HomeMy WebLinkAbout94-77
AMENDED BY
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THE CORPORATION OF THE HUNICIPALITY OF CLARINGTON
BY-LAW 94-77
Being a By-Law to authorize the making of a
Servicing Agreement and Implementation of
Proposed Official Plan Amendment No. 56 and to
Repeal By-law 94-21
WHEREAS at its special meeting of May 24, 1994, Council passed
Resolution #C-330-94,
NOW THEREFORE BE IT RESOLVED THAT the Council of The Corporation
of the Municipality of Clarington enacts as follows:
1. THAT the Mayor and Clerk are hereby authorized to execute a
Servicing Agreement with Clarington Place Limited and
Willsonia Industries Ltd. which applies to the Willsonia
Lands and incorporates the principles set out in
paragraph 1.3 of the Addendum Report #PD-169-93 as amended
by Resolution #C-79-94, Resolution #C-80-94 and Resolution
#C-330-94.
2. THAT By-law 94-21 is repealed.
BY-LAW read a first and second time this 24th day of May, 1994.
BY-LAW read a third time and finally passed this 24th day of May,
1994.
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DYE & DURHAM CO. INC.-Form No. 985
Amended NOV. 1992
~. Province
of
Ontario
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Document General
Form 4 - Land Registration Reform Act
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AGREEMENT
(5) Consideration
Dollars $
(6) Description
Part of Lots 15 and 16, Concession 1, Geographic Township of
Darlington, Municipality of Clarington, Regional Municipality of
Durham, designated as Parts 2 to 19 inclusive on Plan 40R-16730.
New Property Identifiers
Additional:
See 0
Schedule
Executions
Additional:
See
Schedule
o
(7) This
Document
Contains:
(a) Redescription
New Easement
PlanlSketch
j (b) Schedule for:
D! Description 0
Additional
Parties 0 Other 0
(8) This Document provides as follows:
See attached Development Agreement among The Corporation of the Municipality of Clarington, Clarington
Place Limited and Will sonia Industries Limited. '
Cf4 -77
Continued on Schedule 0
I (9) ~~ Document relates to Instrument number(s)
(10) Party(les) (Set out Status or Interest)
Name(s)
1
. . . . . . ...0.. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. . .. . .. . .. .. .. .. .. . .. ..
Signature(s) Date of Signature
Y M 0
....., .-, .6'_ _ : 1996 ! :
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.. .. .. .. . .... . .. .... . .. .. .. .. .. .. .. . .. . . .. . ...0.. .. .. .. .. .. .. : .. .. . . .. : .. .... ....
Nicholas T. Macos !:
. . . . . " . . . . . . . . . . . . . . . . . . . . . . . . . . . ! . . . . . ! . .. ..
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mE CORPORATION OF THE MUNICIPALITY
. . . OF CLARlNGTON .(Municipality). . . . . . . . . . . . . .
. . ~y .i~ ~l.i~i~~ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(11) Address
for Service
40 Temnerance Street. Bowmanville. Ontario LIC 3A6
(12) Party(les) (Set out Status or Interest)
Name(s)
Signature(s)
Date of Signature
Y M 0
.
,
,
,
.. . .. .. . ..... . .. .. . .. . .. .. .. .. .. .. . . .. . .. .. .. .. .. .. . .. . . .. L .. .. .. .. ..
.. WILLS.ONIAINDUSTlUES.LlMl1'EP (MQr:tga.g~)................................. .l.....
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . t . . . . .
CLARlNGTON PLACE LIMITED (Owner)
(13) Address
for Service
Multiple
(15) Document Prepared by:
Nicholas T. Macos
130 Adelaide Street West
Suite 2600
Toronto, Ontario MSH 3P5
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ON: ClARtNG"TON.DEV
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DEVELOPMENT AGREEMENT MADE (in quintuplicate) this 30th. day of April,1996.
BETWEEN:
CLARINGTON PLACE LIMITED,
hereinafter called the tlOWNER" OF THE FIRST PART
- and -
WILLSONIA INDUSTRIES LIMITED,
hereinafter called the "MORTGAGEEtI OF THE SECOND PART
- and -
THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON,
hereinafter called the "MUNICIPALlTY" OF THE THIRD PART
WHEREAS the Council of the Municipality has enacted By-law 90-130 being a by-law
designating all lands located within the corporate limits of the Municipality of Clarington as
a Site Plan Control Area, a certified copy of which by-law has been registered in the Land
Registry Office for the Registry Division of Durham (No. 40) as Instrument No. 0405251;
AND WHEREAS the Owner proposes to erect two eating establishments with a maximum
floorspace of 929 m2 and a 3,085 m2 theatre containing a video arcade with a maximum
floorspace of 55 m2 on the said lands and has requested the Municipality to approve the
said development pursuant to the provisions of By-law 90-130;
AND WHEREAS the Municipality has resolved to approve the said development pursuant to
the said By-law 90-130, provided that the Owner enter into this Agreement with the
Municipality;
AND WHEREAS the lands affected by this Agreement, are described in Schedule 'W' hereto
and hereinafter referred to as the tlsaid lands";
AND WHEREAS the Owner has represented to the Municipality that the said lands are
registered in the name of Clarington Place Limited which is the beneficial Owner of the said
lands as stated in the affidavit attached to this Agreement as Schedule "B";
AND WHEREAS the Owner, the Mortgagee and the Municipality have entered into an
Agreement dated May 24, 1994 and a First Amending Agreement dated April 30, 1996,
copies of which are contained in Schedule "GtI hereto and are referred to collectively as the
tlServicing Agreement";
AND WHEREAS the Owner warrants that it has entered into an agreement with the Regional
Municipality of Durham for the provision of Regional services on or from Highway 2,
Clarington Boulevard and Uptown Avenue;
L.A.: 28.11.89
.'
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AND WHEREAS the Owner warrants that it has entered, or will enter into an Agreement with
the Ontario Hydro, for the provision of an electrical distribution system;
AND WHEREAS the Agreement is made pursuant to Subsection 41 (7) of the Planning Act,
A.S.O. 1990, c.P.13, as amended;
NOW THEREFORE, in consideration of the mutual agreements and covenants hereinafter
contained and the payment of the sum of TWO ($2.00) DOLLARS by each party to the other
parties (the receipt whereof is by each of the parties hereby acknowledged), the parties
hereto covenant and agree as follows:
1. SITE PLAN
Among other plans and drawings, Schedule "C" annexed hereto contains an approved
site plan showing the size, location, elevation and exterior architectural design of the
buildings and structures which the Owner proposes to erect on the "said lands". The site
plan and any amendments to it which may be made from time to time shall show marked
thereon the written approvals of the Municipality's Director of Planning and Development and
the Director of Public Works. The site plan and amendments thereto which are approved
by the aforesaid Directors are referred to collectively as the "approved site plan". For the
avoidance of doubt, the aforesaid approvals of the site plan and amendments thereto shall
be obtained by the Owner prior to the issuance of building permits.
2. COMPLIANCE WITH THE SITE PLAN
The Owner covenants that no buildings or structures, other than the building shown
on Schedule "CIt shall be erected on the "said lands" and further, that in the construction of
such building, the Owner will comply with the elevations, exterior architectural design, the
location of the buildings on the lot and all other matters relating to the building shown on
the approved site plan contained in Schedule "C", unless otherwise approved in writing by
the Municipality's Director of Planning and Development and the Director of Public Works.
