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HomeMy WebLinkAboutPSD-074-02 Addendum ClfJIIDglOn REPORT PLANNING SERVICES DEPARTMENT Meeting: Date: COUNCIL Monday, September 30, 2002 Report #: Addendum to PSD-074-02 File #: RE 20.01 By-law #: Subject: OPTION TO PURCHASE FUTURE DETENTION POND SITE FROM MACOURTICE DEVELOPMENTS INC. Recommendations: It is respectfully recommended to Council the following: 1. THAT Report Addendum to Report PSD-074-02 be received; 2. THAT Council approve the First Amending Agreement to the Agreement between the Municipality of Clarington, Claret Investments Ltd. and 1361189 Ontario Limited, which is contained in Attachment 2 to this Addendum to Report PSD-074-02, and pass a by- law to authorize the Mayor and Clerk to execute it on behalf of the Municipality; 3. THAT conditional on the First Amending Agreement being executed by the parties to it and the deposit of cash or an unconditional and irrevocable Letter of Credit in the minimum amount of $998,250.00 being deposited with the Municipality as provided in the First Amending Agreement, the Director of Planning Services on behalf of the Municipality proceed to exercise the Option to Purchase the Future Detention Pond Site (Part 1 on Plan 40R-13921) as provided in Recommendation 1 of Report PSD-074-02 at the Appraised Purchase Price of $16,000.00 less any deductions permitted by the Subdivision Agreement between the Municipality, Macourtice Developments Inc. and Canada Trustco Mortgage Company dated September 3, 1991 respecting the lands in Draft Plan of Subdivision 18T-86073; 4. THAT if Macourtice Developments Inc. refuses to complete the transaction described in Recommendation 3, that the Municipality commence an action against Macourtice Developments Inc. for specific performance of the agreement of purchase and sale of the Future Detention Pond Site and such other relief as the Municipality's Solicitor considers necessary to protect the Municipality's interests; and 5. THAT all interested parties listed in this report and any delegations be advised of Council's decision. Submitted by: Reviewed by: ()~~~~ Franklin Wu Chief Administrative Officer vi . Crome, M.C.I.P., R.P.P. Director of Planning Services DH*DJC*sn 09/27/2002 CORPORATION OF THE MUNICIPALITY OF CLARINGTON 40 TEMPERANCE STREET, BOWMANVILLE, ONTARIO L 1 C 3A6 T (905) 623-3379 F (905) 623-9282 REPORT NO.: ADDENDUM TO REPORT PSD-074.02 PAGE 2 1.0 BACKGROUND 1.1 At the meeting on June 24, 2002, Council approved the recommendations contained in Report PSD-074-02. The Municipality has entered into an agreement with Claret Investments Ltd ("Claret") and 1361189 Ontario Limited ("1361189") respecting the exercise by the Municipality of its Option to Purchase the Future Detention Pond Site (Part 1 on Plan 40R-13921) from Macourtice Developments Inc. ("Macourtice"). The Site is located at the southeast corner of Courtice Road and Nash Road (see map contained in Attachment 1). Claret and 1361189 own certain lands within Draft Plan of Subdivisions 18T-92014 and 18T- 94027 are located generally northerly and easterly of the intersection of Courtice Road and Nash Road. Under the East Macourtice Tributary Creek Drainage Study, stormwater from these lands and other lands in the area is intended to drain into the Future Detention Pond. 1.2 In general, the agreement between the Municipality, Claret and 1361189 dated June 24, 2002 provides for the two companies to indemnify the Municipality against the costs as created by the exercise of the Option to Purchase and completing the resulting agreement of purchase and sale between the Municipality and Macourtice. The terms of the Option to Purchase are contained in paragraph 2.16 of the Subdivision Agreement between the Municipality, Macourtice and Canada Trustco Mortgage Company dated September 3, 1991 respecting Draft Plan of Subdivision 18T-86073 (Macourtice Subdivision Agreement). A copy of paragraph 2.16 of the Macourtice Subdivision Agreement is contained in Attachment 2 to Report PSD-074-02. 