000). When this payment is received, $100,000 of it is recommended to be committed by Council to the cost of urbanization of Highway No. 2. (3) THAT Section 8.7(b) and (c) of Report #Admin. 14-95 be deleted and replaced with the following: "(b) provide in the amendment to the Aspen Springs Subdivision Agreement or if considered appropriate by myself in consultation with the Solicitor in a separate agreement with Martin Road Holdings Limited and West Bowmanville Developments Ltd. which is to be executed prior to the amendment to the Aspen Springs Subdivision Agreement referred to in (a), for the payment to the Municipality $1,500,000 in five (5) equal annual instalments of $300,000 each, the first and second instalments REPORT NO. ADMIN-14-95 PAGE 2 to be paid on April 24, 1997 together with interest calculated on the amount of $300,000 at the rate of 6% per annum prorated from and including April 24, 1996; (c) require each of the instalment and interest payments referred to in (b) when paid to the Municipality to be deposited in the Hydro Reserve Fund Account." 1 . INTRODUCTION 1 .1 Council approved the recommendations contained in Report #Admin. 14-95 at its meeting on April 24, 1995. (Attachment #1) The recommendations included: • The deletion of the "C.P.R. Underpass Work" from the Aspen Springs Subdivision Agreement. • The acceptance of a financial contribution of $1 .5 million from Martin Road Holdings Limited and West Bowmanville Developments Ltd. on the terms and conditions set out in the report. • The approval of the contribution of the Older Adult Centre at a cost of $1 .3 million in conjunction with the then proposed Durham Region Non- Profit Housing Authority project on Temperance Street in Bowmanville. • The provision of interim funding of $1 .3 million for the Older Adult Centre and $200,000 for urbanization work on a portion of Highway No. 2 in the Bowmanville East Main Central Area from the Hydro Reserve Account. • The commitment of $100,000 to be paid by Markborough Properties Inc. and West Bowmanville Developments Ltd. in respect of the extension of water service to the Garnet B. Rickard Recreation Complex when it is paid to the cost of the urbanization of Highway No. 2. 1 .2 The financial contribution of $1 .5 million was to be paid in 5 equal annual instalments of $300,000 each, the first of which was to be paid on April 24, 1996. Each instalment when paid was to be deposited in the Hydro Reserve Fund Account. The financial contribution of Martin Road Holdings Limited and West Bowmanville Developments Ltd. was to be secured by an unconditional and irrevocable letter of credit to be deposited with the Municipality. REPORT NO. ADMIN-14-95 PAGE 3 1 .3 With the change in the Provincial Government, the Durham Region Non-Profit Housing Authority project on Temperance Street in Bowmanville was cancelled. Council selected an alternative site for the Older Adult Centre on property owned by Vanstone Mill Inc. at King and Scugog Streets in Bowmanville by its adoption of Resolution #GPA-684-95 approving Report#Admin. 34-95. (Report #Admin. 15-96 updated Council on the status of this project.) 1 .4 The urbanization work on Highway No. 2 will proceed in 1996. Security has been posted with the Municipality by Willsonia Industries Ltd. and Clarington Place Limited for Willsonia's share of the cost of the urbanization work. A draft Subdivision Agreement between the Municipality and 829426 Ontario Inc. and 838038 Ontario Inc. (the shareholders of which are Markborough Properties Inc. and West Bowmanville Developments Ltd.) has been delivered to the parties. When settled and executed it will provide for the posting of security with the Municipality for those companies' share of the cost of the urbanization work. 1 .5 A draft Agreement to implement Report #Admin. 14-95 by amending the Subdivision Agreement with Martin Road Holdings Limited and West Bowmanville Developments Ltd. has been prepared. It has yet to be executed by the owners. 1 .6 Since the amending Agreement between the Municipality and Martin Road Holdings Limited and West Bowmanville Developments Ltd. has not been executed, the first instalment payment of $300,000 of the $1 .5 million financial contribution has not been made to the Municipality. Also, the $150,000 plus the "Escalated Amount" for a total of approximately $210,000 which is to be paid by Markborough Properties Inc. and West Bowmanville Developments Ltd. under the water extension agreement is now due. 1 .5 With the above changes in circumstance, it is desirable for Council to review and where necessary and appropriate, to approve revisions of the recommendations contained in Report #Admin. 14-95 as outlined herein. 2.0 OLDER ADULT CENTRE 2.1 Following the cancellation of the proposed Temperance Street, location of the Older Adult Centre, the Municipality called for new proposals. Report #Admin. 