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3089 To amend Appendix "A" of By-Law 2053 as amended by By-Law 2692 being a by-law to authorize the execution of an agreement for the construction of the Tillsonburg Town Centre - New Canadian Tire StoreTHE CORPORATION OF THE TOWN OF TILLSONBURG BY-LAW NO. A By -Law to amend Appendix "A" of By -Law 2053 as amended by By -Law 2692 being a by-law to authorize the execution of an agreement for the construction of the "Tillsonburg Town Centre - New Canadian Tire Store" WHEREAS the Corporation of the Town of Tillsonburg entered into an Agreement with Trottier Investments Limited on May 7t-"/ 1979 including and Indenture of Lease, all as authorized by By -Law 2052 relating to the development of the "Tillsonburg Town Centre" in phases. AND WHEREAS the Agreement was transferred and assigned to Sifton Properties Limited and Sifton assumed all of the obligations and liabilities of Trottier in respect of the Development Agreement and Ground Lease; AND WHEREAS by By -Law 2566, the Development Agreement and Lease, adopted pursuant to By -Law 2053, was amended to provide for the development of Phase ii of the Tillsonburg Town Centre AM WHEREAS by By -Law 2692 approved of the assignment to Centrefund Acquisition Corporation (now First Capital (Tillsonburg) Co.rporation) from Sifton Properties Ltd as well as certain amendments to the Development Agreement and Ground Lease. AND WHEREAS Firs-,-- Capital has agreed to enter into a new sublease with Cajaadian Tire Real Estate Limited for an enlarged and differently located and configured area for its new premises on land adjacent to but outside of the Developers Lands; AND WHEREAS it i,, -D deemed expedient to amend the Ground Lease and DevelO]Dment as originally provided for in By -Law 2053 and amendments thereto to provide for the construction of a New Canadian Tire Store BE IT THEREFORE enacted by the Council of the Corporation of the Town of Tillsonburg as follows: 1. THAT the attached Agreement marked as Appendix "All to this Ey-Law is hereby approved and the Mayor and Clerk are hereby authorized to execute the agreement as hereto attached as well as such other documents to give effect to the matters contained therein. READ A FIRST AND SECONDED TIME THIS 12TH DAY OF JANUARY 2004. READ A THIRD TIME ASSED SIGNED SEALED AND NUMBERED THIS DAY OF JANUARY 2004 7;Y 2 0 JANUARY M or t6 Clerk 01/26/2004 .14:15 FAX 519 672 5960 COHEN HIGHLEY Z005 AMENDING AGREEMENT, ACKNOWLEDGE AND CONFIRMATION TRIS AGREEMENT is made the day of November, 2003. BETWEEN: THE CORPORATION OF THE TOWN OF'CTYEESONBURG (hereinafter called the "Town") OF THE FIRST PART; FIRST CAPITAL (TILLSONBURG) CORPORATION (hereinafter called "First Capital") WHEREAS: OF THE SECOND PART: A. The Town and First Capital are parties to the Ground Lease and the Development Agreement P � both as hereinafter defined with respect to the development known as TillsonburTownTow Centre, located on the lands more particularly described in Schedule "A" hereto B. The Txllsonburg Town Centre was created in implementation ol' redevelopment a redevelo plan for P P the downtown area of Tillsonburg as set out in By-law No. 1851 and approved b the then PP y en Minister of Treasury, Economics and Inter-Covemmental Affah-s; C. On or about November 4, 1999 Centrefund (Tillsonburg) Corporation (as First Capital was P then known) exercised its option to add additional lands to the lands subject to the Ground Lease pursuaDt to Section 4.3 of the Ground Lease; D. A major tenant in the Tillsonburg Town Cenixe has been Canadian Tire Corporation, pursuant to a sublease, notice ofwhich was registered as histrument No. 294060 on February 23, 1984 (the "Old CT Lease"); E. The Old CT Lease is expiring; F. Canadian Tire Real Estate Limited ("Canadian Tire") has agreed to enter into a new sublease with First Capital (the "New CT Lease") but for an enlarged and differently located and configured area for its new premises as set out in Schedule "A 1 " (the "Additional Lands"), which lands are located adjacent to but outside of the Redevelopment Area and the Developer's Lands; G. In order to satisfy conditions to the New CT Lease, First Capital requires, and the Tovcm has agreed to provide, certain amendments to the Ground Lease