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HomeMy WebLinkAbout2005-118 THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON BY-LAW NO. 2005-1}~ being a By-Law to amend By-Law 84-63, the Comprehensive Zoning By-Law for the Corporation of the Municipality of Clarington WHEREAS the Council of the Corporation of the Municipality of Clarington deems it advisable to amend By-Law 84-63, as amended, of the Corporation of the former Town of Newcastle in accordance with application ZBA 2004-022 to permit medical clinic on the subject lands; NOW THEREFORE BE IT RESOLVED THAT the Council of the Corporation of the Municipality of Clarington enacts as follows: 1. Section 16.5. "SPECIAL EXCEPTIONS -GENERAL COMMERCIAL (C1) ZONE" is hereby amended by adding a new Section 16.5.47 as follows: "16.5.47 GENERAL COMMERCIAL EXCEPTION (C1-47) ZONE (1) Notwithstanding the provisions of 3.13(a), 3.16(a)(i), 3.16(e)(i), 3.22, 16.1, 16.3 (a)(i) and (iii) and 16.3(d) no person shall use any land or erect or use any building or structured located in a C1-47 except for a medical or dental clinic subject to the applicable provisions of the aforesaid By-law 84-63 are satisfied: a) Yard Requirements i) Front Yard a minimum of 1.5 metres and a maximum of 4.5 metres for a minimum 38 metres of the building ii) Exterior Side Yard a minimum of 1.5 metres and a maximum of 6.5 metres b) c) Building Height (maximum) 3 stories Parking Space Size (minimum) 5.2 m in length by 2.75 m in width provided that such space is perpendicular to a landscape open space after having a minimum width of 3.0m d) Loading Space (minimum) 1 space e) Sight triangle (minimum) 5 metres by 5 metres f) Entrance separation from the boundary of a side yard lot line of a residentially zoned property, minimum 3.0 metres 2. This By-Law shall come into effect on the date of the passing hereof, subject to the provisions of Section 34 of the Planning Act, R.S.O. 1990. BY-LAW read a first time this 13 day of June 2005 BY-LAW read a second time this 13 day of June 2005 BY-LAW read a third time and finally passed this 13 day of June 2005 .".":.. -- -- ---.-'/- - ~ J" ~ , Municipal Cler-lt:"" ',,' This is Schedule "A" to By-law 2005- 118 passed this 13 day of June , 2005 A.D. , -'" -"" ,. '" u o ~ 'Il """",,,^ CHURCH STREET . I ~ - ~ ~ I '" ,I ~ Ii ! V) \, ,~ I i1 ~ \ ~ ~ I , " ;! ~ I~ =, ~ = " u , ~ ~ ~ I~ ~ ~ 15 l ~ U " I . i " ~ ! 1_...-=":: -=:!:}~;,,:,:!-l- !, I A1NC STREET EAST v//~ ~ ~ol , '--BY l4U&P- " '"0_, "~" Zoning Change From "C1-30" To "C1-47" Zoning Change From "(H)C1-30" To "C1-47'" Zoning Change From "(H)R3" To "C "47 Subject Lands , " ./-:' - _.- ,'- ~ ' ,--- , ~ w (~ ~ , z \ ~ ~ ~ It z ~ ~ ~ \!: ~ ~ Em!~! ~ [J;hlBJi QUE!':N STREc::T ~ , ~ " , ~ ~ z ~ HOBBS DR;VE ~FB II!!!I!I!I!! I!/I--" I \J PURCHASE AND OPTION AGREEMENT This Agreement made as of the 13th day of June, 2005. BETWEEN: SABINA INVESTMENTS INe. AND ANKARA REALTY LIMITED (hereinafter collectively referred to as the "Vendors"), OF THE FIRST PART, - and- THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON (hereinafter referred to as the "Purchaser"), OF THE SECOND PART. - and - THE BOWMANVILLE PROFESSIONAL BUILDING LIMITED (hereinafter referred to as "Professional Building"), OF THE THIRD PART. WHEREAS: A. The Vendors as Landlord and Professional Building as Tenant have entered into a Lease dated as of January 1,2005 (the "Lease") in respect of the Lands (as defined in the Lease); B. The Vendors and Professional Building have agreed to amend the Lease (the "Amendment") to surrender a parcel with the frontage of20.13 metres on King Street East by a depth of 15.5 metres (the "Excluded Area"); C. The Lease provides for an option in favour of Professional Building to purchase the Lands minus the Excluded Area (the "Remaining Lands") on the terms contained therein (the "Tenant's Option"); D. Professional Building has entered into the Lease for the purpose of developing the Remaining Lands for the purposes of a parking lot to serve the professional building that it operates on adjoining lands; E. True copies ofthe Lease and the Amendment are annexed to this Agreement as Schedules "A" and "B" respectively; F. The Vendors have agreed to convey title in fee simple to the Excluded Area to the Purchaser for a nominal consideration (the "Excluded Area Conveyance"); - 2- G. The Vendors have also agreed to grant an option, to the Purchaser (the "Purchaser's Option") to purchase the