Loading...
HomeMy WebLinkAbout2003-116 THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON BY-LAW NO. 2003- 116 being a by-law to authorize the execution of a Second Amending Agreement between the Corporation of the Municipality of Clarington, Willsonia Industries Limited, and Halloway Holdings Limited. NOW THEREFORE BE IT RESOLVED THAT the Council of the Corporation of the Municipality of Clarington enacts as follows: 1. THAT the Mayor and Clerk are hereby authorized to execute, on behalf of the Corporation of the Municipality of Clarington and seal with the Corporate seal, a Second Amending Agreement between Willsonia Industries Limited and Halloway Holdings Limited. 2. THAT the Second Amending Agreement attached hereto as Schedule "A" forms part of this By-law. BY-LAW read a first time this 23rd day of June 2003 BY-LAW read a second time this 23rd day of June 2003 BY-LAW read a third time and finally passed this 23rd day of June 2003 iJ[~, - MuI~:~M~yor::--:: '. -'~-'- .l:. ,if' THIS SECOND AMENDING AGREEMENT made as of this 13th day of June, 2003. BETWEEN: THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON (hereinafter called the "Municipality") OF THE FIRST PART - and- WILLSONIA INDUSTRIES LIMITED (hereinafter called "Willsonia") OF THE SECOND PART - and - HALLOWAY HOLDINGS LIMITED (hereinafter called "Halloway") OF THE THIRD PART WHEREAS: A. The lands owned by Willsonia are described in Schedule "A-I" hereto. They are hereinafter called the "Willsonia Lands." B. The lands owned by Halloway are also described in Schedule "A-I" hereto. They are hereinafter called the "Halloway Lands." C. The Municipality, Willsonia as Mortgagee and Clarington Place Limited ("Clarington Place') entered into an agreement dated May 24, 1994 ("Servicing Agreement") which applied to the combination of the Willsonia Lands and the Halloway Lands, among certain other lands. The Servicing Agreement is contained in Schedule "G" to the Development Agreement dated April 30, 1996 between the Municipality, Willsonia as Mortgagee and Clarington Place as Owner ("Development Agreement"). The Development Agreement also applies to the Willsonia Lands and the Halloway Lands, among other lands. The Development Agreement was registered in the Land Registry Office for the Land Titles Division of Durham (No. 40) ("Land Registry Office") on June 13, 1996 as Instrument No. D472409. D. The Municipality, Willsonia as Mortgagee, and Clarington Place as Owner entered into the First Amending Agreement dated April 30, 1996 ("First Amending Agreement") to amend ." -, 2 the Servicing Agreement. The First Amending Agreement also is contained in Schedule "G" to the Development Agreement. E. An Application to Change Names registered in the Land Registry Office on September 10,2002 as Instrument No. DRII0384, states that Clarington Place was amalgamated with Willsonia and that the name of the amalgamated corporation is Willsonia. The result of the amalgamation is that Willsonia became the registered owner in fee simple of the Willsonia Lands and the Halloway Lands, among other lands. F. By Transfer registered in the Land Registry Office on October 1,2002 as Instrument No. DR 117268, Willsonia transferred the Halloway Lands to Halloway. G. Halloway has agreed with the Municipality to assume certain ofWillsonia's obligations under the Servicing Agreement, as amended by the First Amending Agreement. H. The Parties hereto have agreed to amend the Servicing Agreement as amended by the First Amending Agreement as hereinafter set out. NOW THEREFORE THIS SECOND AMENDING AGREEMENT WITNESSETH THAT in consideration of the premises and the covenants hereinafter expressed, and the sum of two ($2.00) dollars of lawful money of Canada, now paid by each Party to the others (the receipt whereof by each Party is hereby acknowledged), the Parties hereto covenant and agree to and with each other as follows: The Servicing Agreement as amended by the First Amending Agreement is further amended as follows: 1.1 Parties Halloway is hereby made a party to the Servicing Agreement as amended by the First Amending Agreement with the same rights and duties as the "Owner" (as defined in the Servicing Agreement) has thereunder in respect of the Halloway Lands. 