Additional elevation drawings for the two eating establishments shall be approved by the
Director of Planning and Development. After the approval of the additional elevation
drawings by the Director, and prior to the issuance of a building permit for these buildings
or structures, the Owner and the Mortgagee hereby authorize the Director to annex the
additional elevation drawings as part of Schedule "CIt without the necessity of requiring an
Amending Agreement.
All signs to be located or erected on any portion of the said lands or on the exterior
part of any building or structure erected thereon shall be as shown on the approved site plan
contained in Schedule "c" before they are located or erected thereon.
L.A.: 28.11.89
. .
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3. PARKING AND lOADING
The Owner shall provide and maintain off-street parking and driveway accesses in
accordance with Schedule "C" and to do so in accordance with specifications to be
approved by the Municipality's Director of Public Works which shall include the surfacing of
parking areas with concrete or bituminous asphalt. No parking of vehicles shall be permitted
on access or driveway areas as shown on the approved site plan which areas shall be
signed and maintained as fire access routes to the satisfaction of the Municipality's Fire
Chief.
4. GARBAGE AND WASTE
The Owner shall provide and maintain enclosed garbage and waste storage facilities
as may be required by the Municipality for the storage of garbage and other waste materials
from the buildings on the said lands, in accordance with plans and specifications to be
approved by the Municipality's Director of Public Works and the Fire Chief.
The Owner further agrees to remove garbage and other waste materials as often as
may be required by the Municipality's Director of Public Works and the Fire Chief.
5. SNOW REMOVAL
The Owner shall remove all snow from access ramps, driveways, parking areas,
loading areas and walkways within twelve (12) hours of the cessation of any fall of snow.
6. GRADING AND DRAINAGE
Schedule "C" annexed hereto also contains grading and drainage plans which shall
show marked thereon the written approval by the Municipality's Director of Public Works
prior to the issuance of building permits (the "Grading and Drainage Plans"). The "Grading
and Drainage Plans" comprise plans and specifications of works for the grading of and the
disposal of storm, surface and waste water from the "said lands" (the "Grading Works") and
from any buildings or structures thereon and forms part of the approved site plan. The
Owner shall undertake the grading of and provide for the disposal of storm, surface and
waste water from the "said lands" and from any buildings or structures thereon at his cost
in accordance with the approved "Grading and Drainage Plans" contained in Schedule "C",
7. IllUMINATION
The Owner shall provide illumination of the "said lands" and building in accordance
with plans and specifications which are approved by the Municipality's Director of Public
Works, and to refrain from erecting or using any form of illumination which, in the opinion
of the Municipality's Director of Public Works, would cause any traffic hazard or would cause
a disturbance to residential uses adjacent to the "said lands".
.'
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8. FENCING AND LANDSCAPING
The Owner agrees to erect and maintain fences and plant and maintain trees, shrubs
or other suitable ground cover in accordance with the approved site plan and the approved
landscaping plan also contained in Schedule "C" of this Agreement (the "Landscaping Plan")
on the "said lands". The Landscaping Plan and any amendments thereto shall show marked
thereon the written approval of the Municipality's Director of Planning and Development and
Director of Public Works. The landscaping and fencing required to implement the approved
"Landscaping Plan" are referred to as the "Landscaping Works". The Owner further
acknowledges and agrees that the Municipality has the right to draw on the Letter of Credit
with respect to the Performance Guarantee for the "Landscaping Works" at any time when
deemed necessary by the Municipality's Director of Planning and Development.
9. SIDEWALKS AND WALKWAYS
The Owner shall reconstruct or repair, to the Municipality's specification, a sidewalk
along those portions of Highway No.2, Clarington Boulevard and Uptown Avenue which
abut the "said lands" and any reconstruction or repair of such sidewalks as a result of the
construction of the building and structures to be erected on the "said lands".
The walkway located on Part 8 of Reference Plan 40R-16730 which is shown on the
approved site plan as contained in Schedule "C' shall be constructed in accordance with the
approved site plan and shall be maintained as a walkway or means of pedestrian access
open to members of the public at all times,
10. ARCHITECTURAL CONTROL
The Owner agrees that prior to the issuance of building permits, it will submit to the
Municipality's Director of Planning and Development for his consideration and if appropriate,
written approval, a coloured schedule delineating the building materials and colours for all
buildings and structures.
The Owner further covenants and agrees that' no mechanical equipment, such as air
conditioners or ventilators, shall protrude from the roof or any other portion of the building
unless the design and location thereof, including the screening of such equipment from
public view, is approved by the Municipality's Director of Planning and Development.
11. APPROVAL OF PLANS AND SPECIFICATIONS
The Owner agrees that the issuance of any building permits in respect of the "said
lands" shall not be required by it until all plans and specifications which are to be approved
pursuant to this Agreement have been approved in writing by the Municipality's Director of
Planning and Development and Director of Public Works.
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12. REGISTRATION AND ENFORCEMENT
The Owner consents to the registration of this Agreement or a Notice thereof against
the title to the "said lands" and acknowledges that the Municipality may enforce the
provisions of this Agreement against the Owner of the "said lands" and subject to the
provisions of the Registry Act and the Land Titles Act, as amended, against any and all
subsequent Owners of the "said lands". The Owner further agrees to reimburse the
Municipality for all reasonable legal fees and deposits associated with undertaking the
registration of this Agreement.
13. FUTURE SERVICE CONNECTION - Not Applicable
The OWner agrees to connect to sanitary sewer, watermain and storm sewer if and
when these services are made available to the subject lands in the future. The Owner further
agrees to bear all connection and frontage charges related thereto.
14. APPROVAL OF LANDSCAPING WORKS COST ESTIMATE
The Owner agrees that, prior to the issuance of any building permit for a building
identified on Schedule "C" hereto, the estimated cost (the "Landscaping Works Cost
Estimate") of the construction and installation of the "Landscaping Works" in accordance with
the approved "Landscaping Plan" , respectively, shall be prepared by the Owner and
presented to the Municipality's Director of Planning and Development and the Director of
Public Works for their consideration and, if appropriate, their written approval. After the
Landscaping Works Cost Estimate has been approved by the Directors, the Owner and the
Mortgagee hereby authorize the Directors to annex the "Landscaping Works Cost Estimate"
to this Agreement as Schedule "0". Nevertheless, the approved "Landscaping Works Cost
Estimate" shall be deemed to have been included in this Agreement at the date of this
original execution, whether or not it was, in fact, so included and whether or not it is, in fact,
entered in Schedule "0" hereto.
15. LANDSCAPING PERFORMANCE GUARANTEE REQUIRED
The Owner acknowledges and agrees that notwithstanding any other provision of this
Agreement including the Servicing Agreement, in determining permitted reductions in the
amount of a Performance Guarantee respecting the Works and Streetscaping Works which
has been deposited with the Municipality, the Municipality may retain in the Performance
Guarantee an amount equal to the total amount shown on the approved "Landscaping Works
Cost Estimate" as the "Landscaping Performance Guarantee".
-6-
16. USE OF LANDSCAPING PERFORMANCE GUARANTEE
7
The Owner agrees that the Municipality may, at any time, draw upon and use all or
any part of the "Landscaping Performance Guarantee" if the Owner (1) fails to pay any costs
of the "Landscaping Works", or (2) fails to construct any of the "Landscaping Works" required
by this Agreement. If at any time in the opinion of the Director of Planning and Development
and the Director of Public Works, both acting reasonably, the "Landscaping Performance
Guarantee" is not sufficient to cover the costs of all "Landscaping Works", the Owner shall
deposit with the Municipality additional cash or a letter of credit equal to the amount of any
such deficiency within 30 days after written demand for payment is given to the Owner by
the Directors. Paragraph 15 applies in respect of such additional or amended Letter of
Credit if it comprises the additional required security deposited with the Municipality with all
changes necessary to it being considered to have been made to give effect to the intent of
this paragraph.
