PHASED DEVELOPMENT AGREEMENT

Transcription

1 APPENDIX A PHASED DEVELOPMENT AGREEMENT This Agreement dated for reference the 10 th. Day of February, 2016 BETWEEN: BC Ltd. (Incorporation No. BCO443602) PO Box 318 Sicamous, B.C. V0E 2V0 (the "Developer") AND The District of Sicamous PO Box 219, 446 Main Street Sicamous, B.C. V0E 2V0 (the "District") WHEREAS A. The Developer is, or is entitled to become the owner of land legally described as: PID Lot Remainder Lot 1, District Lots 528 and 529, Plan KAP82686, Except Plan KAP91776, KDYD (the "Lands"); AND Lease Number Covering District Lot 6501, Kamloops Division Yale District B. The Developer applied to the District for Development Permit DP for the development of a 276 Slip Marina facilities under the District's Official Community Plan Bylaw No. 750, 2009 which was issued on October 28, 2014, to permit the development on the Lands as generally depicted in Schedule "A" attached to this Agreement; C. The Developer has undertaken to provide certain amenities in conjunction with the development of the Lands and the parties wish to ensure that the provisions of Development Permit DP and the current designated zones CDZ.07 RM Resort Marina Zone and CDZ.06 RCR Resort Commercial Residential Zone in Zoning Bylaw No. 101, 1993, copies of which are attached here to as Schedule B, continue to apply to the Lands for the Term more particularly set out in this Agreement, and that the Lands are developed in the phases and in the sequence identified herein, and that the amenities are provided in conjunction with the development of the Lands and in the sequence provided for in this Agreement; D. The District s Council has, adopted the District of Sicamous Phased Development Agreement Bylaw No. 905, to authorize the execution of this Agreement, a copy of which is hereto attached as Schedule C. Page 1 of 44

2 NOW THEREFORE in consideration of the mutual promises set out in this Agreement, the Developer and the District agree pursuant to section of the Local Government Act as follows: 1.0 DEFINITIONS AND INTERPRETATION 1.1 In this Agreement: "Amenities" means: (a) (b) the provision of a statutory right of way within the Lands required under section X8.0X; the improvements to the Lands required under sections 12.0 through 16.0 and "Development" means the development of the Lands as generally depicted on the Site Plan attached as Schedule "D" to this Agreement. "Development Phase" or "Phase" means a phase of the development, including all services and amenities contemplated or required in connection with that Phase, as depicted on the Phasing Plan (the "Phasing Plan") attached as Schedule "E" to this Agreement. "Force Majeure" means any act reasonably beyond the control of the party seeking to invoke the benefit of Force Majeure under this Agreement including but without restricting the generality thereof, the seasonal low or high water levels of the Shuswap Lake, severe weather conditions, lightning, earthquakes, fires, floods and storms, strikes, lockouts and industrial disturbances, any acts, rules, regulations, order or directives of any government or agency thereof, civil disturbances, explosions, transportation embargoes, or failure or delays in transportation, breakdown or mechanical or operational failure of any technical facilities, excessive electrical power fluctuations, excessive water pressure fluctuations, the order of any Court, or any other causes either herein enumerated or otherwise not reasonably within the control of such party; provided that financial incapacity, insolvency and general economic conditions shall not in any event constitute or be deemed to constitute an event of Force Majeure. Flood Proofing Covenant means a covenant under section 219 of the Land Title Act and registered on title of the Lands in a form acceptable to the District. Lease means Lease Number having a thirty (30) year term and covering District Lot 6501, Kamloops Division Yale District and containing approximately hectares, granting the Developer occupation of that portion of Crown foreshore being part of the bed of Shuswap Lake as issued by the Ministry of Forests, Lands and Natural Resource Operations in the form attached as Schedule F. Marina means the Two Hundred and Seventy-Six (276) slip Marina and Boat Launch located within the approximate hectare Lease substantially in the form attached hereto as Schedule F. "Phase 1" means that Phase of the Development numbered as P1 on the Phasing Plan. "Phase 2" means that Phase of the Development numbered as P2 on the Phasing Plan. "Phase 3" means that Phase of the Development numbered as P3 on the Phasing Plan. "Phase 4" means that Phase of the Development numbered as P4 on the Phasing Plan. "Phase 5" means that Phase of the Development numbered as P5 on the Phasing Plan. Page 2 of 44

3 "Qualified Professional" means: (a) (b) in respect of the preparation of any plan for work or improvements within the Riparian Areas or in the case of an Environmental Impact Assessment, a Registered Professional Biologist or Agrologist in good standing; in the case of water, sanitary, storm sewer services or other buried utilities to the Development, temporary parking area improvements under this Agreement, a member of the Association of Professional Engineers and Geoscientists in good standing with experience in the design and construction of infrastructure services. "Specified Official Community Plan Bylaw Provisions" means all those provisions of the District s Official Community Plan Bylaw No. 750, 2009 that are applicable to the Lands and that are adopted pursuant to section 876 of the Local Government Act and are applicable at the date of this Agreement. "Specified Zoning Bylaw Provisions" means all those provisions of the District s Zoning Bylaw No. 101, 1993 that are applicable to the Lands and that are adopted pursuant to section 903 of the Local Government Act and are applicable at the date of this Agreement. "Specified Subdivision Bylaw Provisions" means all those provisions of the District s Subdivision and Development Servicing Bylaw No. 500, 2003 that are applicable to the Lands and that are adopted pursuant to section 903 of the Local Government Act and are applicable at the date of this Agreement. Subdivision means the registration of a subdivision plan, including under the Land Title Act or Strata Property Act, that creates one or more additional parcels, and also includes a change of parcel boundaries that is the result from an application voluntarily made by the Developer, and for greater certainty does not include a change of parcel boundaries that results from an expropriation (including by way of a section 3 agreement under the Expropriation Act) or other statutory or regulatory requirement or an order of a Court. 1.2 The headings and captions are for convenience only and do not form a part of this Agreement and will not be used to interpret, define or limit the scope, extent or intent of this Agreement or any of its provisions. 1.3 The word "including" when following any general term or statement is not to be construed as limiting the general term or statement to the specific items or matters set forth or to similar terms or matters but rather as permitting it to refer to other items or matters that could reasonably fall within its scope. 1.4 A reference to currency means Canadian currency. 1.5 A reference to a statute includes every regulation made pursuant thereto, all amendments to the statute or to any such regulation in force from time to time, and any statute or regulation that supplements or supersedes such statute or any such regulation. 1.6 This Agreement shall be governed by and construed in accordance with and governed by the laws applicable in the Province of British Columbia. 1.7 A reference to time or date is to the local time or date in Sicamous, British Columbia. Page 3 of 44