34-95 dated December 2, 1995 recommended as the preferred proposal that submitted by Vanstone Mill Inc. Authority was given to negotiate an agreement with Vanstone Mill Inc. for the transfer of a site on Scugog Street, Bowmanville, with an Older Adult Centre to be constructed on a turn-key basis. REPORT NO. ADMIN-14-95 PAGE 4 1 will be reporting in the near future, recommendations with regards to the Senior Centre within the Municipality of Clarington. 3.0 WATER SERVICE CONTRIBUTION OF WEST BOWMANVILLE DEVELOPMENTS LTD. AND MARKBOROUGH PROPERTIES INC. 3.1 The contribution of $150,000 plus the "Escalated Amount" became due and payable on March 24, 1996 the "Date of Final Approval of the Zoning Amendment" for the proposed Markborough Shopping Centre pursuant to the terms of the Agreement between the Municipality and the above companies dated November 26, 1990. $150,000 is secured by a Letter of Credit deposited with the Municipality, and the escalated value includes interest, calculated to date. 4.0 ASPEN SPRINGS SUBDIVISION AGREEMENT 4.1 As noted above the first instalment of $300,000 which is part of the financial contribution of West Bowmanville Developments Ltd. of $1 .5 million referred to in Section 8 of Report #Admin. 14-95 was due on April 24, 1996. Mr. William Daniell has requested that the Municipality defer the payment of the first instalment to April 24, 1997 on which date both the first and second instalments (that is, a total of $600,000) will be paid together with interest on $300,000 calculated at 6% per annum from and including April 24, 1996 to the date of payment. I recommend that Council approve Mr. Daniell's request in consideration of the delay in construction of the Senior Centre and the subsequent signing of the Agreement. 5. The Treasurer has been consulted on above and concurs with the recommendations. Respectfully submitted, -6egS7-1� W. H. Stockwell Chief Administrative Officer att. REPORT NO. ADMIN-14-95 PAGE 5 Attachment #1 to Addendum report THE -CORPORATION OF THE MUNICIPALITY OF CLARINGTONte ADM 14- 95 REPORT Meeting: CMUCIL F�9 Dig: APRIL 24 1995 k ADM.14-95 He k BY-Lew _ �ubJect; OLDER ADULT CENTRE AND HIGHWAY NO. 2 URBANIZATION WORK Recommendations: It is respectfully recommended that Council approve the following: (1) THAT Report No. ADMN-14-95 be received; and (2) THAT Council approve amendments to the Aspen Springs Subdivision Agreement to delete the requirement that the Owner construct the "CPR Underpass Work" and the requirement that the Owner deposit Letters of Credit with the,Municipality as security for the construction of the Work,on the conditions as outlined in this report; and (3) THAT Council accept a financial contribution from Martin Road Holdings Limited and West Bowmanville Developments Ltd. in the amount of $1.5 million on the terms and conditions set out in this report; and (4) THAT Council approve the construction of the Older Adult Centre, at a cost of$1.3 million, in conjunction with the proposed Durham Region Non-Profit Housing Authority project to be built on Temperance Street in Bowmanville; and (5) THAT Council-commit $200,000 of said contribution of$1.5 million to the cosy of the urbanization work on Highway No. 2; and (6) THAT Council approve the provision of interim funding of$1.3 million for the Older Adult Centre and $200,000 for urbanization work on Highway No. 2 referred to in recommendations (4) and (5) from the Hydro Reserve Fund Account; and (7) THAT when instalments are paid to the Municipality in respect of the financial contribution of$1.5 million referred to in recommendation (2) they be deposited in the Hydro Reserve Pund Account; and REPORT NO. ADMIN-14-95 PAGE 2 (8) THAT Council approve the commitment of the amount of $100,000 which is to be paid by Markborough Properties Inc, and West Bowmanville Developments Ltd. in respect of the extension of water service to the Garnet B. Rickard Recreation Complex when it is paid pursuant to this report, to the cost of urbanization of Highway No. 2; and (9) THAT Council approve the agreements and amending agreements recommended in this report and pass the necessary by-laws to authorize the same being executed by the Mayor and Clerk on behalf of the Municipality; and (10) THAT the Treasurer be authorized to accept the deposit of the Letters of Credit and return the Letters of Credit referred to in the report on the conditions set out in this report; and (11) THAT a copy of this report be sent to: Markborough Properties Inc. Martin Road Holdings Limited and West Bowmanville Developments Ltd. `� - J �v 829462 Ontario Inc, and 838038 Ontario Inc. Willsonia Industries Limited and Clarington Place Limited Durham Region Non-Profit Housing Authority Older Adult Centre Committee L INTRODUCTION 1.1 During the past year the Office of the Chief