1.3 The Municipality retained Mr. Bob Gowdy of Property Valuators Consulting Inc. to prepare his written opinion of the "Appraised Purchase Price" (as defined in the Macourtice Subdivision Agreement) of the Future Detention Pond Site in accordance with paragraph 2.16 of the Macourtice Subdivision Agreement. Macourtice also retained an appraiser, Gary T. Kylie, to prepare his written opinion of the value of the Future Detention Pond Site. Mr. Gowdy's valuation of REPORT NO.: ADDENDUM TO REPORT PSD-074.02 PAGE 3 the land at $40,000.00 was prepared on the basis that the land could not be developed for any use other than a detention pond. Mr. Kylie's valuation was expressed as a per acre value which Macourtice's solicitors have represented as amounting to $985,000.00 in aggregate. Mr. Kylie assumed that the lands in question should be valued as land available for residential development. 1.4 The Municipality then retained a "Third Appraiser" (as defined in the Macourtice Subdivision Agreement), Appraisal Group Inc. to prepare a final and binding valuation of the Future Detention Pond Site in accordance with paragraph 2.16 of the Macourtice Subdivision Agreement. The Third Appraiser valued the land at $16,000.00 on the basis that its highest and best use is as a detention pond and that it did not have any other development potential. 1.5 Prior to the completion of the Third Appraiser's report, Macourtice commenced an action against the Municipality and the Third Appraiser in the Ontario Superior Court. Among other relief sought in the action, Macourtice has asked the Court to direct the Third Appraiser to value the land in question using as the terms of reference employed in an appraisal report of Durham Appraisal Services dated August 20, 1991, and to require a Third Appraiser to value the land on the basis that it could be developed for residential uses. Macourtice has also asked for an order in effect directing the Municipality to pay $985,000.00 for the Future Detention Pond Site. Additionally, Macourtice has sought other relief in the action which will be separately reported to Council by the Municipality's Solicitor. 1.6 Unless otherwise directed by Council, the Municipality will now proceed to exercise the Option to Purchase the Future Detention Pond Site. On the completion day of the resulting agreement of purchase and sale the Municipality will tender on Macourtice $16,000.00 (less certain permitted deductions) as the purchase price. It is possible that the tender will be refused in which event it is recommended that the Municipality commence an action against Macourtice for specific performance of the agreement of purchase and sale of the Future Detention Pond Site. REPORT NO.: ADDENDUM TO REPORT PSD-074-02 PAGE 4 1.7 In order to protect the Municipality's interests, Claret and 1361189 have agreed to execute the First Amending Agreement to the Primary Agreement contained in Attachment 2 and to deposit cash or an unconditional and irrevocable letter of credit with the Municipality as security for the performance of their obligations under the Primary Agreement as amended by the First Amending Agreement. The amount of the security which equals the value that will be deposited is $998,250.00 which equals the valued placed by Mr. Kylie on the land plus the estimated Land Transfer Tax that would be payable to the Minister of Finance on the registration of a transfer of it to the Municipality for $985,000.00. 1.8 The First Amending Agreement is contained in Attachment 2. It was prepared by the Municipality's solicitor who recommends it to you for approval as satisfactory to protect the Municipality's interests in this matter. 2.0 CONCLUSIONS AND RECOMMENDATIONS 2.1 It is recommended that the First Amending Agreement contained in Attachment 2 be approved by Council and that a by-law be passed by Council to authorize the Mayor and Clerk to execute it on behalf of the Municipality. 2.2 It is also recommended that conditional on the execution of the First Amending Agreement by Claret and 1361189, and the deposit by them of cash or an unconditional and irrevocable letter of credit with the Municipality in the minimum amount of $998,250.00, the Municipality then proceed to exercise the Option to Purchase and complete the resulting agreement of purchase and sale with Macourtice in accordance with paragraph 2.16 of the Macourtice Subdivision Agreement. The purchase price that will be tendered to Macourtice by the Municipality will be the Appraised Purchase Price determined by Appraisal Group Inc., that is $16,000.00, less any permitted deductions. REPORT NO.: ADDENDUM TO REPORT PSD-074-02 PAGE 5 2.3 In the event that Macourtice refuses to complete the transactions, it is further recommended that Council authorize the commencement of an action for specific performance and other relief considered necessary by the Municipality's solicitor to protect the Municipality's interests. Attachments: Attachment 1 - Key Map Attachment 2 - First Amending Agreement Interested parties to be advised of Council's decision: Claret Investments Limited 97 Athol Street East Oshawa, Ontario L 1 H 1 J8 1361189 Ontario Limited 97 Athol Street East Oshawa, Ontario L 1 H 1 J8 ! YO/"''''' '"'uu'"' .A.". 