and Development Agreement (botli as hereinafter defined), as well as certain confirmations and aelmowledgements, all as hereinafter set forth; NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration ofthe sum of Two Dollars ($2.00) and other hood and valuable consideration, the receipt and sufficient of P y which is hereby acknowledged, the pariies hereto covenant, agree, acknowledge and confirm as follows: 01/26,/2004 14:15 FAX 519 672 5960 COHEN HIGHLEY Z006 ARTICLE 1 - INTERPRETATION 1.1 For the purposes of this agreement, the followina terms shall have t he follow' respectively. b i nb meatungs (a) "Developer" means the developer from time to tameursuan p t to the Development Agreement. (b) ''Development Agreement" means the development e ' p agreement with respect to the Tillsouburg Town Centre dated May 7, 1979 made between 'rr ottler and the Town as amended by (i) the Agreement dated the 6' day of September,1979 made among Trottrel , the Town and Georges L.J. Trottier, (ii) the Agreement dated May y 2 S, 1980 made among Trottier, Siflon, the Town and Georges L.J. Trottier, (iii) the Assignment and g� Assumption Agreement dated November 4, 1981 made among The Clarkson Company Ll nited as receiver -manager of the undertaking, property and assets of TrotticT, Canadian Imperial Bank of Commerce, Bank of Montreal P and Sifton, (iv) the agreement dated November 25, 1991 made between Sifton and the Town (the "1991 Agreement Amending g Development Agreement"); and (v) the agreement dated November 9, 1994 made betweene tr C n efund (Tillsonburg) Corporation - and the TownAmend' the 1994 ( Amending Agreement, Acknowledgement and Confirmation"). (c) "Ground Lease" means the lease with respect to the Tillsonburg P Town Centre lands dated July 31, 1979 made between the Town as Landlord and Trottier, as Tenant, as amended by (1) the agreement dated September 5, 1979 made among the Town Trottier and Georges L.1 Trottier, (ii) the agreement dated May 16, 1980 made among the TTr 'ie b Town, Otl �' slid Siflon, (iii) the assignment and assumption agreement dated No�vexnber 4 1981 made along The Clarkson Company Limited as receiver -manager of the undertaking,property and p p y n assets of Trottier, Canadian Imperial Bank of Commerce, Bank of Montreal and Sift -on iv the agreement dated November 1, 1989 atade between Sifton and the Town and the November 4, 1999 letter from Centrefund (Tillsonburg) Corporation to the Town exercising e thoption P in Section 4.3 of the 1994 Amending Agreernent, Acknowledgement and Confirmation; and (v) the 1994 .Amending Agreemt,-nt, Acknowledgement grid Confinnation. (d) "Lessee" means the lessee from time to time pursuant to the Ground Lease. (e) "Trottier" means Trottier Investments Limited, the original Lesseeursuant to the Ground P nd Lease and the onglnal Developer pursuant to the Development Agreement. 1.2 Unless otherwise defined herein, all other capitalized terms used herein shall have the meanings assigned thereto in the Ground .Lease or the Development Agreement, as the context inay require. 1.3 Schedules The .following Schedules are attached hereto and form a part hereof: Schedule "A" - Legal Description of Tillsonburg Town Centre. Schedule "Al'' - Legal Description of the Additional Lands. Schedule "A2" - Legal Description of the Surrendered Lands. Schedule "B" - Revised Project Site Plan. Schedule "C" - Revised Plan of the Redevelopment Area. Schedule "D" Plan of the Additional Lands. Schedule "E" - Paan of the Surrendered Lands 2 01.,'"'16,,2004 14:15 FAX 519 672 .5960 COHEN HIGHLEY (a 007 ,ARTICLE 2 - AMENDMENTS TO GROUND LEASE 2.1 Definitions Schedule "A1" to this Amending Agreement shall be added to the Ground Lease as Schedule "A 1 " thereto. Schedule "A2" to this Amending Agreement shall be added to the Ground Lease as Schedule "A2" thereto, Schedule "C" to this Amending Agreement shall replace Schedule "D" to the Ground Lease. The definitions of "Lands" in the Ground Lease is hereby amended by adding at the end the words "together with those lands described in Schedule "Al " hereto and excepting the lands described in Schedule "A2_" The definition of "Development Agreement" in the Ground Lease is amended by adding at the end thereof the words "as amended from time to time." There shall be added to the Cnowid Lease the following new definition: ''Additional Lzwds" means that part of the Lands described in Schedule "A1" hereto. "Part 10 Lairds" nneans that part of the Lands described firstly in Schedule "Al " hereto." 