Administrative Officer has been involved in a number of protracted negotiations involving property acquisitions, commercial developments, recreational facilities, etc., throughout the Municipality. Two of these negotiations that have taken a considerable amount of Staff time are the proposed Older Adult Centre that is being considered in conjunction with the Durham Region Housing Authority on Temperance Street in Bowmanville, and the Urbanization of Highway No. 2 in the area between Regional Road No. 57 and Green Road in Bowmanville. The Highway No. 2 project must be addressed before development can proceed on both the north and south side of Highway No. 2, which was the subject of a recent Ontario Municipal Board hearing. In both cases, Council has directed the Chief Administrative Officer to continue to meet with all the parties involved, in an attempt to identify the necessary funding that would allow these projects to go forward. We now submit the following report that addresses the issue of funding for both projects. REPORT NO. ADMIN-14-95 PAGE 3 2. OLDER ADULT CENTRE 2.1 The proposed Older Adult Centre has been the subject of numerous reports to Council, covering the rezoning of the site-in question, as well as the construction of the 10,000 square foot facility that would form a part of the Durham Region Housing Authority's sixty unit "singles" building proposed for the old "piano factory" site, across from the public library on Temperance Street in Bowmanville. 2-2 As Council knows, the Housing Authority has had approval in principle from the Ministry to construct this project on the proviso that the Municipality of Clarington participates in the project by financing the Older Adult Centre. The Centre would have a gross floor area of 11,600 sq. feet, and a net floor area of 10,000 sq. feet, and will include leasehold improvements, carpet, and air conditioning. The furniture and appliances will be provided by the Clarington Older Adult Centre Committee, who will be responsible for the operation of the Centre. There would be 22 surface parking spaces. By financing the recreation Centre, the Municipality would then hold ownership of approximately 19%of the overall complex. This would compare to the square footage of approx. 16 additional living units. 23 At a meeting held on November 28, 1994, Council passed a resolution directing the Chief Administrative Office to go on record with the Durham Region Housing Authority that the Municipality of Clarington approves, in principle, of the preliminary architectural drawings showing the proposed 10,000 square foot"seniors' centre", and as well "That the Municipality of Clarington agrees to cover the cost of the 10,000 square foot "seniors' centre" on the proviso that an acceptable financial contribution by the Municipality, either by way of capital investment or long term lease, is agreed upon between the Housing Authority and the Municipality". 2.4 Following those directions, Staff have had numerous meetings with the representatives of the Housing Authority and have identified the Municipality's portion of the capital cost to be $1,300,000. Should Council agree to proceed with this project, the Durham Regional Housing Authority would need a commitment from the Municipality of Clarington that the amount of$1,300,000 would be available for construction purposes. This then would allow the Authority to make a final submission to the Ministry for approval of the project. As previously stated by the Housing Authority, should Clarington decide not to participate in this project, the Ministry will not approve the housing portion of the facility and the project will not proceed. Upon Council's approval of the funding proposal identified later in this report, the Durham Region Housing Authority will immediately proceed with the necessary approvals and would expect to see the project commence construction within the next few months. REPORT NO. ADMIN-14-95 PAGE 4 2.5 On reviewing the financing proposals that are addressed in this report, it should be kept in mind that there is still a possibility of obtaining some type of Provincial grant for the recreation portion of the project, even though we have not been successful to date in receiving a positive answer in this regard from our Regional Representative of the Ministry of Tourism, Culture and Recreation. 'It should also be kept in mind that should the project proceed, the Housing Authority would be paying approximately $150,000 to the Municipality under the Development Charges By-law. This amount, could not be addressed as a portion of the Municipality's funding, as it must be directed to the Development Charges Reserve Fund. However, it should be considered a "plus" in the overall financial assessment of the project. 