The "Landscaping Performance Guarantee" or so much of it that has not been drawn
upon by the Municipality in accordance with this Agreement will be returned to the Owner
upon completion of all "Landscaping Works" to the satisfaction of the Municipality's Director
of Planning and Development and the Director of Public Works who shall give the Owner
written notice of completion, provided that following the giving of such written notice of
completion the Municipality shall retain an amount equal to 20% of the "Landscaping
Performance Guarantee" as security for the Owner's guarantee of the "Landscaping Works"
for a period of one year following (1) the later of the dates which a separate notice of
completion of each of the "Landscape Works" is given to the Owner, and (2) the date on
which notice of completion of the "Landscaping Works" is given by the said Directors to the
Owner, if notices of completion of the "Landscaping Works" are not given to the Owner
simultaneously by the said Director (the "Effective Date of Completion").
The "Landscaping Works" shall be guaranteed by the Owner for a period of one year
commencing on the Effective Date of Completion. Forthwith after being given written notice
by the Directors requiring it to do so, the Owner at its cost shall correct all deficiencies in
the "Landscaping Works" shall replace all trees, plants and vegetation which die and rectify
all deficiencies in the "Landscaping Works". If the Owner fails to comply with such written
notice, the Municipality may enter on the "said lands", do the work, supply or replace the
trees, plants and vegetation or rectify the deficiency or deficiencies on behalf of the Owner,
and draw upon the portion of the "Landscaping Performance Guarantee" which has been
retained as security as the Owner's guarantee, either to reimburse the Municipality for, or
to pay the cost of so doing.
17. PAYMENT TO THE MUNICIPALITY
The Owner shall pay to the Municipality of Clarington by cash or certified cheque, the
sum of $ 20,417.74 being a fixed payment by the Owner to the Municipality in lieu of
parkland dedication for Parts 2, 3, 5, 6, 7, 8, 9, 10, 11, 13, 15, 17 and 18 of Registered Plan
40R-16730.
-7-
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17. PAYMENT TO THE MUNICIPAUTY - Continued
In addition, the Owner hereby agrees to make payments in lieu of parkland dedication
for the remaining lands described as Parts 4, 12, 14, 16 and 19 of Registered Plan 40R-
16730 prior to the issuance of future building permits in accordance with By-law No. 95-104.
18. PERMITS
Subject to compliance with the Ontario Building Code Act, upon the Owner complying
with the provisions of this Agreement respecting approval of all plans and specifications
provided for in it, building permits will be issued in accordance with the plans subject to
payment of the usual permit fees and other fees as are payable under By-law currently in
force in the Municipality and provided that all building plans comply with such other
Municipal by-laws as may be relevant and further provided that the Regional Municipality of
Durham has approved the necessary connections to. the municipal water and sanitary
sewage systems and where any Agreement is required in respect of storm water run-off, that
a copy of said agreement has been deposited with the Municipality.
19. LAPSE OF APPROVAL
In the event a building permit has not been issued to the Owner within the period of
two (2) years from the date of this agreement, the parties agree that the terms and
provisions of said agreement shall become null and void.
20. CONSTRUCTION COMMENCEMENT
The Owner shall commence construction of any building or buildings for which a
permit may be issued under paragraph 18 hereof as soon as is reasonably practicable
following the issuance of any such permit.
21. SERVICING AGREEMENT
The Parties hereto agree that the Servicing Agreement contained in Schedule "G"
annexed hereto, forms part of this Agreement and each warranty and covenant contained
in the Servicing Agreement shall be performed and enforceable as if it was a warranty or
covenant contained in this Development Agreement.
22. MAINTENANCE OF OIWGRIT SEPARATOR
The owner hereby agrees:
(a) That the oil/grit separator(s) be inspected by a qualified engineer at
appropriate intervals but no less than twice a year during the months of July
and November;
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22. MAINTENANCE OF OIL/GRIT SEPARATOR - Continued
(b) That the qualified engineer certify and advise the Municipality, the Ministry of
Natural Resources, and the Central Lake Ontario Conservation Authority that
the oil/grit separator(s) is functioning as outlined in the approved engineering
plans; and
(c) That if the qualified engineer finds that the Oil/grit separator(s) is not
functioning and/or requires maintenance, that the owner will be responsible
for repairing and/or cleaning of the separator(s).
23. POSTPONEMENT OF MORTGAGE
The Mortgagee hereby postpones his mortgage to this Agreement with the intent that
this Agreement shall take effect as though dated, executed and registered prior to the
mortgage. In the event that (1) the Mortgagee obtains an order of foreclosure against the
Owner, (2) the Mortgagee directly or indirectly takes possession of the Lands, or (3) the
Lands are sold after default occurs under the Mortgage, the Lands shall not be used or
developed by any person otherwise than in conformity with the provisions of this Agreement.
In order to give further assurance to the Municipality, the Mortgagee at its cost shall execute
a separate Postponement Agreement containing terms satisfactory to the Municipality's
Solicitor forthwith after being requested to do so by notice given in writing to the Mortgagee
and to deliver the same to the Municipality.
24. INTERPRETATION NOT AFFECTED BY HEADINGS
The division of this Agreement into paragraphs and the insertion of headings are for
convenience of reference only and shall not in any way affect the interpretation of this
Agreement.
25. SCHEDULES
The following Schedules which are attached hereto, together with all provisions
therein, are hereby made a part of this Agreement as fully and for all purposes as would be
the case if they were set out in the text of this Agreement as covenants and agreements:
Schedule "A" - "Legal Description of the Lands"
Schedule "B" - Not Used
Schedule "C'. - "Site Plan"
Schedule "0" - "Landscaping Works Cost Estimate"
Schedule "E" - Not Used
Schedule lip' - Not Used
Schedule "G" - "Servicing Agreement and First Amending Agreement"
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26. AUTHORITY OF MUNICIPAUTY
The Parties acknowledge and agree that the Municipality has authority to enter into
this Agreement, that every provision hereof is authorized by the law and is duly enforceable
by the Parties, and that this Agreement is made by the Municipality in reliance on the
acknowledgement and agreement of the Parties as aforesaid.
27. NOTICE
Any and all notices which may be given hereunder shall be delivered either personally
or by facsimile transmission to the parties at the following addresses:
(i) if to the Municipality, at:
Municipality of Clarington
40 Temperance Street
Bowmanville, Ontario L 1 C 3A6
Attention: Ms. Patti L. Barrie, Clerk
Facsimile: (905) 623-4169
(ii) if to the Owner, at:
Clarington Place Limited
140 Bond Street West
Oshawa, Ontario L 1 H 7L8
Attention: Mr. Glenn Willson, President
Facsimile: (905) 576-3213
(iii) if to the Mortgagee, at:
Willsonia Industries Limited
140 Bond Street West
Oshawa, Ontario L 1 H 7L8
Attention: Mr. Glenn Willson, President
Facsimile: (905) 576-3213
and shall be considered delivered if delivered personally, when received, or if
delivered by facsimile transmission before 4:30 p.m. on any business day, on the date of
sending, or if delivered by facsimile transmission after 4:30 p.m. on any business day, on
the next business day.
28. TIME OF ESSENCE
Time shall be of the essence of this Agreement.