4 1.8 A word importing the masculine gender includes the feminine or neuter, and a word importing the singular includes the plural and vice versa. 1.9 A reference to approval, authorization, consent, designation, waiver or notice means written approval, authorization, consent, designation, waiver or notice A reference to a section means a section of this Agreement, unless a specific reference is provided to a statute. 2.0 SCHEDULES 2.1 The following Schedules are attached to and form part of this Agreement: Schedule "A" - Development Permit DP Schedule "B" - Copies of designated zones CDZ.06 RCR Resort Commercial Residential and CDZ.07 RM Resort Marina Zone of Zoning Bylaw No. 101, 1993 Schedule C - Phased Development Agreement Bylaw No. 905, 2015 Schedule D - Development Site Plan Schedule E - Development Phasing Plan Schedule F - MFLNRO Lease Number Schedule G - Section 219 Covenant Copy of LB Schedule H - District Riparian Resolution Schedule I - CEAA Environmental Assessment Report and Marina Management Plan Schedule J - Subdivision Plans of Rem. Lot 1, Plan KAP82686 Schedule K - District Resolution No Moorage Slips Schedule L - Old Town Creek Risk Map 3.0 CONDITIONS PRECEDENT 3.1 Except for the Developer's and the District's obligations under section 8.0 provision of statutory right-of-way, and except for the Developer's obligation under section 16.0 provision and construction of the Waterfront Public Walkway, the obligations of the parties under this Agreement are subject to the Council of the District of Sicamous, in its sole and unfettered discretion, approving a partial discharge and amendments to the Section 219 Covenant, registered on the title of the Lands as document number LB438510, a copy of which is attached hereto as Schedule G, as required to facilitate the construction of the Marina and supporting upland services described herein. 4.0 APPLICATION OF AGREEMENT 4.1 This Agreement applies to the Lands and to no other land. 5.0 SPECIFIED ZONING BYLAW PROVISIONS and SPECIFIED SUBDIVISION BYLAW PROVISIONS 5.1 For the term of this Agreement, any amendment or repeal of the Specified Zoning Bylaw provisions and or the Specified Subdivision Bylaw provisions shall not apply to the Land, subject to: (a) (b) the express limits set out at section of the Local Government Act; the termination of this Agreement under section X6.0X; and Page 4 of 44

5 (c) amendments to which the Developer agrees in writing shall apply. 6.0 TERM OF AGREEMENT 6.1 The term of this Agreement is ten (10) years from the date it is fully executed by the parties. 6.2 Subject to the approval of the Inspector of Municipalities being obtained pursuant to section 905.2(2) of the Local Government Act, prior to third reading of the Bylaw of the District authorizing this Agreement, this Agreement may be extended by mutual consent of the District and the Developer for up to two (2) additional renewal terms of five (5) years each provided that: (a) the Developer is not in default of any of its obligations under this Agreement at the time of such extension; (b) (c) the District and the Developer agree in writing to an extension of this Agreement prior to the end of the Term, or renewal term as the case may be; and in no event shall the Term of this Agreement including all renewal terms be for a period of more than twenty (20) years. 6.3 In the event the approval of the Inspector of Municipalities is not obtained within the time contemplated under section 6.2, then this Agreement shall be for a period of ten (10) years only with no provision for renewal or extension. For clarity, the Developer has not requested an extended term. 7.0 TERMINATION 7.1 The parties may terminate this Agreement at any time by written agreement. 7.2 If the Developer does not comply with any of the provisions of sections 8.0 through 16.0 of this Agreement, the District may at its option terminate this Agreement before the expiry of the Term by providing notice in writing (the "Default Notice") to the Developer, provided that: (a) (b) in the case of a failure on the Developer's part to pay a sum of money or to provide security for an obligation, the District has, at least thirty (30) days prior to giving such notice, advised the Developer in writing of the alleged failure to pay or to provide the security and the Developer has not corrected the failure to the reasonable satisfaction of the District within that thirty (30) day period; in the case of any other failure on the Developer's part to comply with the provisions of sections 8.0 through 16.0 of this Agreement, the District has, at least sixty (60) days prior to giving such notice, provided the Developer with a Default Notice in respect of such failure, and the Developer has not corrected the failure or deficiency in performance to the reasonable satisfaction of the District, within that sixty (60) day period; or if a failure or deficiency (but for certainty, not including a failure to pay a sum of money or provide security as referred to in section 7.2(a) requires longer than sixty (60) days to remedy, the Developer has failed to substantially commence remedying such failure or deficiency within sixty (60) days after receipt of the Default Notice to the reasonable satisfaction of the District and further has failed to diligently pursue remedying the failure or deficiency thereafter. Page 5 of 44