3. URBANIZATION OF HIGHWAY NO.2,BOWMANVILLE MAIN CENTRAL AREA 3.1 The transition of Highway No. 2 from a high speed rural cross-section to a low speed urban roadway between Green Road and Martin Road is considered essential to the long term development of the Bowmanville Vilest Main Central Area (B.W.M.C.A.). 3.2 In order to ensure that the Municipality of Clarington's interests in this regard are properly addressed, the Clarington Public Works Department prepared a functional design for the urbanization of the aforementioned section of roadway. 3.3 The functional design provided a framework for the review of proposed developments adjacent to Highway No. 2 and the opportunity to generate a phased approach for the implementation of the required work. 3.4 Two developments, Markborough and Willsonia have been reviewed in this context and works on Highway No. 2 have been identified. 3.5 A section of Highway No. 2 adjacent to the proposed Markborough and Willsonia developments is super-elevated and has no longitudinal fall. These two conditions make urbanization of the roadway at its current grade impossible. - 3.6 The lack of longitudinal grade would result in ponding along proposed curb lines and the super-elevation 4.5% is not suitable geometry for intersecting urban streets. In order to address these issues, a number of alternative solutions were reviewed. The only solution which satisfactorily addressed the long term interests of the Municipality and permits the development of the Markborough and Willsonia lands requires the construction of approximately 565 metres of Highway No. 2 (See Attachment No. 1). The proposed reconstruction involves the lowering of Highway No. 2 in the vicinity of Street W. A low point would be established at the proposed intersection of Highway No. 2 with Street 'B' resulting in a minimum longitudinal grade of 0.5% and removal of the super-elevation. REPORT NO. ADMIN-14-95 PAGE 5 _ 4, PROPOSED FINANCING OF HIGHWAY NO. 2 IMPROVEMENTS 4.1 The cost of the required road work was estimated at $1,090,000.00 in 1994 dollars. This value does not include the cost of providing street lighting and sidewalk, as these services were included in the Municipality's Development Charges By-law. The amount of the estimated costs thereof of the latter services which would be the Municipality's responsibility is $290,000. In addition, traffic signals and storm sewer oversizing would be the responsibility of the developers. The estimated cost of traffic signals to be located at Kings Highway and Street "E" is $100,000. 4.2 Financial negotiations have been ongoing regarding this project. Initially, the adjacent developers were advised that the total cost of the portion of the project necessitated by their developments was to be their responsibility and would be in addition to the costs of works referred to in the servicing agreements they had made with the Municipality. 4.3 The Municipality had entered into the following servicing agreements with the adjacent developers (1) respecting the Markborough Shopping Centre on May 24, 1994 with 829426 Ontario Inc. and 838038 Ontario Inc. and Royal Bank of Canada (the "Markborough Servicing Agreement"), and (2) respecting the Willsonia development also on May 24, 1994 with Willsonia Industries Limited and Clarington Place Limited (the 'Willsonia Servicing Agreement"). We understand that the shareholders of the numbered companies who are parties to the Markborough Servicing Agreement are Markborough Properties Inc. and West Bowmanville Developments IAd. 4.4 Both developers have indicated that they are prepared to move ahead with the necessary approval process. However, considering the protracted hearings regarding the Bowmanville West Main Central Area at the Ontario Municipal Board, the additional cost of the urbanization resulted in both developments reaching a point of questionable financial viability. Both developers clearly stated that should the entire cost of urbanization be left to them, they could not proceed with their proposed development. 4.5 Staff then made contact with the senior staff of the Durham Region Works Department in an attempt to see if there was some way the Region could participate financially in the urbanization project, given the fact the Highway No. 2 was turned over to Durham Region by M.T.O, on January 1, 1995. After lengthy negotiations, the Regional Staff agreed to recommend to Regional Council that they participate in this project to the amount of $240,000. 4.6 Once the Regional Staff commitment was obtained, further discussions took place with the two developers and commitments were obtained for contributions to the REPORT NO. ADMIN-14-95 PAGE 6 project of $400,00 from Markborough Properties Inc. and West Bowmanville Developments Ltd., on the one hand and $250,000 from Willsonia, on the other hand, for a total amount of $$90,000 towards the total cost of $1,190,000, leaving a shortfall of $300,000. 