29. BINDING EFFECT AND REGISTRATION
This Agreement shall ensure to the benefit of and be binding upon the Parties hereto
and their respective successors and assigns. The Owner and the Mortgagee consent to the
registration of a Notice of this Agreement on the title to the Lands.
..
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IN WITNESS WHEREOF the parties hereto have hereunto set their hands and seals the day
and year first above written and the parties hereto have hereunto affixed their corporate seals
by the hands of their proper officers duly authorized in that behalf.
SIGNED, SEALED AND DELIVERED
In the presence of: ) THE CORPORATION OF THE
) MUNICIPALITY OF CLARINGTON
)
)
)
)
)
)
)
) GTON PLACE LIMITED
) /
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) WILLSONIA INDUSTRIES LIMITED
)
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! afe;nn Willson, President
CLERK
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LIST OF SCHEDULES
A
Legal Description of the Lands
B
Not Used
C
Site Plan including:
Key Map
Site Plan Phase 1 - Final
Grading Plan Phase 1 - Final
Site Servicing Plan Phase 1 - Final
Building Elevations
Concept Site Plan
Concept Site Plan Enlargement
Construction Details
D
Landscaping Works Cost Estimate
E
Not Used
F
Not Used
G
Servicing Agreement and First Amending Agreement
THIS IS SCHEDULE "A" to the Agreement which has been authorized and approved.
pursuant to By-law No. 90-130 of the Town of Newcastle (now the Municipality of Clarington),
enacted and passed the 23rd. day of July, 1990.
13
LEGAL DESCRIPTION OF THE LANDS
ALL AND SINGULAR that certain parcel or tract of land and premises situate, lying and being
in the Municipality of Clarington, in the Regional Municipality of Durham, and being
composed of those Parts of Lots 15 and 16, Concession 1, former Township of Darlington
more particularly described as Parts 2 to 19 inclusive, on Registered Plan 40R-16730.
L.A.: 02.10.95
THIS IS SCHEDULE "C" to the Agreement which has been authorized and approved
pursuant to By-law No. 90-130 of the former Town of Newcastle (now the Municipality of 1 4
Clarington), enacted and passed the 23rd. day of July, 1990.
'AS PER ATTACHED'
L.R.: 02.10.95
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SITE OF APPROVED
BUILDINGS AND
STRUCTURES
TEMPORARY
PARKING LOT
LAND SUBJECT TO
FUTURE SITE PLAN
APPROVAL
ROADS TO
BE DEDICATED
ROADS FOR
FUTURE
DEDICATION
SCHEDULE
OESCRIPllON
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PLAN OF SURVEY
OF PART OF LOTS 15 & 16, CONCESSION 1,
TOWNSHIP OF DARLINGTON, now in the
MUNICIPALITY OF CLARINGTON
REGIONAL MUNICIPALITY OF DURHAM
BROWN " COOGAN L ro. . Ot.S . 1996.
SCALE - 1: 1000
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SURVEYOR'S 'CERTIFICA TE
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N\JNIOPNJ'fY (y Q..AAINGT'ON, REGIONAL MtMlClPAUTY ($ DURttAW.
NOTES & LEGEND
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ssm. 000t0'I!S SHORT STANDARD JRQol BAR
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CAUTION : THIS PLAN IS NOT A PlAN OF SUBDIVISION
WITHIN THE MEANING OF THE PlANNING ACT.
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!oIIlU ml(
8l.UllNO a.EVAllONS
Mesbur + Smith
Architects
~IT~~~f~~:;E~~;-~:~
fT'..w;AST Eb-EVATIOO
~J 1:100
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1:100
.....
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141 fClIIWJOOd AMhJe
Terum. 0I'\lva"
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...
pHASE 1. STATISTICS
TOTAL 1..0 f AREA:
8Ull..DIHa ARU: RES~~~~~
RESTAURANT;
TOU\. f!Ullonto A~k
PARKING AREA:
L"NQSCAPING AAU:
iI'( ...."" ClWUlN to ~t'lnr: waS" I
I ttUUY ttJl~lQ.'WJ.~~ N!l1~QJ" we ~ ,;~
~':'OIllII€fR. -,/.)p-..::;//;J:~~
=;;-u:~;;~:?;>..:~(: / 7>.~~'
Won.; ./ IU:O .hl _ -'''fllM.=s 1~,:~~,:::';~flI!~. M
w: :~ =- ~J::T' 1OM1'll111fl4.ll:t ,~C,..,.. ItI)MlItD 1'1
~~;::: ::; :~~I'l.~~,r=:ji !:lli1~A(tc~ tJf
DiE COIGUU:'lr: :'I~.\Q fH( Ill..SI.I~rt,U!( AAOllTlCI.
flI(_ltll'''~''''''~''''
IilJll,rcil ~
=::.::1
GUll.. . ~11ILf TO f,(OIUlE ~7i~~~0If;"i'rc-
~l~=Ul~N-=~ll'~.J~.t.:fCtl~ na ~~lPllfQIMI
1Il)AIl5DtPolIlrloENlI
JPII(I1'J.L, 1llIA.1~.IJllI,
12067.16.1
3012,Sl.:
5!i7.4o..
330.1311
~
S"".03.'
2333.1'"
ne.ox'
':
I
\l.
'I
'I
UPTOWN AVENUE ..
ffi-~- .
~
12
--. -BtD13=o- ,-
-,- - f~T1fll1 \ 111\1
L-TE:,::: P~f*:O~
THEATRE
(l33Dl!1ft")
~-r
:':::.:. -:\' I ..
u~~~rttHu
l1LLbLl)~JM-l
u~
'. .~ . ?~
RESTAURANT
.'1000""1
HIGHWAY tlo.2
~,~w.....
w.._
~'\
","n CE. ..',
CLARI~m~l~~ST HAIti
~~~~AL AREA . ....
WILLS~U5TRIE~
j
i'(
II
~' \
:1
j!
~
c
(fl\>'
~
UPTOWN AVENUE
,
$
1...N.....l. ~"u.
.............
-,
~-:.-
" - ....
~fi.
,.nIAlolffl COI<tMlf..1
UlG4.l0taJlIJlOl.,.Illt""
!VI OfUIU
-ffi
IIIIClt""I)llll
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IPCH lTw>rCAU
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1IUNlO.,J':El~ ---
----ffi
---@J
n._-ffi
""""""......
COH5UUA~.I'lW)fU:f~
HIGHWAY No.2
l.2 OF J
,~
-~
-- ---fJiJ
~
:i!lJ..
~:;~~
,--~
Uo\HIa. ~ O'IIIUl)U, M!iOCIAn:a tJ'D.
L.ANbSCAt'IAIlCI.unx:tS
I'''UU'T>
CLARINGTON PLACE
BOWWANVILLE WEST MAIN
CENTRAL AREA
WILLSONIA INDUSTRIES
CONCfPtSIf! Pl.AH
EtllARGEHEHT
InlL
lltl>ll;:nn,
fII,.l"~.
C'Ift;l...'O,
CllOII_I'.HIU....l
:::;: 94-002
.,.... I").*l
.~"'..
....
BA" If
ROOf
{
I
W~l
I!DLLARO
HODEL"NEweUAYPORT
ev lAYS r AN
l I'~\'---J
~AMSoTrfELCOT~'"tS~NlR
OY TEARA-FORM
TREE ORATE
HODEL A-8768 180' SQUARE
BY NEfNAH
BALLED
/.Ill
.......P..