6 8.0 PROVISION OF STATUTORY RIGHT OF WAY 8.1 The Developer covenants that within ninety (90) days of the final adoption of the Phased Development Agreement Bylaw No. 905, 2015, the Developer shall register on title in favor of the District a Statutory Right of Way having a minimum width of 3.5 metres contiguous to the Shuswap Lake and running the full length of the Lands upland of the Present Natural Boundary or at the minimum, elevation contour masl, for the purpose of provision and construction of a Waterfront Public Walkway under section 8.0 of this Agreement. 8.2 The Developer shall at its sole cost prepare all plans, forms and other documents necessary to give effect to the registration at Land Titles required to be made under section 8.1 and shall forward all such plans, transfer forms and other documents, duly executed by the Developer and (where necessary) by registered charge holders to the District s Approving Officer. 8.3 Prior to the provision and construction of the waterfront public walkway under section 8.0 and section 16.0, the Developer shall maintain for safe and reasonably access by the District and in consideration of the sum of $10.00, hereby grants to the District access in respect of the public access walkway for the purpose of inspection, installation, servicing and maintenance as set forth in the terms and conditions of the statutory right-of-way. 8.4 Subject to reasonable access, the District shall, at no cost to the Developer, grant to the Developer and its agents, designates and employees access to enter the dedicated statutory right-of-way under sections 8.0and 16.0 as and when the Developer requires for the purpose of constructing or upgrading infrastructure improvements as required in relation to work on the Lands permitted under this agreement, an issued building permit or other servicing agreement with the District in connection with the Marina or future development under Phase PROVISION OF PARKLAND The District confirms that the Developer s park dedication obligations under section 941 of the Local Government Act and any other land required for subdivision provisions in the Bare Land Strata Regulation and Land Title Act, such as access to bodies of water and land along bodies of water, as it may apply to the subdivision of the Lands into the Development Phases shall be fully satisfied and addressed by the provisions and dedications of park lands at the time of further subdivision of the Remainder of District Lot 528, KDYD as per the District s Comprehensive Development Permit CDP, dated January 23, DEVELOPMENT AND DEVELOPMENT PHASING 10.1 The Developer covenants that it shall not develop the Lands, disturb the surface of the Lands, cut or damage vegetation on the Lands or subdivide the Lands except in accordance with the terms of this Agreement The Developer covenants to develop and construct the Development in the Phases shown in the Development Phasing Plan attached to this Agreement as Schedule "D", such that Development Phases P1, P2, P3 and P4 are substantially completed on or before the expiry of the Term. For certainty, the Developer is not obliged to develop and construct the Phases in the numerical sequence shown on the Phasing Plan Without limiting the generality of section 10.2 in connection with the marina development, in particular Phase P1 and Phase P2, as shown on the Development Phasing Plan attached as Schedule D to this Agreement, the Lands shall be developed in accordance with the provisions of the District s Development Permit DP dated October 28, 2014 attached as Schedule B to this Agreement. Page 6 of 44

7 10.4 For the purpose of this Agreement, "substantially completed" or "substantial completion" means that all requisite occupancy permits for all construction that is to occur within a Development Phase have been issued by the authority having jurisdiction, and that with respect to that Development Phase, the Developer has completed and fulfilled all of the Developer's obligations under this Agreement with respect to subdivision, servicing of that Development Phase, the transfer or dedication of lands to the District, the provision of amenities, enhancement of the surface of the Lands and landscaping of the Lands, all to the satisfaction of the District Except as expressly provided in this Agreement, nothing in this Agreement shall relieve the Developer from any obligation or requirement arising under any applicable statute, bylaw or regulation in respect of the subdivision and development of the Lands, and without limiting the generality of the forgoing, the Developer shall remain fully responsible to ensure that the development of the Lands is in full compliance with all requirements of the bylaws of the District respecting land development, zoning, subdivision and building construction Without limiting the generality of section 10.5X, in connection with any application for approval of subdivision or development of the Lands, for certainty Phase P3 as shown on the Development Phasing Plan attached as Schedule D to this Agreement, the Developer must obtain all development permits required under the Official Community Plan Bylaw No. 750, 2009, as amended from time to time, and in respect of any subdivision must obtain the approval of the Approving Officer, and must comply with all applicable enactments and bylaws in connection with that subdivision For certainty, Phase P5 as shown on the Development Phasing Plan attached as Schedule B to this Agreement is for reference purposes relative to the provision of temporary parking within the Phase P5 land area under section 14.0 of this Agreement. For certainty, the future development of Phase P5 is not part of this Agreement. The future development of Phase P5 lands shall be the subject of a separate development application. For further certainty, should the Developer wish to commence Phase 5 within the Term of this Agreement, the Developer must apply for a separate development permit Without limiting the generality of section 10.5, in connection with any application for subdivision relative to Phase P5, the Developer must obtain the approval of the Approving Officer, and comply with all applicable enactments and bylaws in connection with that subdivision. For certainty, should the Developer wish to subdivide the proposed future Phase P5 land within the Term of this Agreement, the temporary parking use provisions of section 15.0 of this Agreement shall be transferred to the subdivided land as a condition of subdivision The parties acknowledge that the Approving Officer is an independent statutory officer, and that nothing in this Agreement shall be interpreted as prejudicing or affecting the duties and powers of the Approving Officer in respect of any application to subdivide the Lands RIPARIAN RIGHTS 11.1 To facilitate the Province approving and issuing a water tenure offer and subsequently the thirty year (30) Lease for the development of a boat launch and Marina access at Old Town Bay, the District Council considered, approved and authorized the Province, under resolution attached hereto as Schedule H to allow the partial use of the District s Riparian Rights fronting the cul-de-sac of the dedicated road fronting the Remainder of Lot 1, Plan KAP82686, KDYD. The Developer s obligation under subsection 11.1 is subject to: (a) in granting the Developer the right of use of the District s Riparian Area fronting on that part of the dedicated unnamed road, for certainty, the right of use of the Riparian Area shall run with the thirty (30) year Lease, as renewed from time to time, Page 7 of 44