1.2 Definitions and Schedules (a) The following Schedules are added to the Servicing Agreement as amended by the First Amending Agreement: Schedule "A-I" Schedule "Y" "Legal Description of Halloway Lands and Willsonia Lands" "Urban Design Guidelines and Alignment of Uptown Avenue" J~ 3 (b) Paragraph 1.1 of the Servicing Agreement as amended by paragraph 1.1(s) of the First Amending Agreement is further amended by adding the following definitions thereto in alphabetical order: (i) "C1arington Boulevard Extension" has the meaning assigned to it in paragraph 2.7(1) of the Servicing Agreement as amended by paragraph 5.1 of this Second Amending Agreement. (ii) "Clarington Boulevard Extension Performance Guarantee" has the meaning assigned to it in paragraph 2.7(1) of the Servicing Agreement as added by paragraph 5.1 of this Second Amending Agreement. (iii) "Clarington Boulevard Extension Works" has the meaning assigned to it in paragraph 2.7(1) of the Servicing Agreement as added by paragraph 5.1 of this Second Amending Agreement. (iv) "Development Agreement" has the meaning assigned to it in Recital C of this Second Amending Agreement. (v) "Force Majeure" has the meaning assigned to it in paragraph 2.14 ofthe Servicing Agreement as added by paragraph 12.1 oflhis Second Amending Agreement. (vi) "KPRD School Board" has the meaning assigned to it in paragraph 2.7(2) of the Servicing Agreement as added by paragraph 5.1 of this Second Amending Agreement. (vii) "Halloway Lands" has the meaning assigned to it in Schedule "A-I" of this Second Amending Agreement. (viii) "Uptown Avenue Extension" has the meaning assigned to it in paragraph 2.7(3) of the Servicing Agreement as added by paragraph 5.1 of this Seconding Amending Agreement. (ix) "Uptown Avenue Extension Performance Guarantee" has the meaning assigned to it in paragraph 2.7(3) of the Servicing Agreement as added by paragraph 5.1 of this Second Amending Agreement. (x) "Uptown Avenue Extension Works" has the meaning assigned to it in paragraph 2.7(3) of the Servicing Agreement as added by paragraph 5.1 oflhis Second Amending Agreement. ,. ~ 4 (xi) "WilIsonia Lands" has the meaning assigned to it in Schedule "A-I" of this Second Amending Agreement. 2.1 New Schedule "A-I" A new Schedule "A-I" containing legal descriptions of the Halloway Lands and the Willsonia Lands and having the form and content of Schedule "A-I" attached hereto is added to the Servicing Agreement, as amended by the First Amending Agreement. 3.1 Amendments to Schedule "F" ofServicin2 A2reement as Amended Paragraph I of Schedule "F" of the Servicing Agreement as amended by paragraph 1.4 of the First Amending Agreement, is amended by deleting sub-paragraph 1(2), by replacing it with a new sub-paragraph I (2), and by adding a new sub-paragraph (3) as follows: "1(2) Lands Required for Extension of Clarin2ton Boulevard and Certain Other Lands Prior to the execution of the Second Amending Agreement by the Municipality, Halloway shall deliver to the Municipality a transfer in fee simple absolute free and clear of all encumbrances and restrictions of the lands shown as Part 19 on Reference Plan 40R-16730 and the 0.3 metre reserves shown as Parts _'_' _ and _ on Reference Plan 40R-~_ to be registered subsequent to the execution of this document. 