Remaining Lands if the Lease is surrendered, is terminated and/or Professional Building does not exercised the Tenant's Option; H. The Vendors and the Purchaser enter into this Agreement to facilitate the Excluded Area Conveyance and the Purchaser's Option; and I. This Agreement is authorized by by-law No. June, 2005. enacted on the 13th, day of NOW THEREFORE IN CONSIDERATION of the sum of TWO DOLLARS ($2.00) of lawful money of Canada, now paid by each party to the other and the mutual covenants contained therein, the parties covenant and agree as follows: Convevance I. Conveyance of Excluded Area: On or before the 1 st day of August, 2005 the Vendor shall deliver to the Purchaser an executed Transfer, sufficient to vest in the Purchaser title in fee simple, absolute, free and clear of all encumbrances and restriction of the Excluded Area for nominal consideration. Professional Building shall forthwith retain and instruct a firm of Ontario Land Surveyors to prepare and deposit, at the L TO (as hereinafter defined,) a reference plan of survey of the Excluded Area at Professional Building's expense. Option 2. Option to Purchase: The Vendors hereby grant to the Purchaser, the sole and exclusive (subject to the Tenant's Option) right and option (the "Option") to purchase the Remaining Lands at the price and on the terms and conditions set forth in this Option. This Option and shall be irrevocable by the Vendors and is conditional and open for exercise by the Purchaser within sixty (60) days (the "Deadline") following the receipt by Purchaser of notice of any of the following events (the "Occurrence") : a) written notice is given by the Vendors that the Lease has been terminated either because of the occurrence of an event of default that has not been remedied by Professional Building as provided in the Lease or because Professional Building has surrendered its leasehold interest; or b) the end of the third, fifth, sixth, seventh, eighth, ninth and tenth years of the term of the Lease if Professional Building has not exercised the Tenant's Option. The Vendors covenant to give the Purchaser written notice of an Occurrence. This Option may be exercised by the Purchaser by the delivery to the Vendors or the Vendors' solicitors on or before the Deadline, of a notice in writing of the Purchaser' intent to exercise this Option, signed by either the Purchaser or their solicitors. The date of receipt of such notice by the Vendors shall be the "Option Date". Upon the exercise of this Option, there shall be constituted an agreement of purchase and sale (the "Agreement of Purchase and Sale") between the Vendors, as vendor, and the Purchaser, as purchaser, whereby the Vendors agree to sell the Remaining Lands to the Purchaser and the Purchaser agrees to purchase the Remaining Lands from the Vendors at the price and on the terms and conditions herein set forth. The Agreement of Purchase and Sale shall contain the terms and conditions set out in Schedule "c" with necessary modification. 3. Closing Date: The Agreement of Purchase and Sale shall provide for a closing on the 60th day after the Option Date (or, where such closing date would otherwise be a date on which the Land Registry Office for the Land Titles Division of Durham (the "L TO") is not open, then the first date thereafter upon which the L TO is open) (the "Closing Date"). 4. The Purchase Price: The purchase price (the "Purchase Price") under the Agreement of Purchase and Sale shall be equal to the product of the (i) Fair Market Value of the Remaining Lands determined in accordance with this Agreement and (ii) the fraction which has as its denominator the cpr for the month of June, 2005 and as its numerator the cpr for the month immediately preceding the Closing Date. -3- 5. Boundaries: The Purchaser acknowledges that the boundaries of the Remaining Lands may be altered by the Vendor in accordance with the provisions of the Lease relating to the Tenant's Option. The boundaries and area of the Remaining Lands shall be conclusively determined by a reference plan of survey and certificate of a firm of Ontario Land Surveyors (the "Surveyor") addressed to both the Vendors and the Purchaser. The Vendors shall retain and instruct the Surveyor to prepare such reference plan of survey and certificate as soon as possible after the Option Date at the Vendor's cost. 6. "Fair Market Value" shall mean the fair market value of the Remaining Lands as unserviced and