8 to allow the construction, maintenance and operation of the Marina, access and other related improvements as provided for in this Agreement; (b) (c) in granting the Developer the right of use of the District s Riparian Area, the Developer expressly gives permission to the District and with consent of the Golder Associates, to refer to, use and apply those studies, sections, guidelines and management plans as may be applicable to the Public Boat Launch at no cost to the District. Should any monitoring or additional consultation be required of Golder Associates as it relates to the construction and completion of the Public Boat Launch, such cost shall be at the expense of the District. the Developer using all reasonable efforts to secure the approval of all authorities having jurisdiction over all aspects of the matters set out in subsection 11.1(a), including but not limited to approvals and permits, if required by law for: (i) (ii) (iii) (iv) the preparation, construction and future maintenance, repairs, replacement and operations of the Marina; in connection with the Environmental Management Plan and Marina Operation Management Practices Environmental Management Plan as outlined in the Environmental Assessment of the Proposed Twin Anchors Marina and Boat Launch at Old Town Bay, Sicamous, BC dated March 12, 2012 as prepared by Golder Associates (Report No ) attached hereto as Schedule I ; in connection with the Environmental Management Plan and Marina Operation Best Management Practices Environmental Management Plan as outlined in the Environmental Assessment of the Proposed Twin Anchors Marina and Boat Launch at Old Town Bay, Sicamous, BC dated March 12, 2012 as prepared by Golder Associates (Report No ) attached hereto as Schedule I relative to the habitat and shoreline planting, the installation and geotechnical stability of fill and for site remediation; The Developer shall at all times, provide for and maintain pedestrian access and connections to the Crown Land below the present and natural boundary as shown on Schedule J attached hereto and the dedicated road cul-de-sac and the Waterfront Public Walkway as described herein PUBLIC BOAT LAUNCH & PUBLIC ACCESS 12.1 For clarity, concurrently with Phase P1 of the Marina, the Developer and the District shall partner to facilitate the establishment of a Public Boat Launch and short term tie-up and loading moorage adjacent to and west of the proposed Marina access within the District Riparian Area as follows: 12.2 Concurrently with Phase P1 of the Marina, the Developer shall at no expense to the District: (a) Provide Public access for short term tie-up, loading and unloading of launched vessels by way of the Marina access, having a deck width of 10.0 feet and length of approximately 300 feet. For clarity, the actual length of the public access shall be determined at the completion of the access construction based on the moorage access at low water. (b) Further, the Developer Covenants that within ninety (90) days of the final adoption of the Phased Development Bylaw No. 905, 2015, the Developer will register on title of the Lands a Section 219 Restrictive Covenant in favor of the District preserving the Page 8 of 44

9 above described Public access and use within section (c) Further for certainty, the Developer will assume all operational, maintenance and replacement cost responsibility for that portion of the Marina access used by the public, including, but not limited to maintaining public access during normal business hours, including weekends. (d) Provide on and off-site vehicle and trailer parking, including valet services as needed. In recognition that such services are not available at other District public boat launches and that the District does not have the parking facilities nor manpower to undertake such services, the District recognizes that the Developer may establish fees and charges for the use of parking and valet services by general public, provided such public fees and charges remain compatible with fees and charges for comparative services provided elsewhere on the Shuswap and Mara Lakes system or the Okanagan Lake. (e) Provide parking on a fee for service basis for the public users of the Public Boat Launch within the Seasonal Temporary Use Parking and or the long term off-site parking to be located at 575 Old Town Road, as described in section (f) The right of use of the Public area described in section 12.2 (a) above shall run with the thirty (30) year Water Lease, as renewed from time to time. (g) As a condition of this Agreement, within thirty (30) days of the final adoption of the Phased Development Agreement Bylaw No. 905, 2015, the Developer shall enter into an interim sub-lease with the District relative to the use of the Developer s Lease giving permission to the District to occupy and construct the Public Boat Launch within the Developer s Leased area. Further, the Developer herewith covenants to permit the District to survey and establish a Lease area to accommodate the Public Boat Launch and related moorage tie-up at the public access as described in section 12.2 (a). For clarity, the intent of which is to obtain separate approval and Lease of the water area for the Public Boat Launch with the Ministry of Forests, Lands and Natural Resource Operations Concurrently with Phase P1, the District shall at no expense to the Developer: (a) Facilitate the design, approvals and construction of a precast concrete Boat Launch to accommodate the launching of private and commercial vessels by the Public and the Developer s cliental, including the Developer s houseboats. (b) Concurrently with the Boat Launch, construct an approach apron extending from the existing access road cul-de-sac to the top of the boat launch having a width to accommodate both Marina and public launching into the Shuswap Lake. (c) To facilitate the turning and launching of large vessels, the District shall maximize the turning radius of the existing cul-de-sac by incorporating a wider paved apron behind the existing cul-de-sac curb and within the boundary of the road right of way to the west and south circumference of the cul-de-sac extending across the frontage of the launch ramp apron to the east circumference of the existing cul-de-sac. The turning apron shall not encroach into the riparian setback to Old Town Creek unless supported by a Riparian Area Report prepared by a Registered Qualified Professional. (d) Further for certainty, the District will assume all operational, maintenance and replacement cost responsibility for the Boat Launch including, but not limited to maintaining public access during normal business hours, including weekends. Page 9 of 44