4.7 Staff recommend that Council approve amendments to the Markborough and the Willsonia Servicing Agreements, respectively, to give effect to these commitments unless alternative legal arrangements satisfactory to the Region of Durham are made directly with the Region to secure these commitments. 4.$ With respect to the cost of storm sewer oversizing on Highway No. 2, in the storm sewer accommodating flow from the north side of Highway No.2 from the Willsonia and other lands under Highway No. 2(the"Highway No.2 Storm Sewer Oversizing") to connect with the storm sewer to be constructed under the Markborough Servicing Agreement,it is recommended that Council approve an amendment to the Willsonia Servicing Agreement to provide that Willsonia Industries Ltd. and Clarington Place Limited will fund the cost of the Highway No. 2 Storm Sewer Oversizing. 5. FINANCING OF SHORTFALL IN FUNDING OF HIGHWAY NO. 2 IMPROVEMENTS 5.1 Considering the fact that the Municipality owns land on the north side of the portion of Highway No. 2 in question, namely the municipal fire hall and the Garnet B. Rickard Recreation Complex, both developers felt that the Municipality should finance the additional $300,000 in order to have the project proceed immediately, thereby allowing both Markborough and Willsonia to commence construction in 1995. 5.2 In an attempt to identify additional municipal funding for the road project, Staff revisited the past financial commitments made by all of the developers in the general area. On reviewing same we identified two past agreements that may be a source of funding for the Municipality to participate in the Highway No. 2 urbanization, should Council wish to see the project and the developments proceed this year. These are agreements respecting a water service contribution provided for in conjunction with the rezoning to permit the Canadian Tire Store, and the Aspen Springs Subdivision Agreement. & WATER SERVICE CONTRIBUTION OF WEST BOWMANVILLE DEVELOPMENTS LTD. AND MARKBOROUGH PROPERTIES INC. 6.1 The former Town of Newcastle made an agreement dated November 26, 1990, with Markborough Properties Inc. and West Bowmanville Developments Ltd.under which the cost to the municipality of extending water service to the Garnet B. Rickard REPORT NO. ADMIN-14-95 PAGE 7 Recreation Complex would be defrayed by a contribution from the companies of $300,000. The two companies benefited from this municipal expenditure by being able to extend the water service to the Canadian Tire Store and the proposed Markborough Shopping Centre from the Recreation Complex. One hundred and fifty thousand dollars was paid to the Municipality on the execution of the agreement and was deposited in the Arena Reserve Fund Account. Payment of the balance of $150,000 is to be made when a building permit is issued for the proposed Markborough Shopping Centre. It is secured by Letters of Credit which is deposited with the Municipality. 6.2 Since people using the Recreation Complex will benefit from the urbanization of Highway No. 2, Staff are of the opinion that it would be fair to apply $100,000 of the balance of$150,000 secured by Letters of Credit deposited with the Municipality to defray part of the cost of the improvements to Highway No. 2. Accordingly, Staff recommend that subject to the concurrence of the parties to the agreement dated November 26, 1990 between the former Town of Newcastle, Markborough Properties Inc. and West Bowmanville Developments Ltd., be amended: (1) to provide for a reduction in the security for the payment to defray part of the cost of extending the water service which is now deposited with the Municipality to the amount of$50,000 which is payable on issuance of a building permit for the proposed Markborough Shopping Centre; (2)to require Markborough Properties Inc. and West Bowmanville Developments Ltd. to pay $100,000 to the Municipality to defray part of the cost of Highway No. 2 improvements within 30 days following the commencement of the construction of these improvements; and (3)to require the deposit of new irrevocable and unconditional Letters of Credit or amendments to Letters of Credit presently deposited with the Municipality to secure performance of the revised obligations of the companies. The Letters of Credit are to be issued by a bank listed in Schedule 1 of the Bank Act, in amounts; in a form and with a content satisfactory to the Treasurer. 7. UNFUNDED COSTS OF HIGHWAY NO. 2. IMPROVEMENTS 7.1 Should Council agree with Staff's last recommendation in this regard, the unfunded balance of the Highway No.2 project would be $200,000 in addition to the unfunded cost of $1,300,00 for the Older Adult Recreation Centre. This report will go on to deal with the immediate and longer terra sources of these amounts. 