SHRUBS SECTION
N,T,$,
{
PLANTER
MODEL TF 4230
QY TERRA-FORH
I....
~ 8lUQ.: 81( !MitotIC
p...nO\tt OO\.l6LE I"IOllm1
C(l.OIt TO DE SELECTED BY O)jNm
SAm fiLLED JOINtS
'SMIJ' f:Olif;' PlASTIC EDGE fl(SUtAUH AS
OISTRt6UTfll BY OECRA-lOl:, TO BE PL,lCEil
AlONQ .ALII ON All EDGES ,Wun{M; SOO on
atheR SoFT MATERIALS. EDUrNG ro tiE
SP(lo:.Ef) 00.'. ~I ]0_ l~ SPIKES
""
..
0' '
l
BRICK PAVING
I: 10
-PAl1EAHEO CONCRETE _,
ANGlED CGHHlOl JOINTs
i-111M REBAA5~-__.__
CtlHCRETE EOGIHB
BOTtI Stm::s OF
maSsING flYPI ---r:'~~
PEDESTRIAN
CROSSING
I; 10
I 1l~ll'
rf~l,
.ASPttAI..'f PAviNG ~----
-GR4H.X,.Ml ',.. COW'AcrfO
TO 00. 9.1",0,
GRMll.An 'D' t:l>>lfiACfED TO gas 5.".0.
DEPTh rllOH APMlOVED SUQGItAQ€ to
flOTTllH of GlW<<UR ....
!iM4) lfVfllUHl COURSE
-........"""...'*1....0"'..1.
...,,.,...,-,,..... ......""
,/,1.. ~':e':..:.;:.q: f'>.:. ';"::.r" .- .1'
l! /~:i~~if~~l~..
,~:L~2~J~~..;.
"-~r::;: ::.."":..~n~~.r:1
IlI<l_lllllll"IlI_"_LIO,
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~~~~..':'::.::~~:~r.
..,..l.......<t.._~IIQ
.."'1....1''''',..........'''
.U""'._~I>ll1l"_
.......a"'''.I.U_1t
....""......llU..'"
~~J:rfJ, :;~m.... lOt\.
----
DECIDUOUS TREE SECTION
N.T-.S.,
r
i
BENCH
MOOEL. TF5065 SV TERRA-fOAH
SITE FURNITURE
N.T ,S,
fENCE TO DE 'SlLVEA EA~lE' wi
GIAHONOS .lLONQ THE TOP EVERY
OTHER PICiCET l1lv utan (,t,filE
IHOOSfAlfS Oft APP!lUVfD fOUI\IAlENT
iCOLOUA Of fiNISH TO BE In.ACltl
~_._---~-"~-~--'-..-PRE.cAsr CONCRETE COPING
~-'----'--~-'--~'-~ ----ARRISCRAf'T STONE F.lCltfa OR
CON\'fHTIONAL HiUCK HA$ONAV
U OWNERS 0 rSeAttlo>>
15U{lM{T SAMPLE 1'0 l,..AN{lSCAPE
M\C.It. PRIOR Tn consfffiJt'flDH\
CAP
~-- -...t31l UIII. PfCKEfS
i IDUHONDI
l~--- -.0..... POST
) ISlJUARE)
n -- -~2~d5111. RAilS
ISGUAl'U!1
L,
&l
I
l
.}-"""" ~
r------"--..--..-.----~,,--~..eoo SQUARE CONCRETE BASE
1 ~g~~~:~~A;~~~~Jg~.lL
I ENGINEER IRE: SOltS IlEPOAfl
TO Bf COMPl.ETED DuRING
pnEPAAaTJOti OF CONSTRUCTiON
WORKING DR,I,IHNGS AND 'fENOE"
OOCUHEHIS
NASDNRY COLUMN/DECORATIVE FENCE
1: 20
It 11
. jM Q,C,
WillE Nf:5H
9 GAUGE
t-:,- '..-:;'-.,.,-.{ ll', ;~".,
I ~ ~~ I ~~ '----- TOP Of fOOUHU
t ll~) fa lie SlOPED I. 10-
~l' ~ "~l ~ HOfES;
~ f b ~ 1 LENGfH 8E1MEEH POSTS
f I i 'i fNO. COMER AND STRA HUNG POS7S 30411
!L : ~ ~ r::'~~:,H~~~tti~E~829 HIGH ffNtE
.':''>.., ,,\~<).~: i. ~~'~~~~',I,~ G~,~U:i~ ~ ~,I,Xl~.
;_Jf.1'-I 4. AU. OIMENSltlttS AIlE IN MJlU.HETflE5 f.-!~~ f
~. SEE p\"#,H FOP, fEm:E ~18H1S REOUIJlEO
CHAIN LINK FENCE (6 '-0.)
I: cO
lMLV. COUPi.ItfG OVER TOP RAIL JOIHTS
AUiHIIfJH tM'S
JiiH., ll).!..'f;' PIPe- ~rOP'RACL-
MOO UE5 . -4G~ C.C.
j
1
'"
r I
l-!!LJ
...-
1,l!:JliUI.U"',rtJ;,
>>tIOwU1nt1Uli
t, ,I .
~~
~"II
L_~~"__~=J
-"~1
ill_\"MH.'~
"-il~'f:--J'.'.\l. , --~~'j~,:.:.J-'---"- rm:
~-==---~,-= :::=~-===~::::;=:-
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l___~
LJ_J
lAM);5('A"llllllGN
CJONSlJLT.\notl.""tx:r..,~
lI:
:lillo. . ...... ............
~~~~~
twnn~0'8JlJEN.MSOClAmLm
~$)$('.M'f./IJlOU1il;JS
Cl.ARINOTON PLACE
80WMANVIl.l.E WEST MAIN
CENTRAL AREA
WII.I.SONIA INOUSTRIES
COHSTAUCUOH DfTAILi!I
Ql;f ,_ ","UlI.fflftl
:::::: 0"-002
",.t. PMI.1llll.
LJOf!
THIS IS SCHEDULE "0" to the Agreement which has been authorized and approved
pursuant to By-law No. 90-130 of the former Town of Newcastle (now the Municipality of 2 3
Clarington), enacted and passed the 23rd. day of July, 1990.
LANDSCAPING WORKS COST ESTIMATE
Landscaoina Item
Costs
Brick Paving
$ 15,570.00
$ 13,640.00
$ 7,334.00
$ 3,720.00
Concrete Paving
Concrete Paving - Infill (Plain Finish)
Chainlink Fence (1.8 m height)
Chainlink Fence (1.2 m height)
Masonry Columns
$ 3,840.00
$ 7,250.00
$ 26,400.00
Decorative Metal Fence
Tree Grates
$ 6,600.00
Concrete Site Furnishings
Benches
Total Landscaping Works Costs
$ 9,500.00
$ 3,750.00
$ 2,600.00
$ 3,742.00
$ 9.165.00
$113,111.00
Bollards
Planters
Sodding
Plant Material
L.A.: 02.10.95
THIS IS SCHEDULE "G" to the Agreement which has been authorized and approved
pursuant to By-law No. 90-130 of the former Town of Newcastle (now the Municipality of
Clarington), enacted and passed the 23rd. day of July, 1990.
24
SERVICING AGREEMENT AND FIRST AMENDING AGREEMENT
L.A.: 02.10.95
THIS AGREEMENT made in quintuplicate as of this 24th day of May, 1994.
BE1WEEN:
THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON
- and -
WILLSONIA INDUSTRIES LIMITED
- and -
CLARINGTON PLACE LIMITED
I'
S E R V I C IN GAG R E E MEN T
'L..../ .