10 (e) For certainty, except where provided under section 13.1, nothing in this Agreement shall fetter the District from establishing on-site management of the Boat launch and or establishing fees and charges for the public or commercial use of the Boat Launch. (f) The District, within one (1) year of the final adoption of the Phased Development Agreement Bylaw No. 905, 2015, will undertake to survey and establish a Lease area to accommodate the Public Boat Launch and related moorage tie-up at the public access as described in section 12.2 (a). For clarity, the intent of which is to obtain a separate and independent Lease of the water area for the Public Boat Launch with the Ministry of Forests, Lands and Natural Resource Operations For certainty, notwithstanding the Term of this Agreement, the obligations and provisions of section 12.0 of this Agreement shall run for the thirty (30) year term of the Lease. Such obligations and provisions may, by mutual agreement of the Developer and District, be amended or released prior to any subsequent extension or renewal of the Lease DEVELOPER S USE PUBLIC BOAT LAUNCH 13.1 For certainty, notwithstanding the Term of this Agreement and so long as the Developer remains in compliance with the terms, conditions and obligations of this Agreement, the Developer may have use of the Public Boat Launch facility at no cost for the thirty (30) year term of the Lease CONDITIONAL PROVISION OF MOORAGE SLIPS 14.1 As a condition of this Agreement relative to the issuance of the Thirty (30) year Lease No by the Ministry of Forests, Lands, and Natural Resource Operations, and in accordance with the District Council s resolution #14-130, a copy of which is attached hereto as Schedule L, the Developer shall provide moorage slips for the future residents residing within the proposed upland residential developments located within the Old Town Bay Comprehensive Development Zone legally described as Remainder District Lot 528, KDYD, except Plans KAP77037 & KAP82686 and Part of Lot 1, Plan KAP77037 as per the following: (a) (b) (b) As a condition of this Agreement, the Marina shall provide, construct and maintain no less than one hundred (100) moorage slips within the proposed breakwater protected area for the leasing or rental of moorage by residents residing within the upland developments; Notwithstanding section 14.1(a), the provision of the one hundred moorage slips may be phased in to accommodate the scheduling and development progress of the upland residential development; Given the potential variety of vessels and unknown specifications and facility requirements, the Marina may, at its discretion, group or disperse the one hundred moorage slips within the Marina to satisfy the moorage demand; i. Notwithstanding section 14.1(a), the Marina may, at its discretion, lease or rent to the general public any moorage slip, the use of which is intended to comply with section 14.1(a) until such time that the Marina is unable to meet the requirements of section 14.1(a); ii. The lease or rental fees or charges applicable to the moorage provided under section 14.1(a) shall generally be comparable to those charged to the general public and based on fees and charges for comparative quality moorage and services provided elsewhere on the Shuswap and Mara Lake system and Okanagan Lake. Page 10 of 44

11 14.2 The conditional requirements of section 14.1 shall expire and cease to have any force or effect One (1) Year from the date that a Water Tenure is offered by the Ministry of Forests, Lands and Natural Resource Operations for the establishment of a minimum One hundred (100) slip marina on Shuswap Lake fronting on lands currently owned by BC Ltd. and legally described as Remainder District Lot 528, KDYD except Plans KAP77037 & KAP82686 and Part of Lot 1, Plan KAP Notwithstanding section 14.1, subsequent to the expiration under section 14.2, the Developer may, at its sole discretion, continue to lease or rent moorage slips to any resident of the upland development referenced under section PROVISION FOR SEASONAL TEMPORARY & LONG TERM PARKING 15.1 In conjunction with the approval procedures adopting the District of Sicamous Phased Development Agreement Bylaw No. 905, to authorize the execution of this Agreement and under the provisions of the District s Temporary Commercial and Industrial Use Permit Procedures Bylaw No. 843, 2012 the Developer is herewith granted a Seasonal Temporary Use Permit for the temporary parking use of that part of the Lands under Phase P4 as shown on the Development Phasing Plan attached as Schedule E and the Development Site Plan attached as Schedule D For certainty, the seasonal temporary parking use is for an annual period of 180 days. The temporary parking use will be located within the Land area shown as Phase P5 of Schedule E as attached to this Agreement Notwithstanding the Term of this Agreement, the maximum term of the Temporary Use Permit is two (2) years from the date of issuance plus, subject to an application for approval to the District, a one (1) time renewal for an additional two (2) years at the discretion of the District Council or the date of issuance of a development permit for the future development of Phase 5 as shown on Schedule E, whichever is the earliest For certainty, the requirement of Schedule B Parking and Loading Requirements of Zoning Bylaw No 101, 1993, section B104 Parking Surface, clause (a) is herewith waived for the term of the Temporary Use Permit, provided the surface is covered with clean crushed rock and treated to control dust For certainty, the off-site long term parking provisions and requirements for the Marina under Schedule B Parking and Loading requirements of Zoning Bylaw No. 101, 1993 shall be addressed to the District s satisfaction prior to the expiry of the Temporary Use Permit or the issuance of a development permit for the future development of Phase 5 as shown on Schedule E, whichever is the earliest For certainty, notwithstanding section 15.5, to secure the off-site long term parking, the Developer shall to the District s satisfaction, designate a minimum of 1.22 Ha (3.0 acres) of land accessible from Old Town Road and suitable for the short and long term parking of vehicles and boat trailers for a total of 276 parking spaces located at 675 Old Town Road, Sicamous, BC Further to section 15.6, the Developer Covenants that within ninety (90) days of the final adoption of the Phased Development Bylaw No. 905, 2015, the Developer will register on title of the property at 975 Old Town Road in favor of the District, a Section 219 Restrictive Covenant reserving the above noted 1.22 Ha (3.0 acres) for the use of parking for the Marina development and preventing any subdivision or development of the required land area. A reference plan and covenant text shall be provided to the District for approval and registration within sixty days (60) days. Page 11 of 44

