3063 To authorize the execution of a Memorandum of Understanding with First Capital (Tillsonburg) Corporation and First Capital Acquisitions Corp. (2)THE CORPORATION OF THE TOWN OF TILLSONBURG
BY-LAW 3063
ABY -LAW to authorize the execution of a Memorandum of Understanding with First
Capital (Tillsonburg) Corporation and First Capital Acquisitions Corp.
WHEREAS pursuant to Section 8 of the Municipal Act, 2001, S.O. 2001, C.25, a
municipality has the capacity, rights, powers and privileges of a natural person for the
purpose of exercising its authority under this or any other Act,
AND WHEREAS it is deemed expedient to enter into a Memorandum of Understanding
between The Town of Tillsonburg, First Capital (Tillsonburg) Corporation and First
Capital Acquisitions Corp. for the purpose of expansion of the Tillsonburg Town Centre
related to a New Canadian Tire Facility and Servicing/Expansion of the Norfolk Mall.
NOW THEREFORE the Council of the Corporation of the Town of Tillsonburg enacts
as follows:
1. That the following Memorandum of Understanding attached hereto is hereby
approved:
Schedule "A" - Memorandum of Understanding
2. That Schedules "A" hereto attached are declared to be part of this by-law as if
written and incorporated herein.
3. That the Mayor and Clerk are hereby authorized to execute the document attached
hereto and such other documents to implement the matters herein.
4. This By -Law shall come into force and effect upon enactment.
READ a First, Second and Third Time, Signed, Sealed and Numbered 3063 this
16th day of June 2003.
L 1 erk
NI. A I l ("I A_ 1_. I_ r
If:I�.II`[T��I`
June 12, 2003 Via Fax &. Overnight Courier
Confidential and Without Prejudice
Mr. Roderick MacDougall
Cohen Highley LLP
1 London Place
255 Queen's Avenue, 11 t" Floor
London ON N6A 5R8
Dear Sir:
Douglas Quick
Direct Line: 416.597.4045
E-mail: dquick@goodmancarr.com
File Number: 9701134 (0204196)
Re: First Capital (Tillsonburg) Corporation ("First Capital") and the Town of Tillsonburg
-Proposed Agreement
Further to Patrick Devine's letter of October 25, 2002 and the ensuing correspondence and telephone
conferences between us, I have consolidated the various understandings below as a consolidated
revised version of the October 25, 2002 letter. The intention is for this to be a binding Memorandum of
Understanding which will lead to formal documentation. I enclose a comparerite which shows the
changes. Our clients will be relying upon this document to proceed with the other parts of the related
transactions and accordingly will execute a copy of this and send it to you in the next day for
corresponding execution by the Town. Please let me know at your earliest convenience if this is not
acceptable.
A. Matters Regarding the Tillsonburg Town Centre
1. The Town will obtain the additional lands (the "Additional Lands") required to
accommodate the New Canadian Tire Facility at its sole cost and expense prior to
commencement of construction of the New Canadian Tire Facility. The Additional
Lands will be added to the premises leased under the Ground Lease. The rents payable
tinder the Ground Lease will remain unchanged except that First Capital will be
responsible for the payment of realty taxes in connection with the Additional Lands.
2. Contemporaneous with the Additional Lands being incorporated into the premises
demised under the Ground Lease, and subject to the Additional Lands being sufficient
to accommodate Canadian Tire's new store, as determined by the parties acting
reasonably, First Capital will surrender those surplus lands fronting on Venison Street to
the north (rear) of the New Canadian Tire Facility to the extent same are required by
the Town in order to facilitate providing the Additional Lands. Any lands so
surrendered will no longer form part of the premises leased under the Ground Lease.
Cat�E��il M51A 3W5 t 416.595.2300 f 416.595.0567
.tlr�l j
lit
3. The Town will not levy any development charges in connection with the development
of the Additional Lands or the new Canadian Tire facility and related improvements
("New Canadian Tire Facility").
4. The Town will pay First Capital the sum of $400,000.00 (the "Town's Contribution")
toward the infrastructure improvements for the development of the Additional Lands
and the New Canadian Tire Facility. First Capital will pay or arrange for the payment of
all development costs for improvements to the Additional Lands in excess of the
foregoing amount. The Town's Contribution will be made on substantial completion of
the construction of the New Canadian Tire Facility and infrastructure improvements.