2.2 Additions/Surrenders to the Lands The Additional sands are intended, by operation of this Amending Agreement, to be leased by the Town (as Lessor under the Ground Lease) to First Capital (as Lessee under the Ground Lease) and to be subject to the Ground Lease on the same terins and conditions as the Lands originally leased under the Ground Lease save and except as expressly set out in this Amending Ageement. The parties acknowledge that the addition of the Part 10 Lands to the Lands under the Gro "d Lease shall be deemed to have been effective as at and from November 4, 1999. 2.3 The Town and First Capital agree that the Surrendered Lands are intended, by operation of this Amending Agreement to be surrendered by First Capital, as Lessee under the Ground Lease to the Town as Lessor under the Ground Lease and to be forever free and discharged of any obligations tinder the Ground Lease save and except only as expressly set out in tazas Amending Agreement. 2.4 A new Section 4.04 is hereby added to the Ground Lease as follows: "4.04 The Rent as otherwise detemiined under this Lease shall not be affected, either to increase or decrease the amount of the Rent otherwise payable, by the addition of the Additional Lands to be part of the Lands nor by the deletion of the Surrendered Lands. Notwithstanding the foregoing, the Rent as otherwise determined under this Lease has been and is increased by the sum. of $20,000.00 per annum frown November 4, 1999. For greater certainty it is acknowledged and agreed that in calculating the Income of the Development for the purposes of this Article IV only that fraction of the incon7e of businesses on the Additional Lands equal to the gross leasable area of the premises under the Old CT Lease divided by the gross leasable area of the premises under the New CT Lease shall be included. Provided, however, that the Additional Rent shall be adjusted to reflect the realty taxes attributable to the addition of the Additional Lands and the deletion of the Surrendered Lands." 01,,"26/2004 14:16 FAX 519 672 5960 COHEN HIGHLEY Zoos 2.5 Revisions to Dnive�uvays, parl�ir�g Areas and Bridge Street: The Towaj shall, at its sole cost, cause axed do all such things including but not limited to the acquisition of all necessary lands and the passage of the appropriate road opening, closing mid alterin.b by-laws in order to permit the realignment of Bridge Street and the driveways and parking areas all as shown on the Project Site Plan, as amended by this Amending Agreement. Notwithstanding the foregoing, the actual reconstruction of all such roads, driveways and parking areas shall be performed by First Capital. The Town agrees that upon substantial completion of such construction work it shall pay to First Capital as its contribution towards the costs of such construction the fixed sum of $400,000.00. ARTICLE 3 - CONFIRMATIONS AND ACKNOWLEDGEMENTS RE GROUND LEASE 3.1 Income of the Development The Town confirms that it has reviewed and approved the calculations of "Income of the Development" for the purposes of the Ground Lease for all Lease Years ending prior to the date hereof and that no rent is payable to the Town pursuant to Section 4.00(a)(ii) in respect of any such Lease Years. 3.2 Approval of Site Flan Pursuant to Section 15.02 of the Ground Lease, the Town hereby approves the proposed alterations in, and additions and strUCturiLl improvements to the Project substantially in accordance with the Project Site Plan attached hereto as Schedule "B" (the, "Project Site Plan"). 3.3 Approval of New CT Lease The Town (as Lessor under the Crround Lease) hereby consents to the entering into by First Capital (as Lessee under the Ground Lease) of the New CT Lease as a sub -lease under the Ground I.,ease in accordance with Article XVI oi'the Ground Lease. 