unimproved land determined as at June 13, 2005 in the following manner: (a) If the Vendors and Purchaser either cannot agree on the Fair Market Value or cannot agree the Single Appraiser who has determined the Fair Market Value on or before September I, 2005, then each shall, no later than September II, 2005, appoint an appraiser (the" Appraisers") for the purpose of determining the Fair Market Value; (b) The Appraisers shall prepare and submit their valuations to the other and to the Vendors and Purchaser, within thirty (30) days after September II, 2005. In preparing their valuations, the Appraisers shall have full access to all records of the Vendors and the Purchaser that relate to the Remaining Lands and each of the Vendors and the Purchaser covenants and agrees to fully cooperate with the Appraisers for such purposes, and shall provide all information and documentation requested by such Appraiser; (c) The Fair Market Value shall be: (i) the valuation determined by the Single Appraiser appointed by the Vendors and Purchaser in accordance with Section 6(a); (ii) in the event that the valuations provided by the Appraisers appointed by the Vendors and the Purchaser, respectively specify the same amount, the amount specified in the valuations; or (iii) in the event that the aforesaid two valuations specify amounts within ten per cent (10%) of each other, the higher amount specified in such valuations; or (iv) in the event that the aforesaid two valuations specify amounts not within ten per cent (10%) of each other then Mr. Wayne Crawford of Toronto shall value the Remaining Lands and his valuation shall be binding upon the Vendors and the Purchaser. (d) If Mr. Wayne Crawford shall be unable or unwilling to value the Remaining Lands or shall fail to submit a valuation within sixty (60) days of his appointment, then the Vendor or Purchaser may apply to a Judge of the High Court, General Division, to appoint an appraiser (the "Third Party Appraiser") and whose valuation shall be binding upon the Vendors and the Purchasers; and (e) The fees and expenses of Mr. Wayne Crawford or the Third Party Appraiser, as the case may be, shall be shared and paid equally by the Vendors and the Purchaser. 7. "CPI" shall mean the Consumer Price Index (all items for regional Cities) for Ontario (or any index published in substitution for the Consumer Price Index or any other replacement index reasonably designated by the Purchaser if it is no longer published) published by Statistics Canada (or any other success thereof or any other governmental agency, including a Provincial agency). In the case of any required substitution, the Purchaser shall be entitled to make all necessary conversations for comparison purposes. USE OF LANDS -4- 8. The parties hereto covenant and agree that the Lands shall and may be used as a parking lot. The Vendors further covenant and agree not to engage the Ontario Municipal Board by appealing the zoning of the Remaining Lands for parking purposes so long as the Lease remains in effect. 9. The Vendors covenant and agree to execute a Site Plan Agreement with Purchaser facilitating the use of the Remaining Lands as a parking lot (the "Site Plan Agreement"). The Vendors further consent to the registration of the Site Plan Agreement against the Remaining Lands and other abutting lands of the Vendor (the "Abutting Lands") until such time as separate parcels have been created at the L TO for the Remaining Lands and the Abutting lands so as to facilitate the release of the Site Plan Agreement from all but the Remaining Lands. 10. Professional Building agrees that it will perform its obligations under this Agreement and that the rights of the Purchaser under this Agreement have priority over Professional Building's rights under the Lease, Amendment and all agreements between the Vendors and Professional Building. Professional Building covenants and agrees to: (a) Construct a parking lot on the Remaining Lands in accordance with plans approved by the Chief Building Official of the Purchaser; (b) Construct the access (the "Access") to the parking area from King Street East on the Excluded Area; (c) Construct the balance of the Excluded Area to the same standard as the parking lot on the Remaining Lands; (d) Complete all construction in accordance with the Purchaser's standards and permit officials of the Purchaser to enter upon the Excluded Area and Remaining Lands to inspect construction during daylight hours without notice. 