0,)/ ,-n...,>. ........... "'...., ............. rl..tUU'l~I'l\;J ~~.n'J.""''''''''' VUJ..L _.'j , LOT 28 c ~ Q:: It/:JUUU ATTACHMENT 1 JUN 20 '02 15:55 ~ i:::: ~ 8 905 623 0830 I t Macourtice Lands ~ Future Detention Pond Site Courtice Key Map PAGE. 06 "" z o (f) (f) LLl .c.> Z o c.> J - ATTACHMENT 2 THIS FIRST AMENDING AGREEMENT made this 30th day of September, 2002 BETWEEN: THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON ("Municipality") OF THE FIRST PART - and- CLARET INVESTMENTS LTD. ("Claret") and 1361189 ONTARIO LIMITED ("1361189") (Collectively the "Owner") OF THE SECOND PART WHEREAS: A. Claret and 1361189 executed an Agreement dated June 24,2002 ("Primary Agreement") respecting the Municipality's exercise of the Option to Purchase Part 1 on Plan 40R-13921 ("Future Detention Pond Site") from Macourtice Developments Inc. pursuant to paragraph 2.16 of a Subdivision Agreement dated September 3, 1991 between the Municipality, Macourtice and Canada Trustco Mortgage Company ("Macourtice Subdivision Agreement"), subject to the Owner entering into the Primary Agreement with the Municipality to indemnify the Municipality against all costs associated therewith; B. In accordance with paragraph 2.16(6) of the Macourtice Subdivision Agreement, Appraisal Group Inc. was appointed the "Third Appraiser" by the Municipality's Director of Public Works. The Third Appraiser's opinion is dated September 17, 2002. In it the Third Appraiser determined the "Appraised Purchase Price" of the Future Detention Pond Site to be Sixteen Thousand ($16,000.00) Dollars; C. An action has been commenced under Court File No. 02-CN-235639 by Macourtice against the Municipality and Appraisal Group Inc. Among other relief, in its Statement of Claim Macourtice has sought declaratory and mandatory relief requiring Appraisal Group Inc. to "consider as appropriate terms of reference, those terms of reference contained in Schedule "Y" ofthe Macourtice Subdivision Agreement being an 2 appraisal report of Durham Appraisal Services Inc. dated August 20, 1991" and then to proceed with the appraisal of the Future Detention Pond Site using the same terms of reference. D. In its Statement of Claim, Macourtice also claimed "a mandatory order that pursuant to the terms of the Macourtice Subdivision Agreement, the Municipality pay to it the sums for the subject lands as determined by the Appraiser"; E. The "Owners Appraiser" (as defined in paragraph 2.16(4) of the Macourtice Subdivision Agreement), Gary T. Kylie, provided his written opinion of the Appraised Purchase Price of the Future Detention Pond Site by his report dated July 22,2002 on a per acre basis. In paragraph 31 of the Statement of Claim, Macourtice stated that the Owner's Appraiser valued the subject lands at Nine Hundred and Eighty-Five Thousand ($985,000.00) Dollars. Land Transfer Tax in the minimum amount of Thirteen Thousand, Two Hundred and Fifty ($13,250.00) Dollars would be required to be paid to the Minister of Finance if the Future Detention Pond Site is transferred to the Municipality for this price; F. As a result ofthe commencement of the Macourtice Action, Claret and 1361189 acknowledge that Appraised Purchase Price or the consideration for the purchase of the Future Detention Pond Site by the Municipality as ultimately determined or agreed to may exceed the amount of Sixteen Thousand ($16,000.00) Dollars as determined by Appraisal Group Inc. in its written opinion dated September 17, 2002. Claret and 1361189 have agreed to pay to the Municipality the amount of the aforesaid Appraised Purchase Price or consideration in accordance with the provisions of the Primary Agreement as amended by this First Amending Agreement. They have