12 16.0 PROVISION OF WATERFRONT PUBLIC WALKWAY 16.1 The Developer covenants and agrees to design and construct to District approval, a hard and soft landscape and hard surfaced walkway, including lighting acceptable to the District. The waterfront public walkway shall be constructed concurrently with the development of Phase P3 as shown on attached Schedule E of this Agreement and within the full length of statutory right-of-way described in section 8.0 of this Agreement As part of and concurrently with the development permit application for the development of Phase P3 as shown on attached Schedule B of this Agreement, the Developer must design, engineer and obtain District approval for the waterfront public walkway as a condition of the Phase 3 development permit As a condition of and prior to issuance of the Phase P3 development permit, the Developer must provide an irrevocable letter of credit in the amount of 125% of the estimated cost to construct and complete the waterfront public walkway as certified by a Qualified Professional ENVIRONMENTAL IMPACT ASSESSMENT 17.1 While the Phase 1 and Phase 2 of the Marina itself is located within the low risk area as delineated by EBA Engineering Consultant s Ltd. s Old Town Creek Risk Map dated January, 2006 and attached to this Agreement as Schedule L, part of the proposed Marina, Marina access and the Phase 4 temporary parking area are situated within the delineated moderate risk area. Accordingly, concurrent with the provisions and requirements of section 12.0 and section 15.0, the Developer shall provide a written report to the District confirming that the location and siting of the proposed Marina, Marina access and the Phase 4 temporary parking are reasonable and safe for the intended uses in regard to the delineated risk rating Further, the Developer acknowledges that the Lands and/or a portion of the Lands have been designated as a development permit areas under the authority of section 919.1(1)(a), (b), (e) and (f) of the Local Government Act. Accordingly, the Developer acknowledges its obligation to apply for and obtain one or more development permits in accordance with the guidelines established under the Official Community Plan, prior to doing any of the following: (a) further subdividing of the Lands; (b) commencement of any future development relating to that proposed within Phase 3 and Phase 5 on the Lands; 17.2 In addition to the requirements that may be imposed by the District as a condition of the issuance of an environmentally sensitive development permit, watercourse development permit or form and character development permit for each Phase of the Development, the Developer further covenants and agrees that in conjunction with any development permit or subdivision application made for the Lands, or any Development Phase, where deemed applicable by the District, the Developer shall at its sole cost provide the District with a detailed Environmental Impact Assessment Report ("Detailed EIA") prepared by a Qualified Professional, analyzing and commenting on the activities proposed under the development permit application. The Detailed EIA must confirm, to the District's sole satisfaction that the proposal for the development of the Land contemplated under the development permit application substantially satisfies the general requirements for environmental protection of the Lands set out in the EIA. Further, where applicable, the Developer must provide to the District's satisfaction security for the Developer's Page 12 of 44

13 obligation to develop the land in compliance with the approved Detailed EIA, such security to be provided prior to the issuance of any required development permit or any subdivision approval Without limiting the jurisdiction of the District to impose conditions on any proposed development of the Lands or any Development Phase, pursuant to section 920(7) of the Local Government Act, the District may require the Developer to take any measures or steps that are reasonably required, in the development of the Lands, in order to fulfill the conditions and recommendations of the EIA or Detailed EIA, and the Developer agrees to comply with any and all such conditions SERVICING FOR THE DEVELOPMENT 18.1 Water Service (a) (b) (c) The Lands are serviced with a 200 mm water service stub to serve the Marina Phases P1 & P2 and an additional 100 mm water service stub to the proposed Phase P3 of the upland development site. The proposed Phase P5 is serviced by two 100 mm water service stubs. The Developer acknowledges that the Old Town Bay development area is not fully serviced or fully operational as of the date of this Agreement. As such, the water volumes and pressures may be limited until the water reservoir for the upland development is constructed and is operational. Prior to the issuance of a development permit for the proposed Phase P3 or future Phase P5, the Developer shall provide to the District acceptable written confirmation from a Registered Professional confirming that the water volumes and pressure are adequate to serve the intended uses within Phase P1, P2 and the future proposed P3 and P Fire Protection Services (a) (b) (c) The Lands are serviced with a 100 mm water stub to the proposed Phase P5 and a 150 mm water stub to the Phase P3 which will also serve the Marina Phases P1 and P2. Prior to the issuance of a development permit for the proposed Phase P3 or future Phase P5, the Developer shall provide to the District acceptable written confirmation from a Registered Professional confirming that the water volumes and pressure are adequate to serve the intended uses within Phase P1, P2 and the future proposed P3 and P5. The Developer acknowledges that at the time of this Agreement, the water services or water pressure may not be adequate to provide District water to the furthest slip located within the Marina. Therefore the Developer, at no cost to the District, proposes to provide and install a private 50mm water service and standpipe system within the Marina and having a check valve and fire connection location at the entrance to the Marina access. The Developer shall obtain all applicable and necessary approvals and permits required to use and pump lake water for such purposes Sanitary Sewer Collection (a) The Lands are serviced with a 250 mm sanitary service running through the upland Page 13 of 44