8. ASPEN SPRINGS SUBDIVISION AGREEMENT 8.1 In consultation with Mr. Dennis Hefferon, the Municipality's Solicitor, Staff have reviewed the conditions of draft plan approval of the West Bowmanville Developments Ltd, subdivision located between Green Road and Regional Road No. 57, south of the CPR tracks (Plan 1$T-86046 - Aspen Heights), relative to the REPORT.NO. ADMIN-14-95 PAGE 8 construction of the grade separation proposed at the intersections of future Street"C" and the CPR and the Aspen Heights Subdivision. One of the conditions of the draft plan approval was that "the Owners shall agree to reserve Blocks 342 and 347 for railway underpass and to address construction to the satisfaction of the Town of Newcastle." 8.2 The Aspen Springs Subdivision Agreement between the former Town of Newcastle and Martin Road Holdings Limited and West Bowmanville Developments Ltd. and certain mortgagees provides: "With respect to the 'CPR Underpass Work', without derogating from the provisions of paragraph 5.27 of this Agreement, the Owner agrees at its cost to commence to construct this work no later than the day on which an application is made for a building permit for a building which is or includes the 661st dwelling unit proposed to be constructed on the lands and to complete the same in accordance with this Agreement." 8.3 It should be noted that a grade separation may also be constructed by the Municipality at the intersection of Green Road and the CPR at a future tune. 8.4 Staff have considered the provisions of the Aspen Springs Subdivision Agreement as well as the proposal for the future construction of an underpass at the intersection of Green Road and the CPR tracks. Although the Municipality's Final Report on the Transportation Analysis for the Bowmanville Main Central Area Study stated, "All the network alternatives show an extension of the north-south collector road through a railway underpass to link with Aspen Springs Drive on the south side of the CPR tracks, this could serve as an alternative access route for West MCA traffic heading to Martin Road, instead of having to use Highway No. 2. However, consideration should be given to the impact of increased traffic on residential streets south of the railway tracks.", the Director of Planning and Development has some concern with the proposal of not proceeding with the construction of the underpass. However, staff with the exception of the Director of Planning and Development have concluded that it is not necessary in order to protect the Municipality's interest in the proper functioning of the existing and future street system both north and south of the CPR tracks and both east and west of Green Road that the "CPR Underpass Work" he constructed as provided for in the Aspen Springs Subdivision Agreement. 8.5 It is recommended that conditional on financial arrangements being agreed to by Martin Road Holdings Limited, West Bowmanville Developments Ltd., 829426 Ontario Inc. and 818038 Ontario Inc. and all necessary parties executing the agreements and depositing the securities referred to in this report, Council approve an amendment to the Aspen Springs Subdivision Agreement to delete the requirement that the Owner construct the "CPR Underpass Works". REPORT NO, ADMIN-14-95 PAGE 9 8.6 Should Council agree with this recommendation, the developer of the Aspen Springs project, through Mr. William Daniel, has agreed to make an outright contribution to the Municipality of Clarington in the amount of $1.5 million, to be used by the Municipality for the purpose recommended in this report. 8.7 Accordingly, it is recommended that Council: (a) approve an agreement to amend the Aspen Springs Subdivision Agreement between the Municipality, Martin Road Moldings Limited, West Bowmanville Developments Ltd, Robert Louis Stevens and Royal Bank of Canada dated September 8, 1991., as amended, to delete the requirement that the Owners construct the"CPR Underpass Work"and provide security to the Municipality for the performance of the Owners' covenant to do so; (b) provide in the amendment to the Aspen Springs Subdivision Agreement or if considered appropriate by myself in consultation with the Solicitor in a separate agreement with Martin Road Holdings Limited and West Bowmanville Developments Ltd, which is to be executed prior to the amendment to the Aspen Springs Subdivision Agreement referred to in (a), for the payment to the Municipality $1,500,000 in five (5) equal annual instalments of$300,000 each, the first instalment to be paid on April 24, 1996; (c) require each of the instalments referred to in (b) when paid to the Municipality to be deposited in the Hydro Reserve Funds Account; (d) require the deposit with the Municipality's Treasurer as alternative security for the performance of the obligations set out above unconditional and irrevocable Letters of Credit issued by a bank listed on Schedule 1 of the