1(3) Lands Required for Extension of Uptown Avenue to Westerly Limit of Halloway Lands Prior to the earliest to occur of (1) the issuance of a building permit for the construction of one or more buildings on any portion of Phase II of the Development of the Lands, (2) the issuance of a building permit for the construction of a building or buildings containing in the aggregate more than Sixty Thousand (60,000) square feet of gross leasable area on anyone or more portions of the Lands within the draft plan of subdivision SC 2002-003, and (3) June 1,2013, Halloway shall deliver to the Municipality a transfer in fee simple absolute free and clear of all encumbrances and restrictions of either Part 14 on Plan 40R-16730 revised to exclude 0.3 metre reserve at its westerly limit orofa new alignment for the proposed allowance for the section of Uptown Avenue situated westerly from the westerly limit of Part lion Plan 40R-16730 to the westerly limit of the lands within Plan 40R-16730. Any new alignment of this allowance must first be approved by the Municipality's Director of Engineering \ ,~ 5 Services and shall be as shown on a new Reference Plan which will be prepared and registered by Halloway at its cost. 4.1. Transfer of Lands Paragraph 2.5 of the Servicing Agreement as amended by paragraph 2.2 of the First Amending Agreement is further amended by deleting sub-paragraph 2.5(2) of the Servicing Agreement and by adding a new paragraph 2.5(2) as follows: "2.5(2) Halloway shall deliver to the Municipality executed transfers sufficient to vest in the Municipality title in fee simple absolute free and clear of all encumbrances of the land set out in Schedule "F", as amended, together with a certificate signed by an Ontario Solicitor certifying as to the title of the lands being transferred and any amount of money by cash or certified cheque payable to the Municipality which is equal to any tax, fee or cost payable in respect of the registration of such transfers. The aforesaid deliveries shall be made at the following times: (a) Phase I Transferred Lands, at the time set out in paragraph (1) of Schedule "F". (b) Transfer of lands required for the extension of Clarington Boulevard prior to the execution of the Second Amending Agreement by the Municipality; (c) Transfer of certain other lands, as described in paragraph (2) of Schedule "F", as amended by the First Amending Agreement, prior to the execution of the Second Amending Agreement by the Municipality; and (d) Transfer of lands required for the extension of Uptown A venue as described in paragraph (3) of Schedule "F", as amended, at the time set out in paragraph (3) of Schedule "F"." 5.1 Security and Payments to School Board Paragraph 2.7 of the Servicing Agreement added by paragraph 2.3 of the First Amending Agreement is deleted and replaced with a new paragraph 2.7 as follows: "2.7(1) Security for Extension of Cia ring ton Boulevard on Part 19 on Plan 40R-16730 Prior to the execution of the Second Amending Agreement by the Municipality, Halloway will deposit with the Municipality's Treasurer cash or an irrevocable and unconditional letter of credit ("Clarington Boulevard Extension Performance Guarantee") in the total amount of the Works Cost Estimate approved for the 6 Works ("Clarington Boulevard Extension Works") which are to be constructed and installed for the extension of Clarington Boulevard ("Clarington Boulevard Extension") on Part 19 on Plan 40R-16730, and the Streetscaping Works to be located on Part 19. The Works Cost Estimates shall have been first approved by the Municipality's Director of Engineering Services. It is acknowledged by the Parties that the Clarington Boulevard Extension Works will be constructed and installed by the Kawartha Pine Ridge District School Board ("KPRD School Board") in the discharge of Halloway's obligations hereunder. (2) Payments to School Board An amount equal to one-half (1/2) of the as-constructed costs of the Clarington Boulevard Extension Works as approved by the Municipality's Director of Engineering Services will be drawn by the Municipality's Treasurer from the Clarington Boulevard Extension Performance Guarantee and paid by the Municipality to the KPRD School Board as soon as is reasonably practicable following the issuance by the Municipality of a Certificate of Acceptance of the Clarington Boulevard Extension Works. An amount equal to one-half (1/2) of the as-constructed costs of Clarington Boulevard Extension Works as approved by the aforesaid Director will be drawn by the Municipality's Treasurer from the balance of the Clarington Boulevard Extension Performance Guarantee and paid to the KPRD