25
./':')
/
26
TABLE OF CONTENTS
ARTICLE
1.1
1.2
1 . INTERPRETATION AND SCHEDULES . . . . . . . . . . . . . . . . . . . .. 3
Definitions ............................................. 3
Schedules ............................................. 10
ARTICLE 2. GENERAL ........................................... 11
2.1 Recitals in Operative Part of Agreement ...................... 11
2.2 Certification of Ownership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 11
2.3 Not used. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 12
2.4 Transfer of Easements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 12
2.5 Transfer of I..ands ....................................... 13
2.6 Registration of Transfers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 13
2.7 Not Used ............................................. 13
2.8 Charge on I..ands . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 13
2.9 Registration of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 13
2.10 Renegotiation and Amendment of Agreement. . . . . . . . . . . . . . . . .. 14
2.11 Municipality to Act Promptly . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 14
2.12 Assignment of Agreement ................................. 14
2.13 Not Used ............................................. 14
2.14 Notification of Owner .................................... 15
2.15 Postponement of Mortgage ................................ 15
2.16 Successors............................................. 15
ARTICLE 3. FINANCIAL .......................................... 16
3.1 Payment of Taxes ....................................... 16
3.2 Payment of Local Improvement Charges ...................... 16
3.3 Payment of Drainage Charges .............................. 16
3.4 Highway No.2 Street Lighting and Sidewalk Contribution ......... 16
3.5 Not used. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 17
3.6 Performance Guarantee Required ........................... 18
3.7 Use of Performance Guarantee ............................. 20
3.8 Indemnification of Municipality. . . . . . . . . . . . . . . . . . . . . . . . . . . .. 21
3.9 Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 21
3.10 Maintenance Guarantee Required. . . . . . . . . . . . . . . . . . . . . . . . . .. 21
3.11 Use of Maintenance Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 22
3.12 Reduction and Release of Performance Guarantee .............. 22
3.13 Reduction and Release of Maintenance Guarantee .............. 24
3.14 Payment of Municipality's Costs. . . . . . . . . . . . . . . . . . . . . . . . . . . .. 24
3.15 Unpaid Monies ......................................... 25
3.16 Not used. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 25
~
27
ii
ARTICLE 4 - PLANNING............ ... . .... . . . . . .. ... . . . ........ .. 25
4.1 Not Used ............................................. 25
4.2 Landscaping Plan and Landscaping Requirements ............... 25
4.3 Use of l.ands . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 26
4.4 Not used . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 27
4.5 Lands Requiring Site Plan. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 27
4.6 Requirements for Building Permits .......................... 27
4.7 Not used . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 29
4.8 Not used . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 29
4.9 Requirements for Sale of Lands . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 29
4.10 Not used . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 30
4.11 Not used. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 30
4.12 Special Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 30
ARTICLE 5 - PUBLIC WORKS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 31
5.1 Municipality Works Required .............................. 31
5.2 Utilities and Services Required ............................. 31
5.3 Owner's Engineer ....................................... 32
5.4 Design of Works ............ . . . . . . . . . . . . . . . . . . . . . . . . . . .. 33
5.5 Engineering Drawings .................................... 33
5.6 Approval of Grading and Drainage Plan ...................... 35
5.7 Staging of Construction ................................... 35
5.8 Approval of Schedule of Works. . . . . . . . . . . . . . . . . . . . . . . . . . . .. 36
5.9 Approval of Works Cost Estimates and Stage Cost Estimates . . . . . .. 36
5.10 Requirements for Authorization to Commence Works ............ 36
5.11 Requirements for Commencement of Subsequent Stages of Works. .. 39
5.12 Inspection and Stop Work. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 39
5.13 Construction in Accordance with Engineering Drawings . . . . . . . . . .. 40
5.14 Sequence of Construction of Works. . . . . . . . . . . . . . . . . . . . . . . . .. 40
5.15 Completion Time for Construction of Works ................... 40
5.16 Additional Work. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 41
5.17 Incomplete or Faulty Works and Uens ....................... 41
5.18 Acknowledgement Respecting Emergency etc. Repairs. . . . . . . . . . .. 43
5.19 Damage to Existing Services ............................... 43
5.20 Not Used ............................................. 44
5.21 Use of Works by Municipality .............................. 44
5.22 Maintenance of Roads after Completion ...................... 44
5.23 Requirements for Certificate of Completion . . . . . . . . . . . . . . . . . . .. 45
5.24 Requirements for Certificate of Acceptance . . . . . . . . . . . . . . . . . . .. 45
5.25 Ownership of Works by Municipality. . . . . . . . . . . . . . . . . . . . . . . .. 46
28
iii
5.26 Requirements for Certificate of Release ...................... 46
5.27 Not Used . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 47
5.28 Cost of Works Referred to in Schedule "G" .................... 47
ARTICLE 6 - COMPLIANCE WITH REGULATIONS .................... 47
ARTICLE 7 - REPLICATION IN SUBDIVISION AGREEMENTS.......... 47
ARTICLE 8 - NOT USED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 47
ARTICLE 9 - EFFECTIVE DATE AND UNWINDING................... 48
9.1 Effective Date and Date of Final Approval .................... 48
9.2 Permitted Amendments to the Amending By-law. . . . . . . . . . . . . . .. 51
9.3 Unwinding of this Agreement .............................. 52
ARTICLE 10 - DEVELOPMENT OF THE LANDS SUBSEQUENT TO
PHASE I .................................................. 54
10.1 Subsequent Phases ...................................... 54
ARTICLE 11 - ASSUMPTION OF OBLIGATIONS....................... 55
ARTICLE 12 - TIME OF ESSENCE ................................ 56
ARTICLE 13 - AUTHORITY TO MAKE AGREEMENT ................. 56
SCHEDULES TO AGREEMENT
Schedule "A"
Schedule "B"
Schedule "C"
Schedule "D"
Schedule "E"
Schedule "F"
"Legal Description of the Lands"
"Preliminary Site Plan"
"Charges Against the Lands"
Not used
"Transfer of Easements"
Schedule "G"
"Lands to be Transferred to Municipality and/or
Cash to be Paid in Lieu Thereof'
"Works Required"
"Streetscaping Works"
"Utilities and Services Required"
"Duties of Owner's Engineer"
"Works Cost Estimates"
"Starting Estimated Costs"
Schedule "G-l"
Schedule "H"
Schedule "I"
Schedule "J"
Schedule "J-1"
29
IV
Schedule "K" "Insurance Required"
Schedule "L" "Regulations for Construction"
Schedule "M" Not used
Schedule "N" Not used
Schedule "0" Not used
Schedule "P" Not used
Schedule "Q" Not used
Schedule "R" "Engineering and Inspection Fees"
Schedule "S" Not used
Schedule "T' Not used
Schedule "U" Not used
Schedule "V" Not used
Schedule "W" Not used
Schedule "X" "Permitted Encumbrances"
30
Servicing Agreement
Page 2
THIS AGREEMENT made in quintuplicate as of this 24th day of May, 1994.