5. The Town will, at its sole cost, obtain any Official Plan amendments, any zoning
amendments and all other regulatory approvals (including but not limited to
conservation authority approvals) required to permit the Additional Lands to be utilized
for the uses permitted in the rest of the Tillsonburg Town Centre and particularly the
new Canadian Tire Facility. All costs of obtaining same, including costs for feasibility
studies (such as engineering and traffic studies), professional fees and other consultants'
fees, and other necessary costs, will be the Town's responsibility. First Capital will
provide all reasonable assistance and co-operation to assist the Town of Tillsonburg
with the applications. In the event that any hearings before the Ontario Municipal
Board will be longer than two weeks First Capital will consider requests for
contributions to the costs of the hearing. Provided, however, that at the same time the
Town will also consider requests by First Capital for an extension to the term of the
Town's office lease in second storey of the Tillsonburg Town Centre.
6. The Town will negotiate in good faith and amend the terms of the Ground Lease to
provide First Capital with the right to acquire the Town's freehold interest in the
Tillsonburg Town Centre (as enlarged by the Additional Lands) . This amendment will
be upon terms to be mutually agreed upon, and will be finalized and become effective
prior to the date First Capital is required to commit capital to fund these expenditures.
B. Matters Relating to the Norfolk Mall
The following provisions are conditional upon First Capital through its related corporation First Capital
Acquisition Corp., (FCA) closing the purchase of the Norfolk Mall. It is understood that all rights and
obligations hereunder respecting the Norfolk Mall will be assigned and assumed by the entity actually
acquiring title to the Norfolk Mall and that neither First Capital or FCA shall have further obligations
with respect thereto.
(a) Extension of Municipal Services to the Norfolk Mall
1. Tillsonburg/Oxford agrees that upon the request of the First Capital entity
owning the Norfolk Mall ("First Capital -Norfolk") it will extend municipal
sanitary sewer and water services to the Norfolk Mall in Norfolk County.
2
2. First Capital -Norfolk will be responsible for the cost of the extension of sanitary
sewer and water services on the understanding that the design and routing of
such extension is in accordance with reasonable engineering standards and
practices acceptable to the Town of Tillsonburg and County of Oxford and such
costs shall include all engineering costs incurred.
The Town will recover and pay to First Capital -Norfolk the proportionate share
of the cost from any subsequent owner that makes use of the services
constructed by First Capital -Norfolk.
3. First Capital -Norfolk will pay to the Town a lump sum amount of $400,000.00
upon the commencement of operation of the sanitary and water services referred
to in Section B(a)2 above. These payments are to compensate Tillsonburg for
the use and operation of the downstream portion of the water and sanitary
services and shall constitute the sole payments by the First Capital -Norfolk Mall
in such regard.
(b) Development at the Norfolk Mall
4. Tillsonburg will support development of the Norfolk Mall as described below:
(a) An expansion of the existing Wal-Mart store to approximately 95,000
square feet (including a mezzanine area).
(b) An expansion of the existing Zehrs supermarket to approximately
100,000 square feet including a mezzanine area of approximately 13,000
square feet.
(c) The "de -tenanting" of a portion of the existing enclosed mall, which will
result in a decrease in the interior, mall space of approximately 30,000
ft' leaving a remaining interior mall area of approximately 25,000 square
feet. This does not include exterior pad space of 5,000 square feet. This
"de -tenanting" will take place over a period of 12 to 24 months in order
to minimize the disruption to existing tenants.
(d) The remaining portion of the mall between the two anchor stores will be
selectively improved.
(e) The long-term development of the Norfolk Mall may include the
construction of a number of additional free-standing buildings that
would accommodate highway commercial, service commercial and a
reasonable amount of retail commercial uses. It is intended that such
development would complement and not directly compete with the
smaller merchants in downtown Tillsonburg.
3
5. Tillsonburg will withdraw its objections to the Loblaw consent and minor
variance applications having OMB File Numbers CO20318 and V020504.
(c) Boundary Adjustment
6. Tillsonburg agrees to actively pursue the municipal boundary adjustment to
include the Norfolk Mall lands in Tillsonburg following the expiration of the
moratorium on boundary adjustments as detailed in the Boundary Adjustment
Agreement.
7. First Capital -Norfolk will support a boundary adjustment to bring its lands into
Tillsonburg.
We look forward to receiving your comments at your earliest convenience in order that the appropriate
formal documentation can be prepared and executed by the parties.
Fours very truly,
2
Douglas nick
DQ:asl
copy to: First Capital (Tillsonburg) Corporation
We hereby acknowledge and agree to the foregoing:
First Capital urg) Corporation
Per: c/s
Title:
Per:
Name:
Title:
First Capital uisitio s Corp.,
Per. LY c/s
Na (e.lki�
Title: Vi c .. P(,P- _S
Per:
Name:
Title:
4
The Corporation of t Town of Tillsonburg
Per: C/s
Name:; rte,
Per.
Name:
Title:
L:\LAWYERS\DQ\0204196 - Norfolk PJD\Letters\Town MOU Itr June 10, 2003.wpd
5