14 adjacent to the Lake which will service the Marina and future Phase P3. The proposed future Phase P5 is serviced by a 200 mm sanitary service running in the loop road. (b) (c) The Developer acknowledges that at the time of this Agreement, the sanitary services are not complete and operational. A section of sanitary service and the sanitary lift station remains to be constructed and installed by a third party. Should the sanitary service and sanitary lift station not be completed and operational in time to accommodate the servicing of the Marina development under this Agreement, the parties agree that the sanitary sewer collection and treatment services for the Development shall be provided in accordance with the following provisions. (i) (ii) Subject to the Developer entering into an interim waste water agreement with the District, the District will accept trucked waste disposal from the Marina operations described in this Agreement until such time that the sanitary sewer collection system is completed and operational. Notwithstanding section 18.3(c)(i), such trucked waste shall not be permitted to be hauled directly to the District waste water treatment plant but shall be hauled to a District approved dump location within the District s sanitary system INDEMNITY AND RELEASE 19.1 The Developer shall indemnify and keep indemnified the District from any and all claims, causes of action, suits, demands, fines, penalties, costs, deprivation, expenses or legal fees whatsoever, whether based in law or equity, whether known or unknown, which anyone has or may have against the District or which the District incurs as a result of any loss, damage or injury, including economic loss or deprivation, arising out of or connected with this Agreement, including the restrictions and requirements of this Agreement, or any breach by the Developer of any covenant in this Agreement The Developer hereby releases, saves harmless and forever discharges the District of and from any claims, causes of action, suits, demands, fines, penalties, costs, deprivation, expenses or legal fees whatsoever which the Developer can or may have against the District, whether based in law or equity, whether known or unknown, for any loss, damage or injury, including economic loss or deprivation, that the Developer may sustain or suffer arising out of or connected with this Agreement, including the restrictions and requirements of this Agreement, the provisions of the amenities and the development of the Lands as contemplated under this Agreement, or any breach by the Developer of any covenant in this Agreement The indemnity and release provisions of sections X19.1X and X19.2X shall survive the expiry or termination of this Agreement NO RECOVERY OF AMENITIES 20.1 The Developer covenants and agrees that expiry of the Agreement and any termination in accordance with section X7.0X or otherwise, does not entitle the Developer to recover any portion of the Amenities provided prior to termination, or to seek restitution in relation thereto or in relation to any other obligation of the Developer as performed prior to such termination (and the Developer specifically agrees that the Specified Zoning Bylaw Provisions of this Agreement for the period prior to expiry or termination provides sufficient consideration for the Amenities) and the release and indemnity provisions under sections X19.1X to X19.2X apply in this regard The Developer covenants and agrees it will not commence or advance a legal proceeding of any kind to seek to quash, set aside, hold invalid this Agreement, or to recover any portion of the Page 14 of 44

15 Amenities provided under this Agreement, or seek restitution in relation to any of the Amenities provided under this Agreement, and if the Developer does any of the foregoing, the District may provide this Agreement to the Court as a full and complete answer ASSIGNMENT OF AGREEMENT 21.1 Except as provided in section X19.2X, the Developer may only assign this Agreement if the District consents in writing to the assignment. To the extent that it may lawfully do so under the provisions of the Local Government Act, the District agrees that its consent to an assignment will not be withheld unreasonably The District's consent will not be required for any assignment of this Agreement to an affiliate (as defined in the Business Corporations Act (British Columbia)) of the Developer AMENDMENT OF AGREEMENT 22.1 The parties may in writing agree to minor amendments to this Agreement, and for that purpose a "minor amendment" is a change or amendment to any of Schedules "A" through "L" of this Agreement DISPUTE RESOLUTION 23.1 If a dispute arises between the parties in connection with this Agreement, the parties agree to use the following procedure as a condition precedent to any party pursuing other available remedies: (a) (b) (c) either party may notify the other by written notice ("Notice of Dispute") of the existence of a dispute and a desire to resolve the dispute by mediation; a meeting will be held promptly between the parties, attended by individuals with decisionmaking authority regarding the dispute, to attempt in good faith to negotiate a resolution of the dispute; if, within forty-eight (48) hours after such meeting or such further period as is agreeable to the parties (the "Negotiation Period"), the parties have not succeeded in negotiating a resolution of the dispute, they agree to submit the dispute to mediation and to bear equally the costs of mediation; d) the parties will jointly appoint a mutually acceptable mediator (who must be an expert in the subject matter of the dispute), within forty-eight (48) hours of the conclusion of the Negotiation Period; (e) (f) the parties agree to participate in good faith in the mediation and negotiations related thereto for a period of thirty (30) days following appointment of the mediator or for such longer period as the parties may agree. If the parties are not successful in resolving the dispute through mediation or if the mediation has not commenced within fourteen (14) days following the appointment of the mediator or if the parties cannot agree upon the mediator appointment, then the parties agree that the dispute will be settled by a single arbitrator in accordance with the Commercial Arbitration Act, R.S.B.C. 1996, Chapter 55, as amended. The decision of the arbitrator will be final and binding and will not be subject to appeal on a question of fact, law, or mixed fact and law; and the costs of mediation or arbitration will be awarded by the mediator or arbitrator in his or her absolute discretion. Page 15 of 44

16 23.2 In no event shall the foregoing be construed as impeding or affecting the District's authority to enforce its zoning and other regulatory bylaws NOTICE 24.1 Any notice permitted or required by this Agreement to be given to either party must be given to that party at the address set out above, or to any other address of which the party has given the other party notice in writing expressly for the purposes of this Agreement POWERS PRESERVED 25.1 Except as expressly set out in this Agreement, nothing in this Agreement shall prejudice or affect the rights and powers of the District in the exercise of its powers, duties or functions under the Community Charter or the Local Government Act or any of its bylaws, all of which may be fully and effectively exercised in relation to the Lands as if this Agreement had not been executed and delivered to the Developer, subject only to section of the Local Government Act DISTRICT'S REPRESENTATIVE 26.1 Any opinion, decision, act or expression of satisfaction or acceptance of the District provided for in this Agreement may be taken or made by the Chief Administrative Officer or his or her designate, unless expressly provided to be taken or made by another official of the District PERMITS 27.1 The Developer acknowledges that the District may, despite any public law limitations on the withholding of building permits and occupancy permits, withhold building permits and occupancy permits for the purpose of ensuring compliance with and administering the terms of this Agreement CONFLICT 28.1 In the event of a conflict between the terms of this Agreement and the provisions of the District Official Community Plan or Zoning Bylaw applicable to the Lands, the Official Community Plan or Zoning Bylaw will prevail, except insofar as section 905.1(5) of the Local Government Act applies to a bylaw adopted after the date of execution of this Agreement by the District TIME 28.1 Time is to be the essence of this Agreement BINDING EFFECT 29.1 This Agreement will enure to the benefit of and be binding upon the parties hereto and their respective heirs, administrators, executors, successors, and permitted assignees WAIVER 30.1 The waiver by a party of any failure on the part of the other party to perform in accordance with any of the terms or conditions of this Agreement is not to be construed as a waiver of any future or continuing failure, whether similar or dissimilar. Page 16 of 44