11. The Purchaser covenants and agrees to grant: (a) a non-exclusive licence to Professional Building to use the Access for pedestrian and vehicular access from King Street East to the Remaining Lands; and (b) a non-exclusive licence to the Vendors to use the Access for construction and vehicular access from King Street East to the Abutting Lands if no other access is available and only until another access is available. 12. Time shall in all respects be of the essence hereof provided that the time for doing or completing of any matter provided for herein may be extended or abridged by an agreement in writing signed by Vendor and Purchaser or by their respective lawyers who are hereby specifically authorized to do so. 13. This Agreement shall be read with all changes of gender or number required by the context. 14. Any Notice required to be served upon the Purchaser pursuant to the provisions of this Agreement shall be deemed to be good, valid and sufficient service upon the Purchaser if served personally, mailed by pre-paid registered mail or sent by facsimile transmission addressed to: Municipality ofClarington 40 Temperance Street Bowmanville, Ontario LIC 3A6 - 5- Attention: David Crome, Director of Planning Services Facsimile No. (905) 623-0830 and any notice required to be served upon the Vendors pursuant to the provisions of this Agreement shall be deemed to be good, valid and sufficient service upon the Vendors if served personally, mailed by pre-paid registered mail or sent by facsimile transmission addressed to: · Address and any notice required to be served upon Professional Building pursuant to the provisions of this Agreement shall be deemed to be good, valid and sufficient service upon the Vendors if served personally, mailed by pre-paid registered mail or sent by facsimile transmission addressed to: · Address or such other telefax number or address of which either party has notified the other party in writing. Any such notice telefaxed or mailed or delivered shall be deemed good and sufficient notice under the terms of this Agreement and iftelefaxed 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 it may reasonably be anticipated will cause the notice to be received reasonably expeditiously by the addressee. IN WIlNESS WHEREOF the parties hereto have executed this Agreement. SABINA INVESTMENTS INC. Per: Name: Title: Per: Name: Title: UWe have authority to bind the corporation ANKARA REALTY LIMITED -6 - Per: Name: Title: Per: Name: Title: VWe have authority to bind the corporation THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON Per: Name: Title: Per: Name: Title: VWe have authority to bind the corporation THE BOWMANVILLE PROFESSIONAL BUILDING LIMITED Per: Name: Title: Per: Name: Title: VWe have authority to bind the corporation SCHEDULE "c" ADDITIONALLY, the Purchaser agrees with the Vendor to the following terms and conditions: I. This transaction is to be completed no later than 5 :00 p.m. on the Closing Date, which date may be extended or amended by written agreement of the solicitors for the parties, and on which date vacant possession of the Property is to be given to the Purchaser. 2. This Agreement of Purchase and Sale may be executed in counterparts and delivery of an executed copy of same by each party to the other shall constitute complete offer and acceptance thereof. 3. The Purchase Price includes the fixtures now on the Property with the exception of the following fixtures or chattels which may be removed by the Vendor before the completion of this transaction: 4. The Vendor represents and warrants to the Purchaser that during the time the Vendor has owned the Property, the Vendor has not caused any building on the Property to be insulated with insulation containing ureaformaldehyde, and that to the best of the Vendor's knowledge no building on the Property contains or has ever contained insulation that contains ureaformaldehyde. This warranty shall survive and not merge on the completion of this transaction. 5. Except as provided in paragraph 6 hereof, the Vendor shall discharge all encumbrances and restrictions registered against title to the Property at her expense on or before the completion of this transaction. 