3.4 Not a Replacement Development it is expressly agreed that the addition of the Additional Lands and the constaiction of the new store thereon ,pursuant to the New CT Lease do not constitute the creation of a Replacement Development for the purposes of Article XXVI of the Ground Lease_ ARTICLE 4 - AMENDMENTS TO THE DEVELOPMENT AGREEMENT 4.1 Definitions (a) Schedule "A" of the Development Agreement is replaced by the Plwi attached as Schedule "C" hereto. (b) Schedule "B" to this Amending Agreement is added to the Development Agreement as Schedule "E1" thereto_ (c) All references in* the Development Agreement to the "Redevelopment Area" are hereby replaced by the words "Community Improvement Plan Area." (d) Schedule "D" to this Amending Agreement is added to the Development Agreement as Schedule "C X "" thereto. (e) At the end of the definitions of "Developer's Lands" the words "together with the lands outlined in Schedule "Cl" shall be added at the end, 4 01 % ?0 2004 14:16 FAX 519 67111 5960 COHEN HIGHLEY 009 (f) All references in the Development Agreement to the "Redevelop-ment Plan" are hereby replaced by the words "Community Improvement Plan." 4.2 The Town a6mowledges that portions of the Additional Lands, as defined under the Ground Lease, are outside of the area constituting the Redevelopment Plan as defined by the Development Agreement. The Town further acknowledges and agrees that in order to properly implement the within amendments to the Ground Lease and the Development Agreement that the Redevelopment Plan must be amended to include the Additional Lands and, accordingly, the Town hereby agrees to take necessary steps to forthwith process an amendment to the Redevelopment .Plan (including, if appropriate, approval of a revised comprehensive plan pursuant to the Community Improvement Plan provisions in Section 28 of the Planning Act, R.S.O. 1990 Chap. p.1.3) sufficient to pem-lit the Town to fulfill all of its obligations under the Ground Lease and the Development Agreement as amended by this Agreement. ARTICLE 5 - CONFIRMATIONS AND ACKNOWLEDGEMENTS RE DEVELOPMENT AGREEMENT 5.1 Additional Parking Lands The parties acknowledge that First Capital's current plans for Pbase 2 of the Development may require a parking plan different than the plan set out in the Original Parking Plan and accordingly, the provisions of the 1991 Agreement Amending Development Agreement relating thereto, including, without limitation, Section 6 thereof, may not be applicable. ARTICLE 6 - GENERAL 6.1 Authorizations and Approvals The Town confirms that it has passed all necessary by-laws authorizing the execution and delivery of the Ground Lease, Development Agreement and this agreement and has obtained all necessary consents and approvals from all governmental authorities having jurisdiction over the Town or the Development necessary to make the Ground Lease, the Development Agreement and this agreement binding upon and enforceable against the Town, including without Umi tati on, such consents as may be required from the Government of the Province of Ontario and the Ontario Municipal Board. 6.2 Status Confirmation The Town acluiowledges and confirms that as of the date hereof (a) the terms, conditions and covenants set out in the Ground Lease and the Development Agreement represent the entire terms, conditions and covenants pertaining to the matters set forth therein; (b) the Ground Lease and the Development Agreement are good, valid and sub sistilig and in full force and effect and enforceable in accordance with their respective terms and, to the knowledge of the Town, no event has occurred which with the- Eriving of notice or lapse of time or both would constitute a default by the Developer under the Development Agreement or the Lessee under the Ground Lease; and, (c) so far as the Town is aware, all obligations of the Lessee pursuant to the Ground Lease and all obligations of the Developer pursuant to the Development Agreement have been performed and complied with. to the date hereof. 