BET WEE N:
THE CORPORATION OF THE MUNICIPALIlY OF CLARINGTON
(hereinafter called the "Municipality")
OF THE FIRST PART
- and -
WILLSONIA INDUSTRIES LIMITED
(hereinafter called the "M 0 r t Q I'l Q e e" )
OF THE SECOND PART
- and -
CLARINGTON PLACE LIMITED
(hereinafter called the " 0 w n e r" )
OF THE THIRD PART
WHEREAS:
A. The lands owned by the Owner which are affected by this Agreement are
described in Schedule "A" hereto, and are hereinafter called the "Lands";
B. The Owner represents and warrants that subject to Recital C it is the
registered Owner of the Lands in fee simple absolute subject to the permitted encumbrances
set out in Schedule "Y" hereto;
C. The Owner represents and warrants that the Mortgagee is the only mortgagee
or chargee of the Lands;
D. The Owner represents and warrants that it has or will enter into an
Agreement with the appropriate Public Utilities Commission or other authority or company
having jurisdiction in the area of the said Lands for the design and installation of the
utilities and services referred to in Schedule "H" and hereinafter called the "Utilities and
Services";
31.
Servicing Agreement
Page 3
E. The Municipality and the Owner hereby recognize and agree that the purpose
of this Agreement is to state the covenants of both parties with respect to the design and
construction of roadways, storm sewers and associated works within the Lands; and
F.
This Agreement is authorized by By-law No. 94-77 passed on May 24, 1994.
NOW THEREFORE WITNESSETH THAT in consideration of the premises and
the covenants hereinafter expressed, and the sum of two ($2.00) dollars of lawful money of
Canada, now paid by each Party to the others (the receipt whereof by each Party is hereby
acknowledged), the Parties hereto covenant and agree to and with each other as follows:
ARTICLE 1 - INTERPRETATION AND SCHEDULES
1.1 Definitions
l'
(1) In this Agreement the term:
(a) "Adjusted Starting Estimated Cost" has the meaning assigned to it in
paragraph 3.6(3) of this Agreement.
(b) "Adjustment Date" has the meaning assigned to it in paragraph 3.6(3) of
this Agreement.
(c) "Amending By-law" means the provisions of OP A No. 56 which are required
to come into force before By-law No. 94-16 which has received first and
second reading by Council on January 24, 1994 being an amendment to the
Municipality's Zoning By-law (By-law No. 84-63 as amended) to permit the
construction of commercial development on the Lands or a portion thereof
comes into force under the Planning Act and By-law No. 94-16.
(d) "Applicant" means an individual, an association, a partnership or
corporation who applies for the necessary building permits for the lots or
blocks covered by this Agreement.
(e) "Application to Court" has the meaning assigned to it in paragraph 9.1(b)(i)
of this Agreement.
32
Servicing Agreement
Page 4
(f) "Appropriate Authority" means the Municipality, the Region, a Ministry of
the Crown in right of Ontario or other authority or agency considered to
be appropriate for the purpose by the Director.
(g) "Authorization to Commence Works" has the meaning assigned to it in
paragraph 5.10 of this Agreement.
(h) "Board" means the Ontario Municipal Board.
(i) "Building Code Act" means the Building Code Act R.S.O. 1990 c. B. 13, as
it may be amended or replaced from time to time.
G) "Certificate of Acceptance" has the meaning assigned to it in paragraph 5.24
of this Agreement.
(k) "Certificate of Completion" has the meaning assigned to it in paragraph 5.23
of this Agreement.
(1) "Certificate of Release" has the meaning assigned to in it paragraph 5.26 of
this Agreement.
(m) "Commissioner" means the Commissioner of Planning of the Regional
Municipality of Durham.
(n) "Completion Date" has the meaning assigned to it in paragraph 8.1(1) of
this agreement.
(0) "Construction Lien Act" means The Construction Lien Act, R.S.O. 1990 c.
C.30 as it may be amended or replaced from time to time.
(p) "Council" means the Council of The Corporation of the Municipality of
Clarington.
(q) "Court" means the Ontario Court (General Division).
(r) "Damaged Services" has the meaning assigned to it in paragraph 5.19 of this
Agreement.
33
Servicing Agreement
Page 5
(s) "Date of Final Approval of the Amending By-law" has the meaning assigned
to it in paragraph 9.1 of this Agreement.
(t) "Development Charge" has the same meaning as is assigned to the term in
the Development Charges Act R.S.O. 1990, c. D.9.
(u) "Development Charge By-law" means Municipality By-law 92 - 105 as it may
be amended or replaced from time to time, and the term includes a
successor by-law to By-Law No. 92-105 which is passed under subsection
3(1) of the Development Charges Act.
(v) "Development Charges Act" means the Development Charges Act, R.S.O.
1990 c. D.9, as it"'may be amended or replaced from time to time.
(w) "Director" means the Director of Public Works of the Municipality of
Clarington or his designated representative.
(x) "Director of Community Services" means the Director of Community
Services or his designated representative.
(y) "Director of Planning" means the Director of Planning and Development
of the Municipality of Clarington or his designated representative.
(z) "Drainage Act" means the Drainage Act R.S.O. 1990, c. D. 17 as it may be
amended or replaced from time to time.
(aa) "Effective Date" has the meaning assigned to it in paragraph 9.1 of this
Agreement.
(bb) "Engineering Drawings" has the meaning assigned to it in paragraph 5.5 of
this Agreement.
(cc) "Final Disposition" has the meaning assigned to it in paragraph 9.1(b)(ii)
of this Agreement.
(dd) "Final Works" has the meaning assigned to it in Schedule "G" of this
Agreement.
34
Servicing Agreement
Page 6
(ee) "Grading and Qrainage Plan" has the meaning assigned to it in paragraph
5.6 of this Agreement.
(ff) "Highway No.2 Contribution" has the meaning assigned to it in paragraph
3.4(1) of this Agreement.
(gg) "Highway No.2 Security" has the meaning assigned to it in paragraph 3.4(1)
of this Agreement.
(hh) "Initial Security" has the meaning assigned to it in paragraph 3.6(1) of this
Agreement.
(ii) "Initial Works" has the meaning assigned to it in Schedule "G" of this
Agreement.
(jj) "Land Registry Office" has the meaning assigned to it in Schedule "A" of
this Agreement.
(kk) "Lands" has the meaning assigned to it in Recital A of this Agreement.
(11) "Landscaping Plan" has the meaning assigned to it in paragraph 4.2(2) of
this Agreement.
(mm) "Maintenance Guarantee" has the meaning assigned to it in paragraph
3.10(1) of this Agreement.
(nn) "Master Drainage Plan" has the meaning assigned to it in Schedule "G" of
this Agreement.
(00) "Minister" means the Minister of Municipal Affairs, Ontario.
(Pp) "Municipality" means The Corporation of the Municipality of Clarington or
any official, designated by Council to administer the terms of this
Agreement.
(qq) "Notice ofTennination" has the meaning assigned to it in paragraph 9.3 of
this Agreement.
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Servicing Agreement
Page 7
(rr) "Occupational Health and Safety Act" means the Occupational Health and
Safety Act R.S.O. 1990 c. 0.1 as it may be amended or replaced from time
to time.
(ss) "OMB Hearing" means the Ontario Municipal Board Hearing scheduled to
commence on January 31, 1994 to consider referrals of the OPAs.
(tt) "OPA No. 40" means proposed OffIcial Plan Amendment No. 40 to the
Official Plan of the Municipality.
(uu) "OPA No. 255" means proposed Official Plan Amendment No. 255 to the
Official Plan of the Region.
(vv) "OPA No. 56" means proposed Official Plan Amendment No. 56 to the
Official Plan of the Municipality.
(ww) "OPA No. 290" means proposed Official Plan Amendment No. 290 to the
Official Plan of the Region.