6. The Purchaser is to be allowed until five (5) days prior to the Closing Date (the "Requisition Date") to examine the title to the Property at her own expense and to satisfY itself that there are no outstanding orders or deficiency notices affecting the Property and that its present use may be lawfully continued. The Vendor hereby consents to governmental agencies releasing to Purchaser details of all outstanding orders affecting the Property. The Vendor agrees to execute and deliver such further authorizations in this regard as Purchaser may reasonably require in this regard. 7. PROVIDED the title is good and free from all registered restrictions, charges, liens and encumbrances save and except for: (a) any registered restrictions or covenants that run with the land, provided that such are complied with; (b) any municipal agreements and registered agreements with publicly regulated utilities, providing such have been complied with or security has been posted to ensure compliance and completion as evidenced by letter from the relevant municipality or utility supplier; and (c) any minor easement for the supply of domestic utility or telephone services to the Property or adjacent properties. If on or before the Requisition Date any valid objection to title or to any outstanding work order or deficiency notice and which the Vendor is unable or unwilling to remove, remedy or satisfY and which Purchaser will not waive, this Agreement notwithstanding any intermediate acts or negotiations in respect of such objections, shall be at an end and all monies paid shall be returned with interest but without deduction by the Vendor to the Purchaser. Save as to any valid objection so made by such day and except for any objection going to the root of the title, the Purchaser shall be conclusively deemed to have accepted Vendor's title to the Property. 8. The Purchaser shall be credited towards the Purchase Price with the amount, if any, which it shall be necessary for the Purchaser to pay to the Minister of National Revenue in order to satisfY the Purchaser's liability in respect of tax payable by the Vendor under the non-residency provisions of the Income Tax Act by reason of this sale. The Purchaser shall not claim such credit if the Vendor 2 delivers on completion the prescribed certificate or the statutory declaration stating that the Vendor is not then a non-resident of Canada. 9. The Vendor shall deliver on completion of this transaction evidence of compliance of the transaction with the Family Law Act, R.S.O. 1990, c.F3, as amended. 10. Except as herein expressly provided, this Agreement shall extend to and be binding upon and enure to the benefit of the heirs, executors, administrators, successors and assigns of the parties hereto. II. If this transaction is subject to Goods and Services Tax (G.S.T.), then such tax shall be paid in addition to the Purchase Price. However, if the Purchaser provides to the Vendor, prior to the Closing Date, confirmation that the Purchaser is a registrant under the Excise Tax Act (Canada), including the Purchaser's registration number, together with an undertaking in a form reasonably acceptable to the Vendor to the effect that the Purchaser shall remit as required by the Act any G. S. T. payable in respect of the sale of the Property to the Purchaser and shall indemnifY the Vendor in respect of any G.S.T. so payable, then the Purchaser shall not be required to remit to the Vendor G.S.T. on the Closing Date. 12. If requested by Purchaser, Vendor will deliver any sketch or survey of the Property within Vendor's control to Purchaser as soon as possible and prior to the Requisition Date. If a discharge of any ChargelMortgage held by a corporation incorporated pursuant to the Trust and Loan Companies Act (Canada), Chartered Bank, Trust Company, Credit Union, Caisse Populaire or Insurance Company and which is not to be assumed by Purchaser on completion, is not available in registrable form on completion, Purchaser agrees to accept Vendor's lawyers personal undertaking to obtain, out of the closing funds, a discharge in registrable form and to register same on title within a reasonable period of time after completion, provided that on or before completion Vendor shall provide to Purchaser a mortgage statement prepared by the mortgagee setting out the balance required to obtain the discharge, together with a direction executed by Vendor directing payment to the mortgagee of the amount required to obtain the discharge out of the balance due on completion of this transaction. 13. The Property shall remain at the risk of the Vendor until the completion of this transaction. 