5 01%26%2004 14:16 FAX 519 672 5960 COHEN HIGHLEY Z010 6.3 Effective Agreement This agreement shall only be effective if the transaction of purchase and sale between Si;ton and First Capital is completed on the Closing Date, or such earlier or later date as Sifton and First Capital may agree, failing which, this agreement shall be terminated and of no fuirther force and effect. If the transaction of purchase and sale between Sifton and First Capital is completed as aforesaid, the provisions hereof shall be deemed to amend and modify the Ground Lease and Development Agreement, respectively and the confirmations and acknowledgements given by the Town shall be relied upon by First Capital and the successors and assigns of the rights and obligations of First Capital pursuant to elle Ground Lease and Development Agreement_ 6.4 Ground Lease and Development Agreement Unamended Except as otherwise amended herein, the Grround Lease and Development Agreement shall remain unamended and in full force and effect and time shall continue to be of the essence of every provision thereof. 6.5 Notice Pursuant to Section 8.12 of the Development Agreement and Section 31.00 of the Ground Lease, all notices, demands and requests which ay be or are required to be given pursuant to the Growid Lease and/or the Development Agreement shall be addressed to First Capital as .follows: First Capital (Tillsonburg) Corporation Suite 2820, BCE place 161 Bay Street Toronto, ON M5J 2S1 Attention: President and Chief Executive Officer 6.6 Binding Effect Subject to Section 6.3 this agreement shall enure to the benefit of and be binding upon the parties hereto and their respective successors and permitted assigns. 6.7 Gaverninz Law This agreement shall be governed by and construed in accordance with the laws of the Province of Ontarl o and the laws of Canada applicable therein. IN WITNESS WHEREOF the parties hereto have executed this agreement as of the date first above written. THE CORDO TION Off' THE TOWN OF TILL ONB per.. Title: -��"' `-;7 JAPer: w Name. Title: 6 01,,`26/2004 14:16 FAX 510 672 5960 COHEN HIGHLEY Z 011 FIRST CAPITAL (TILLSONBURG) CORPORATION Per; Name: Title: Per: Name: Title: We have authority to bind the corporation. 0 01 26 200.1 14, 16 FAX 519 672 5960 GOHEN HIGHLEY 0 012 SCHEDULE "A" FIRSTLY: All of Lots 976, 9773 977A, 9759 9793, 981, 982, 983, 984, 985, 986, 9877 9883 9893 1047, 1048, 1049, 1050, 10515 10529, 1053, 1054, 10553 1056, 1057, 1058, 10593 1060, 1061, 1062, 1063, 1121, 1122, 1123, 11299 1130, 1132, 11333 1134 & 1135, Plan 500; All of Market Square, Part of Lots 9809 9905 1046, 1128, 1131, 1136, 11373 1138, 1188 & 1191, flan 500; Part of Elgin, Foundry, Harvey, Queen, Harris, Market, Raynes, Ridout & Hale Streets and Part of the lane ]mown as Cat Alley betweein Ridout Street and Market Square; designated as Fart 1, 41R5389, Subject to easements in favour of Union Gas Limited as in 274091 & 274370 & 399699 Tillsonburg. Being all of PIN 00039-0293(8) 8 Ol 2G % 2004 14:.17 FAX 519 672 5960 COHEN HIGHLEY 014 SCHEDULE "A 1 '' FIRSTLY: Part Lot 990 and Lots 991 and 994, Plan 500, Tillsonburg, being all of PIN 00039-0048(8). SECONDLY Part Lots 990, 1026 and. 1044, Plan 500, Tillsonburg, being all of PIN 00039-0224(8). THER DLY : That fart of Lots 1013, 1014, Plan 500 Tillsonburg, designated as Part on Plan 45R- 3 being part of PIN 00039-0018(R) FOURTHLY: That Part of -Mark -et Street between Bridge and Venison Street, Tillsonburg, designated as Part on Plan 40R-- , being part of PIN 00039-0222(R). 011 01. 26/2004 14:17 FAX 519 672 5960 COHEN HIGHLEY 2015 SCHEDULE "A? " FIRSTLY: That Part of Lot 990 and Lots 991 and 994, Plan 500, Tillsonburg , designated as Part on Plan 40R- , being part of PIN, 00039-0048(R). SECONDLY: That Part of Lots 976, 977, 977A, 978, 979, 981, 982, 983, 984, 9853 986, 9877 9882 989,104751048, 1049, 1050, 10519 1052, 10537 10543, 1055, 10.56, 1057, 1058,10597 1060, 1061, 1062, 10639 11213 1122, 11237 11295 11303 1132, 11337 1134 & 1135, Flan 500; A11 of Market Square, Part of Lots 980, 9903 1046, .1.1281 11313 1135, 1136, 11389 1185 & 1191, Plan 500, Part of Elgin, Foundry, Harvey, Queen, Harris, Market, Raynes, Ridout & Hale Streets and Part of the lane known as Cat Alley between Ridout Street and Market Square; designated as Part 1, 41R5389, Subject to easements in favour of Union Gas Limited as in 274091 & 274370 & 399699 Til.lsonburg, designated as part on Plan 40R- , being Part of PIN 00039-0293(10 1O 01-'2G 2004 14:16 FAX 519 G72 5960 COHEN HIGHLEY Z 013 I IT VGNiSON STREET - - • ( VENISON STREET I LOT gi e L ' LOT 101:1 L poi eaz da '�PROPOSED 4 .; Or � CA(4ADIAN TIRE RETAIL AND ,g,V , AUTOMOTIVE CEDE \ 1 PROTOTYPE ,o, M � i+o.w. �' i — . 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