17 31.0 LANGUAGE 31.1 Wherever the singular, masculine and neuter are used throughout this Agreement, the same is to be construed as meaning the plural or the feminine or the body corporate or politic as the context so requires CUMULATIVE REMEDIES 32.1 No remedy under this Agreement is to be deemed exclusive but will, where possible, be cumulative with all other remedies at law or in equity LAW APPLICABLE 33.1 This Agreement is to be construed in accordance with and governed by the laws applicable in the Province of British Columbia RELATIONSHIP OF PARTIES 34.1 No provision of this Agreement shall be construed to create a partnership or joint venture relationship, an employer-employee relationship, a landlord-tenant, or a principal-agent relationship AMENDMENT 35.1 This Agreement may not be modified or amended except by the written agreement of the parties INTEGRATION 36.1 This Agreement contains the entire agreement and understanding of the parties with respect to the matters contemplated by this Agreement and supersedes all prior and contemporaneous agreements between them with respect to such matters SURVIVAL 37.1 All representations and warranties set forth in this Agreement and all provisions of this Agreement, the full performance of which is not required prior to a termination of this Agreement, shall survive any such termination and be fully enforceable thereafter NOTICE OF VIOLATIONS 38.1 Each party shall promptly notify the other party of any matter which is likely to continue or give rise to a violation of its obligations under this Agreement ENTIRE AGREEMENT 39.1 The whole agreement between the parties is set forth in this document and no representations, warranties or conditions, express or implied, have been made other than those expressed SEVERABILITY 40.1 Each article of this Agreement shall be severable. If any provision of this Agreement is held to be illegal or invalid by a Court of competent jurisdiction, the provision may be severed and the illegality or invalidity shall not affect the validity of the remainder of this Agreement. Page 17 of 44

18 41.0 COUNTERPART 41.1 This Agreement may be executed in counterpart with the same effect as if both parties had signed the same document. Each counterpart shall be deemed to be an original. All counterparts shall be construed together and shall constitute one and the same Agreement. IN WITNESS WHEREOF the parties hereto have set their hands and seals as of the day and year first above written. DISTRICT of SICAMOUS by its authorized signatories Mayor ) ) ) Corporate Officer ) ) ) ) ) BC LTD ) by its authorized signatories ) ) ) Name: ) ) ) Name: ) ) Page 18 of 44

19 HSCHEDULE "A" Page 19 of 44

20 Page 20 of 44

21 Page 21 of 44

22 Page 22 of 44

23 HSCHEDULE "B" Page 23 of 44

24 Page 24 of 44

25 Page 25 of 44

26 Page 26 of 44

27 HSCHEDULE "C" DISTRICT OF SICAMOUS PHASED DEVELOPMENT AGREEMENT BYLAW NO. 905, 2015 A bylaw to enter into a phased development agreement with BC Ltd. WHEREAS under Section of the Local Government Act a municipality may enter into a phased development agreement with the owner of land to provide the municipality with amenities, works and services and other things; provide assurances related to future changes to land use regulations; and allow development to proceed in phases over an extended period of time; AND WHEREAS Council has considered the bylaw in conjunction with the Official Community Plan; NOW THEREFORE, the Council of the District of Sicamous, in open meeting assembled, enacts as follows: 1. This Bylaw may be cited for all purposes as, "District of Sicamous Phased Development Agreement Bylaw No. 905, 2015". 2. Appendix "A" is a copy of the phased development agreement. 3. If any section, subsection, sentence, clause or phrase of this Bylaw is for any reason held to be invalid by a court of competent jurisdiction, the invalid portion shall be severed and the holding of invalidity shall not affect the validity of the remainder of the Bylaw. 4. The District enters into, and the Mayor and Corporate Officer, are authorized to execute that certain form of phased development agreement attached to and forming part of this bylaw as Appendix "A". READ A FIRST AND SECOND TIME this 9 th. day of December PURSUANT TO THE LOCAL GOVERNMENT ACT, NOTICE WAS ADVERTISED ON and, 2015; and PUBLIC HEARING was held on the day of, 2016 PUBLIC HEARING was held on the_day of, 2016 READ A THIRD TIME this_day of, ADOPTED THIS_day of, Mayor Corporate Officer Page 27 of 44

28 HSCHEDULE "D"H DEVELOPMENT SITE PLAN Page 28 of 44

29 HSCHEDULE "E"H DEVELOPMENT PHASING PLAN Page 29 of 44

30 HSCHEDULE "F"H MFLNRO LEASE NUMBER Page 30 of 44

31 Page 31 of 44

32 SCHEDULE "G" SECTION 219 COVENANT COPY LB Page 32 of 44

33 Page 33 of 44

34 Page 34 of 44

35 Page 35 of 44

36 Page 36 of 44

37 Page 37 of 44

38 SCHEDULE "H" DISTRICT RIPARIAN RESOLUTION Page 38 of 44

39 SCHEDULE "I" CEAA ENVIRONMENTAL ASSESSMENT REPORT AND MARINA MANAGEMENT PLAN Page 39 of 44

40 Page 40 of 44

41 SCHEDULE "J" SUBDIVISION PLANS OF REM. LOT 1, PLAN KAP82686 Page 41 of 44

42 SCHEDULE "K" DISTRICT RESOLUTION NO MOORAGE SLIPS Page 42 of 44

43 Page 43 of 44

44 SCHEDULE "L" OLD TOWN CREEK RISK MAP Page 44 of 44