School Board as soon as is reasonably practicable after the earliest to occur of the issuance of a building permit (1) for the construction of one or more buildings on any portion of Phase II of the Development of the Lands, (2) the issuance of a building permit for the construction of one or more buildings containing in the aggregate more than Sixty Thousand (60,000) square feet of gross leasable area on anyone or more portions of the lands within draft plan of subdivision SC 2002-003, and (3) June 1,2013. In the event that the amount of the Clarington Boulevard Extension Performance Guarantee is less than the as- constructed costs of the Clarington Boulevard Extension Works as approved by the aforesaid Director, Halloway will pay an amount of money equal to the deficiency to the Municipality for payment to the KPRD School Board forthwith alter being given written noticc by tbc aforesaid Director requiring Halloway to do so. In the event that the amount of the Clarington Boulevard Extension Performance Guarantee which is outstanding is more than the aforesaid as- constructed costs, forthwith after making the second payment to the KPRD School Board, the Municipality will return the undrawn upon amount of the Clarington Boulevard Extension Performance Guarantee to Halloway. 7 (3) Security for Extension of Uptown Avenue Prior to the transfer by Halloway to the Municipality of the land required for the extension of the portion of Uptown Avenue situated westerly from the westerly limit of Part 11 on Plan 40R-16730 pursuant to paragraph 2.5(3) ("Uptown Avenue Extension"), Halloway (I) shall have prepared a Works Cost Estimate and the Municipality's Director of Engineering Services shall have approved a Works Cost Estimate for the Works ("Uptown Avenue Extension Works"), and the Streetscaping Works which are to be constructed or installed for the extension of Uptown Avenue westerly from the westerly limit of Part 11 on Plan 40R-16730 to the westerly limit of the lands within Plan 40R-16730, and (2) shall have deposited with the Municipality's Treasurer cash or an irrevocable and unconditional letter of credit ("Uptown Avenue Extension Performance Guarantee") in the total amount of the approved Works Cost Estimate for the Uptown Avenue Extension Works including the approved cost of the aforesaid Streetscaping Works. 6.1 Review of Uptown Avenue Ali2nment Thc Servicing Agreement as amended by the Fitst Amending Agreement is further amended by adding a new paragraph 2.7.1 as follows: "2.7.1 Review of Alignment of Uptown Avenue from Westerly Limit of Part 11 to Green Road The Parties hereto acknowledge that the Bowmanville West Main Central Area is to be developed on a grid and block basis. Furthermore, the Parties acknowledge that Halloway is attempting to develop Phase II of the Development of the Lands and the lands within draft plan of subdivision SC 2002-003 in a cost effective manner. To this end the Municipality agrees to consider road patterns other than as shown on the Urban Design Guidelines contained in the Secondary Plan for the West Bowmanville Main Central Area contained in Schedule "Y" hereto. Reasonable consideration shall be given by the Municipality to a traffic/transportation system analysis which shall be prepared by a qualified traffic engineer retained by Halloway who has been first approved by the Municipality's Director of Engineering Services. The analysis shall consider both the elimination of Uptown Avenue extension and the retention of Uptown Avenue extension on various alignments including that shown in the Urban Design Plan for Bowmanville West Main Central Area as shown on Schedule "Y" attached hereto." 