also agreed to deposit with the Municipality either cash or an unconditional and irrevocable letter of credit issued by a bank listed in Schedule "I" ofthe Bank Act in the minimum amount of Nine Hundred and Ninety-Eight Thousand, Two Hundred and Fifty ($998,250.00) Dollars as a "Performance Guarantee" (as hereafter defined), which may be drawn upon by the Municipality and the amount(s) so drawn upon, appropriated or applied by the Municipality as provided for in the Primary Agreement as amended by this First Amending Agreement. G. In the event that the Appraised Purchase Price or consideration for the transfer of the Future Detention Pond Site to the Municipality exceeds the amount of Sixteen Thousand ($16,000.00) Dollars, the Owner has agreed to pay to the Municipality to complete the agreement of purchase and sale between the Municipality and Macourtice, the greater of (1) the Appraised Purchase Price as determined by Appraisal Group Inc. in its report dated September 17,2002; (2) ifMacourtice is successful in the Macourtice Action, the amount determined by the Third Appraiser to be the Appraised Purchase Price of the Future Detention Pond Site; and (3) ifthe Macourtice Action is settled by the parties by agreement between them as to the amount of the Appraised Purchase Price or the consideration to be paid by the Municipality to Macourtice for the Future Detention Pond Site, as the case may be, amount so agreed to; 3 H. This First Amending Agreement is authorized by By-law No. 2002-155 passed by the Municipality's Council at its meeting on September 30,2002, NOW THEREFORE in consideration of the premises herein contained and the sum of TWO DOLLARS ($2.00) and other good and valuable consideration (the receipt whereof by each of the parties is hereby acknowledged) covenant and agree as follows: 1. The Recitals set out above form part of this First Amending Agreement. 2. The Primary Agreement is amended by changing all references in it to The Corporation of the Municipality of Clarington as "Clarington" to be references to the aforesaid Corporation as the "Municipality", and by amending Recital A to refer to "June 24,2002". 3. In addition to the amounts provided for in the Primary Agreement, amounts equal to all reasonable costs and expenses of the Municipality in defending the Macourtice Action including without limitation, costs of legal representation for the Municipality and costs which may be awarded against the Municipality in the Macourtice Action which are not awarded in respect of Macourtice's claim for damages or negligent misrepresentation, and which are incurred by the Municipality but are not required to be paid by the Municipality's insurer or recovered from Macourtice, shall be paid by the Owner to the Municipality forthwith after written demand therefore is given to the Owner by the Municipality's Director of Planning Services. 4. The Municipality, Claret and 1361189 acknowledge that as a result of the commencement of the Macourtice Action, the Appraised Purchase Price or the amount of the consideration for the purchase by the Municipality ofthe Future Detention Pond Site may exceed the amount of Sixteen Thousand ($16,000.00) Dollars as determined by Appraisal Group Inc. to be the Appraised Purchase Price in its written opinion dated September 17,2002. Forthwith after the Municipality's Director of Planning Services gives them a written notice requiring them to do so, Claret and 1361189 shall pay to the Municipality the amount of the Appraised Purchase Price as finally determined by the Third Appraiser in accordance with the decision of the Court in the Macourtice Action or the amount of the consideration for the transfer to the Municipality of the Future Detention Pond Site as provided for in this First Amending Agreement, whichever is greater. 