Bank Act in amounts, in a form and with a content satisfactory to the Treasurer. (e) authorize the Treasurer to return to the Owners the Letters of Credit deposited with the Municipality in respect of the "CPR Underpass Works" conditional on the alternative security set out in (d) being deposited with the Municipality; 9. INTERIM FUNDING REQUIREMENT'S FOR OLDER ADULw RECREATION, CENTRE AND $200,000 OF THE COST OF THE HIGHWAY NO. 2 IMPR.OiVEMENTS 9.1 It is recommended the interim funding requirements to proceed with the Adult Recreation Centre ($1.,3 million) and $200,000 of the cost of the Highway No. 2 improvements should b obtained by accessing the Hydro Reserve Funds for the REPORT NO. ADMIN-14-95 PAGE 10 amount of $1.5 million, on the condition that this amount will be replaced over the next five years upon the payment of the $1.5 million under the revised Aspen Springs Subdivision Agreement or the agreement between the parties referred to above. 10. TERMS OF AGREEMENTS 10.1 It is recommended all agreements to implement the recommendations contained in the report shall contain provisions considered to be necessary to protect the Municipality's interests by myself in consultation with the relevant Staff and the Municipality's Solicitor_ 11. CONCLUSION AND RECOMMENDATIONS 11.1 This report addresses the funding requirements for the Older Adults' Recreation Centre and the urbanization of Highway No.2 to permit the Markborough Shopping Centre and the Willsonia developments to be commenced this year. It is recommended that this report approve the making of agreements and other actions set out in it be approved by Council. 11.2 By adopting the recommendations of Staff Council would accomplish the construction of the Older Adult Centre, as well as the completion of the Highway No. 2 Urbanization Work without having an adverse affect on the municipal budget. 11.3 The completion of the Highway No. 2 work would then allow the developers to proceed with their commercial projects as an early date, resulting in a positive impact on the municipal assessment base. Respectfully submitted, W�H;. St' e Chief Administrative Officer Attachment #2 to Addendum to Report ADMIN.14-95 THIS AGREEMENT made as of this 26th day of November, 1990. B 'TWEEN: MARKBOROUGH PROPERTIES INC. and WEST BOWMANVILLE DEVELOPMENTS LTD (hereinafter called the "Owners") OF THE FIRST PART - and THE CORPORATION OF THE TOWN OF NEWCASTLE (hereinafter called the '"Town") OF THE 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/N (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 THREE HUNDRED THOUSAND ($300,000.00) DO Swill be paid by the Owners to the Town as set out in this Agreement; (?t U—) 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 THREE HUNDRED THOUSAND ($300,000.00) DOLLARS payable as follows: a) The sum of ONE HUNDRED AND FIFTY 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 FIFTY 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 eu+ 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 FIFTY 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 Owners undrawn upon and without deduction, forthwith after the day on which the Owners pay the Town the sum of ONE HUNDRED AND FIFTY 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 FIFTY THOUSAND ($150,000.00) DOLLARS plus the Escalated Amount which is required to be paid by the Owners to the Town pursuant to paragraph 1(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 1(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 Town, the Letter of Credit or the Renewal thereof, then in effect, shall be-paid forthwith by X To 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 1(a) 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. 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. 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 FIFTY 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 n ��a to ate-including the date on which the calculation in question is made, provided that in the Owners 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 L1C 3A6 Markborough Properties Inc. 1 Dundas Street West Suite 2800 Toronto, Ontario M5G 2J2 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 shall 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 ) MARKBOROUGH PROPERTIES INC. In the Presence of Per: resident Per: Se etary WEST OWMANVILLE DEVELOPMENTS LTD. i ) Per: ' ) el ident I ) Per: Se etary THE CORP TION OF TOWN OF NE j QWA Per: , Mayo Per: i- �Cler - 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 J.D. Barnes Ref. #90-25- 476-02 - - 11 - SCHEDULE "Bn Resolution of Council of the Town of Newcastle C-635-90 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. m. (230,000 sq. ft.) shopping centre on the subject property and which would also incorporate the 3,200 sq. m. (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.