8 7.1. Application of Certain Provisions of Servicin2 Agreement The Servicing Agreement, as amended by the First Amending Agreement is further amended by adding a new paragraph 2.7.2 as follows: "2.7.2 Certain Provisions of Servicing Agreement, as Amended, Apply The provisions of paragraph 2.5, 2.6 and 3.6 ofthe Servicing Agreement, as amended by the First Amending Agreement, apply with all necessary changes to them being considered to have been made to give effect to the intent of paragraphs 2.7(1) and 2.7(2) as replaced by this Second Amending Agreement. For the avoidance of doubt, the provisions of paragraph 2.6 of the Servicing Agreement, as amended by the First Amending Agreement, apply with all necessary changes to it being considered to have been made to give effect to the intent of paragraph 2.5 and Schedule "F" of the Servicing Agreement, as amended by the First Amending Agreement ad as further amended by this Second Amending Agreement. The provisions of paragraphs 3.6(1) and 3.6(2) apply with all necessary changes to them being considered to have been made to them to give effect to the intent of paragraphs 2.7(2) and 2.7(3) ofthe Servicing Agreement, as amended by the First Amending Agreement and as further amended by this Second Amending Agreement." 8.1 Effect of Subdivision Agreement, etc. and Need for Consent Paragraph 7.1 (I) of the Servicing Agreement as amended by paragraph 4.1 ofthe First Amending Agreement is further amended by deleting the words and figures "subsection 51(26)" and by replacing them with the words and figures "subsection 51(25), 51(26) and 53(12)." 9.1 Streetscaping Works Paragraph 10.2 of the Servicing Agreement as added by paragraph 7.1 of the First Amending Agreement, is deleted and replaced with new paragraphs 10.2 and 10.3 as follows: "10.2 Streetscaping Works on Parts II, IS and 17 on Plan 40R-16730 Without derogating from paragraph 10.1, Willsonia agrees with the Municipality to construct and install Streetscaping Works as more particularly described in the Final Streetscaping Report on the portion ofClarington Boulevard located on lands comprising Parts II, IS and 17 on Plan 40R-16730. 9 10.3 Streetscaping Works on Parts 14 and 19 on Plan 40R-16730 Without derogating from paragraph 10.1, Halloway agrees with the Municipality to construct and install Streetscaping Works as more particularly described in the Final Streetscaping Report on Parts 14 and 19 on Plan 40R-16730 in conjunction with the construction and installation of the Clarington Boulevard Extension Works and the Uptown Avenue Extension Works." 10.1 Amendments to Schedule "G" of Servicing Agreement as Amended Schedule "0" of the Servicing Agreement as amended by paragraph 9.1 of the First Amending Agreement, is further amended by deleting from paragraphs I(c) and l(d) thereof, the words "and the Phase II Transferred Lands" and by replacing them with the words "Clarington Boulevard Extension and Uptown Avenue Extension." 11.1 Assnmption of Certain of Owner's Duties by Halloway The Servicing Agreement as amended by the First Amending Agreement, is further amended by adding a new paragraph 11.2 as follows: "11.2 Assumption of Certain Obligation by Halloway Pursuant to paragraph 1 1.1, Halloway agrees with the Municipality that Halloway assumes all of the Owner's obligations provided for in the Servicing Agreement as amended by the First Amending Agreement insofar as they relate to (1) the Halloway Lands, (2) the transfer of lands that on June I, 2003 had not been transferred by the Owner either to the Municipality or to the Regional Municipality of Durham, and (3) the construction and installation of the Clarington Boulevard Extension Works, the Uptown Avenue Extension Works, and the Streetscaping Works referable to the Clarington Boulevard Extension and the Uptown Avenue Extension, respectively." 12.1 Notice Paragraph 2.14 of the Servicing Agreement as amended by the First Amending Agreement is deleted and replaced with the following: "2.14 Notification (I) If any notice or other document is required to be or may be given by either party hereto to the other or by any official of the Municipality to Halloway under this 10 Agreement, such notice shall be transmitted by telefax or mailed by prepaid post or delivered to: The Municipality: The Corporation of the Municipality of Cia ring ton 40 Temperance Street Bowmanville, ON LlC 3A6 Attention: David Crome, Director of Planning Services Fax No.: (905) 623-0830 