5. On the execution ofthis First Amending Agreement by them, Claret and 1361189 shall deposit with the Municipality cash or an unconditional and irrevocable letter of credit issued by a bank listed in Schedule "1" of the Bank Act in the minimum amount of Nine Hundred and Ninety-Eight Thousand, Two Hundred and Fifty ($998,250.00) Dollars ("Performance Guarantee"). The letter of credit shall be acceptable to and shall contain terms satisfactory to the Municipality's Director of Finance/Treasurer. The Owner agrees with the Municipality that the Performance 4 Guarantee may be drawn upon by the Municipality to provide the funds or part of the funds necessary to complete the agre('ment of purchase and sale of the Future Detention Pond Site between the Municipality and Macourtice, and/or to remedy any breach or default of the Owner of any of its obligations under the Primary Agreement as amended by this First Amending Agreement, as determined by the Municipality's Director of Planning Services, acting reasonably. Forthwith after each occasion on which any part of the Performance Guarantee is appropriated or applied by the Municipality, the Director of Planning Services shaH give the Owner written notice of that action together with appropriate particulars thereof. 6. The Municipality agrees that it shaH not appropriate or apply any part of the Performance Guarantee for or to indemnify the Municipality or its insurer against the Municipality's costs of or awarded against the Municipality in the Macourtice Action or any judgement given in the Macourtice Action in respect of Macourtice's claim for damages for negligent misrepresentation. The Municipality also agrees that it will not settle any ofMacourtice's claims in the Macourtice Action without the prior written consent of Claret and 1361189. 7. In the event that the Appraised Purchase Price exceeds the amount of Sixteen Thousand ($16,000.00) DoHars, the Owner shaH pay to the Municipality to complete the agreement of purchase and sale of the Future Detention Pond Site, the greater of (1) the Appraised Purchase Price as determined by Appraisal Group Inc. in its report dated September 17, 2002; (2) ifMacourtice is successful in the Macourtice Action, the amount determined by the Third Appraiser to be the Appraised Purchase Price of the Future Detention Pond Site; and (3) if the Macourtice Action is settled by the parties by agreement between them as to the amount of the Appraised Purchase Price or the consideration to be paid by the Municipality to Macourtice for the Future Detention Pond Site, as the case may be, the agreed to amount. 8. Without derogating from the other provisions of this First Amending Agreement, the Municipality may appropriate or apply from time to time the whole or anyone or more portions of the Performance Guarantee up to an amount(s) determined by the Municipality's Director of Planning Services which in aggregate shaH not exceed the amount(s) which in the opinion of the Director of Planning Services is required to remedy the Owner's breach(es) or default(s) of or under the provisions of this First Amending Agreement and to provide the funds necessary to complete the purchase of the Future Detention Pond Site in accordance with Primary Agreement as amended by this First Amending Agreement. Forthwith after making each such appropriation or application, the Director of Planning Services shaH give the Owner written notice thereof which shall contain appropriate particulars of the Municipality's action. Forthwith after being given such notice, the Owner shall reinstate the Performance Guarantee to the full amount required by this First Amending Agreement, except where the appropriation or application is for the purpose of providing the funds necessary to complete the purchase of the Future Detention Pond Site, in which case the Owner shaH deposit with the 5 Municipality, the additional required funds in excess of the amount then comprising the Performance Guarantee which are necessary to complete the aforesaid purchase. 9. If separate components of the Performance Guarantee have been deposited with the Municipality by Claret and 1361189, respectively, and the Municipality decides to appropriate or apply any part ofthe Performance Guarantee for the purposes of the Primary Agreement as amended by this First Amending Agreement, the Municipality shall appropriate or apply one half of the total amount required by the Municipality from each ofthe aforesaid components of the Performance Guarantee. 