14. The Vendor covenants that the Property will be in a clean condition immediately prior to the completion of this transaction. This covenant shall survive and not merge on the completion of this transaction. 15. This Agreement shall be effective to create an interest in the Property only if Vendor complies with the subdivision control provisions of the Planning Act by completion of this transaction, and Vendor covenants to proceed diligently at her expense to obtain any necessary consent by prior to the completion of this transaction. 16. A TransferlDeed for the Property shall, save for the Land Transfer Tax Affidavit, be prepared in registrable form at the expense of the Purchaser. If requested by the Purchaser, Vendor covenants that the Transfer/Deed to be delivered on completion shall contain the statements contemplated by Section 50(22) of the Planning Act, RS.O. 1990, c.P.B, as amended. 17. The Vendor and Purchaser covenant and agree to cause their respective solicitors to enter into a document registration agreement in the form adopted by the Joint LSUC-CBAO Committee on Electronic Registration of Title Documents on October 1,2003 (the "DRA") to govern the electronic submission of the transfer/deeds for the Property to the applicable land registry offices ("Land Registry offices"). The DRA shall also provide that if there is a problem with the Teraview electronic registration system which does not allow the parties to electronically register a transfer/deed for the Property on Closing, the Closing Date shall be deemed to be extended until the next day when the said system is accessible and operating for the Land Registry offices applicable to the Property. 18. On the closing of the transaction, the Vendor shall provide to the Purchaser, the Purchaser's form ofthe following documents: a. Undertaking to Re-adjust 3 b. Section 116 of the Income Tax ActIFamily Law Act Affidavit c. Declaration of Possession d. Construction Lien Act affidavit 19. Any rents, mortgage interest, realty taxes including local improvement rates and unmetered public or private utility charges and unmetered cost of fuel, as applicable, shall be apportioned and allowed to the day of completion, the day of completion itself to be apportioned to Purchaser. 20. The Purchaser will pay to the Vendor's direction forthwith after receipt by the Purchaser of the written particulars of them, the Vendor's reasonable legal fees and disbursements to the date of execution by the last party to execute this Offer to Sell respecting the Vendor's solicitor's representation of the Vendor in connection with the proposed expropriation by the Purchaser of the Property, and negotiating and settling the terms of this Agreement. 21. Time shall in all respects be of the essence hereof provided that the time for doing or completing of any matter provided for herein may be extended or abridged by an agreement in writing signed by Vendor and Purchaser or by their respective lawyers who are hereby specifically authorized to do so. 22. This Agreement shall be read with all changes of gender or number required by the context. 23. Any Notice required to be served by the Vendor upon the Purchaser pursuant to the provisions of this Agreement shall be deemed to be good, valid and sufficient service upon the Purchaser if served personally, mailed by pre-paid registered mail or sent by facsimile transmission addressed to: Municipality ofClarington 40 Temperance Street Bowmanville, Ontario LIC 3A6 Attention: David Crome, Director of Planning Services Facsimile No. (905) 623-0830 and any notice required to be served by the Purchaser upon the Vendor pursuant to the provisions of this Agreement shall be deemed to be good, valid and sufficient service upon the Vendor if served personally, mailed by pre-paid registered mail or sent by facsimile transmission addressed to: * Address or such other telefax number or address of which either party has notified the other party in writing. Any such notice telefaxed or mailed or delivered shall be deemed good and sufficient notice under the terms of this 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 oftransportation which it may reasonably be anticipated will cause the notice to be received reasonably expeditiously by the addressee. 24. For the purposes of this 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 and none of which has been avoidable by the exercise of reasonable effort or foresight by the parties. 4