Clarington Place: Clarington Place Limited 104 Bond Street West Oshawa, ON LlG IA7 Fax No.: Willsonia: Willsonia Industries Limited 104 Bond Street West Oshawa, ON LI G IA 7 Fax No.: Halloway: Valiant Property Management 177 Nonquon Road, 20th Floor Oshawa, ON LlG 3S2 Fax No.: (905) 579-9472 or such other telefax number or address of which a party has notified the Municipality in writing. Any such notice telefaxed or mailed or delivered shall be deemed good and sufficient notice under the terms of this 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 third business day (excluding Saturdays, Sundays and statutory holidays) following the mailing thereof. Notwithstanding the foregoing, in the event that it may be reasonably anticipated that due to Force Majeure any notice will not be received within the time limit set out above, then such notice shall be sent by an alternate means of transportation which may reasonably be anticipated will cause the notice to be received reasonably expeditiously by the addressee. (2) For the purposes of this Seconding Amending Agreement, the term "Force Majeure" means any delay for the duration of the delay which is imposed by reason of strikes, lockouts, riots, wars or acts of military authority, acts of public enemies, sabotage, epidemics, washouts, nuclear and radiation activity or fallouts, rebellion or civil commotion, fire or explosion; flood, wind, water, earthquakes or other casualty, or an Act of God and any act, omission or event whether of the kind herein enumerated or otherwise not within the control of the parties none of which has been caused by the deliberate default or act or omission by the parties II and none of which has been avoidable by the exercise of reasonable effort or foresight by the parties." 13.1. Time is of the Essence Time is of the essence of this Second Amending Agreement. 14.1 Authoritv Willsonia and Halloway acknowledge and agree that the Municipality has authority to enter into this Second Amending Agreement, that every provision hereof is authorized by law and is enforceable by and against the Parties hereto, and that this Second Amending Agreement is made by the Municipality in reliance on the acknowledgement and agreement ofWillsonia and Halloway as aforesaid. 15.1 Registrations Willsonia hereby covenants and agrees to the deposit of this Second Amending Agreement or a notice thereof on the title to the Halloway Lands and the Willsonia Lands, respectively. 16.1 Confirmation of Servicing Agreement, as Amended Except as specifically amended by this Second Amending Agreement, the provisions of the Servicing Agreement including the Schedules, as amended by the First Amending Agreement are hereby confirmed by the Parties hereto and continue to govern the Parties hereto. 17.1 Binding Effect This Second Amending Agreement shall enure to the benefit of and be binding on the Parties hereto and their respective successors and assigns. , 12 IN WITNESS WHEREOF the Parties hereto have hereunto set their hands and seals the day and year first above written and the Parties hereto have hereunto affixed their corporate seals by the hands of their proper officers duly authorized in that behalf. THE CORPORATION OF THE- MUNICIPALI Y OF CLARI~G:rON::-' . ~ ~ -. - ~ , ~ - - - "---;:. INDUSTRIES LIMITED r Per: Name: Title: I/We have authority to bind the Corporation. HALLOWAY HOLDINGS LIMITED p" ;f1kM~~ Name: A. e c ~ r- tV Title: P,f p.s , Per: Name: Title: I/We have authority to bind the Corporation. I " 13 SCHEDULE "A-I" Legal Description of Halloway Lands and Willsonia Lands Hallowav Lands: Part of Lot 16, Concession 1, Darlington, being Parts 4, 12, 14, 16, 17 and 19, Plan 40R-16730 save and except Parts 1 and 2 onP1an40R-17612. Willsonia Lands: (Insert Description) . '- . , 14 SCHEDULE "Y" Urban Design Guidelines and Alignment of Uptown Avenue ~ 'l:l o II> 8- :0 <Q' ",. - o .. ~ ~ r ~ loe) i i Itf J I J I 11111. ~EB J .-..-..-. ..-.iIII...-............. ~r I . I j~ , . ~/J l ...:~.. , '. I I :'. I " -,_. ....J..._.._.._.._ . .\ . i . I . I . I . I . I .