10. Forthwith after the later to occur ofthe execution of this First Amending Agreement by the last of the parties to execute it and the deposit of the Performance Guarantee with the Municipality, the Municipality shall exercise the Option to Purchase the Future Detention Pond Site in accordance with paragraph 2.16(2) of the Macourtice Subdivision Agreement. If Macourtice refuses to complete the transaction, the Municipality shall tender the consideration for the agreement of purchase and sale of the Future Detention Pond Site on Macourtice on the "Completion Date" (as defined in the Macourtice Subdivision Agreement). If the tender is refused and the Future Detention Pond Site is not transferred to the Municipality on the aforesaid Completion Date, the Municipality will commence action against Macourtice for specific performance of the agreement of purchase and sale of the Future Detention Pond Site and other relief considered appropriate by the Municipality. Amounts equal to the reasonable costs and expenses of the Municipality in commencing and pursuing the action against Macourtice including any appeal will be paid to the Municipality by the Owner forthwith after written demand therefor is given to the Owner by the Municipality's Director of Planning Services. 11. Forthwith after the completion of the agreement of purchase and sale ofthe Future Detention Pond Site by the Municipality, the Municipality shall return the Performance Guarantee or the amount thereof that has not been appropriated or applied in accordance with the Primary Agreement as amended by this First Amending Agreement to the Owner or to the Owner's written direction if such has been given to the Municipality. If any portion of the Performance Guarantee is appropriated by the Municipality and is not fully expended by the Municipality, in the event that an amount equal to the amount so appropriated or any part of it is paid by the Municipality either to the Owner, to the bank which issued the letter of credit for deposit as the Performance Guarantee, as directed by the Owner or the bank, as the case may be, the Owner agrees with the Municipality that the Owner will not require the Municipality to pay interest on any portion of it for the period in which it is held by the Municipality and deposited by the Municipality in an interest bearing account in the name of the Municipality. 6 12. Claret and 131189 are jointly and severally responsible to the Municipality for the performance of the obligations of the Owner under the Primary Agreement as amended by this First Amending Agreement. 13. Ifit is determined by the Municipality's Director of Engineering Services that owners other then Claret and 1361189 will benefit from the Stormwater Detention Pond and Associated Works, and if Claret and 1361189 apply to the Municipality for the making of a front-ending agreement under the Development Charges Act, 1997, and the Municipality approves the making of a front-ending agreement the costs of acquisition of the Future Detention Pond Site or an appropriate portion thereof as determined by the Municipality in its absolute discretion will be included in the costs ofthe Stormwater Management Works which are to be shared by all benefiting owners. 14. Time shall be of the essence of this First Amending Agreement. 15. The Primary Agreement as amended by this First Amending Agreement and everything therein contained shall enure to the benefit of and be binding upon the parties hereto and their respective heirs, executors, administrators, successors and permitted assigns. 16. This First Amending Agreement may be executed by the parties hereto in counterparts, and if so executed, the executed counterpart may be delivered to the other parties by telefasimilie. Notwithstanding paragraph 5 of the Primary Agreement if delivery of a counterpart of this First Amending Agreement is effected by telefasimilie, delivery shall be deemed to be completed only on the receipt of the executed counterpart in question. 17. Except as otherwise expressly provided in this First Amending Agreement, the provisions of the Primary Agreement between the parties hereto are hereby confirmed and ratified. 7 IN WITNESS WHEREOF each of the parties hereto has affixed its corporate seal by the hands of its proper officers on the date inscribed on the first page of this Agreement. THE CORPORATION OF THE MUNICIPALITY OF CLARlNGTON John Mutton, Mayor Patti 1. Barrie, Municipal Clerk CLARET INVESTMENTS LTD. Per: Name: Title: Per: Name: Title: I1We have authority to bind the Corporation. 1361189 ONTARIO LIMITED Per: Name: Title: Per: Name: Title: I/We have authority to bind the Corporation.