(xx) "OPAs" mean collectively OPA No. 56 (Schedule "D" of which is attached
as Schedule "B"), OPA No. 255 and OPA No. 290 and the provisions of the
proposed Official Plan of the Region which were referred to the OMB by
the Minister of Municipal Affairs which are joined to and consolidated with
the hearing by the OMB of the applications to approve OP A No. 56, OP A
No. 255 and OPA No. 290.
(yy) "Owner" means the Party of the Second Part to this Agreement, its
successors and assigns and when used to refer to a successor or assignee of
such Party, or to another person, an owner includes an individual, an
association, a partnership or a corporation.
(zz) "Owner's Engineer" means a consulting civil engineer experienced in
performing the duties set out in Schedule "I" of this Agreement who or
which is a partnership, association of persons or a corporation that holds
a certificate of authorization, in their or its own name to practice
professional civil engineering and is a licensed to do so under the
Professional Engineers Act R.S.O. 1990 c. P.2S as it may be amended from
time to time provided that the Owner's Engineer shall not be the Owner,
or an officer, director, shareholder or employee of the Owner.
36
Servicing Agreement
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(aaa) "Permitted Amendments" has the meaning assigned to it paragraph 9.2(a)
of this Agreement.
(bbb) "Performance Guarantee" has the meaning assigned to it in paragraph 3.6
of this Agreement.
(ccc) "Permitted Amendments" has the meaning assigned to it in paragraph 9.02
of this Agreement.
(ddd) "Permitted Encumbrances" means those interests in the Lands which have
been registered in the Land Registry Office contained in Schedule "Y"
hereto.
(eee) "Phase I of the Development of the Lands" means the development of those
portions of the Lands identified as "Phase I Buildings" as shown on the plan
contained in Schedule "B" hereto.
(fff) "Phase II of the Development of the Lands" means the development of
those portions of the Lands identified as "Phase II Buildings" as shown on
the plan contained in Schedule IIBII hereto.
(ggg) "Planning Act" means the Planning Act R.S.O. 1990 c. P. 13 as it may be
amended or replaced from time to time.
(hhh) "Reapproved Engineering Drawings" has the meaning assigned to it in
paragraph 5.5 of this Agreement.
(ill) "Reapproved Grading and Drainage Plan" has the meaning assigned to it
in paragraph 5.6 of this Agreement.
(ill) "Region" means The Corporation of the Regional Municipality of Durham.
(ill) "Related Works" has the meaning assigned to it in Schedule "G" of this
Agreement.
(lll) "Retail Shopping Mall Lands" has the meaning assigned to it in paragraph
8.1(3) of this Agreement.
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Servicing Agreement
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(nunm) "Road System" has the meaning assigned to it in Schedule "G" of this
Agreement.
(nnn) "Schedule of Works" has the meaning assigned to it in paragraph 5.8 of this
Agreement.
(000) "Security for the Maintenance Guarantee" has the meaning assigned to it
in paragraph 3.12(1) of this Agreement.
(Ppp) "Solicitor" means the Solicitor for the Municipality.
(qqq) "Stage Cost Estimates" has the meaning assigned to it in paragraph 5.9 of
this Agreement.
(rrr) "Staging Plan" means the staging plan for the Lands approved by the
Director of Public Works pursuant to paragraph 5.11 of this Agreement.
(sss) "Starting Estimated Cost" has the meaning assigned to it in paragraph
3.6(3) of this Agreement.
(ttt) "Stormwater Management System" has the meaning assigned to it in
Schedule "G" of this Agreement.
(uuu) "Storm Sewer System" has the meaning assigned to it in Schedule "G" of
this Agreement.
(vvv) "Street Lighting System" has the meaning assigned to it in Schedule "G" of
this Agreement.
(www) "StreetscapingWorks" has the meaning assigned to it in Schedule "G-l" of
this Agreement.
(xxx) "Tile Drainage Act" means the Tile Drainage Act R.S.O. 1990, c. T.8 as it
may be amended or replaced from time to time.
(yyy) "Transferred Roads" has the meaning assigned to it in Schedule "P" of this
Agreement.
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Servicing Agreement
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(zzz) "Treasurer" means the Treasurer of the Municipality or his designated
representative.
(aaaa) "Unwinding Date" has the meaning assigned to it in paragraph 9 .3( a) of this
Agreement.
(bbbb) "Upgrade Costs" has the meaning assigned to it in paragraph 3.6(3)(a) of
this Agreement.
(cccc) "Utilities and Services" means the utilities and services referred to in
Schedule "H" of this Agreement.
(dddd) "Works" has the meaning assigned to it in paragraph 5.1 of this Agreement.
(eeee) "Workers' Compensation Act" means the Workers' Compensation Act
R.S.O. 1990, c. W.ll as it may be amended or replaced from time to time.
(ffff) "Works Cost Estimates" has the meaning assigned to it in paragraph 5.9 of
this Agreement.
(2) Whether or not it so provides explicitly, every provision of this Agreement by which
the Owner is required to undertake any action shall be deemed to include the words
"at the cost of the Owner".
(3) Unless the context otherwise requires when used in this Agreement, the singular
includes the plural and the masculine includes the feminine.
(4) The covenants and obligations of the Owner as set out in this Agreement shall be the
joint and several covenant and obligation of each party identified as an Owner.
1.2 Schedules
The following Schedules which are attached hereto, together with all provisions
therein, are hereby made a part of this Agreement as fully and for all purposes as would be
the case if they were set out in the text of this Agreement as covenants and agreements:
Schedule "A"
Schedule "B"
Schedule "C"
"Legal Description of the Lands"
"Preliminary Site Plan"
"Charges Against the Lands"
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Servicing Agreement
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Schedule "0"
Schedule "E"
Schedule "F"
Not used
"Transfer of Easements"
"Lands to be Transferred to Municipality and/or
Cash to be Paid in Lieu Thereof'
"Works Required"
"Streetscaping Works"
"Utilities and Services Required"
"Duties of Owner's Engineer"
"Works Cost Estimates"
"Starting Estimated Costs"
"Insurance Required"
"Regulations for Construction"
Not used
Not used
Not used
Not used
Not used
"Engineering and Inspection Fees"
Not used
Not used
Not used
Not used
Not used
Schedule "G"
Schedule "G-1"
Schedule "H"
Schedule "I"
Schedule "J"
Schedule "J-1"
Schedule "K"
Schedule "L"
Schedule "M"
Schedule "N"
Schedule "0"
Schedule "P"
Schedule "Q"
Schedule "R"
Schedule "S"
Schedule 'T'
Schedule "U"
Schedule "V"
Schedule "W"
Schedule "X"
"Permitted Encumbrances"
ARTICLE 2. GENERAL
2.1 Recitals in Operative Part of Atp"eement
The Owner represents and warrants to the Municipality that each of Recitals A to
F of this Agreement is correct.
2.2 Certification of Ownership
(1) On the execution of this Agreement, the Owner shall provide the Municipality with
a letter signed by an Ontario Solicitor and addressed to the Municipality certifying
as to the title of the said Lands and setting out the names of all persons having
interests in the said Lands and the nature of their interests.
40
Servicing Agreement
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(2) On the execution of this Agreement, the Owner shall provide the Municipality with
a letter signed by an Ontario Solicitor and addressed to the Municipality certifying
as to the title of any land outside the limits of the said Lands, which is to be
conveyed to the Municipality or in which easements are to be transferred to the
Municipality pursuant to the terms of this Agreement.
2.3 Not used
2.4 Transfer of Easements
(1) Within forty-five (45) days of the Effective Date, the Owner, at its cost, shall deliver
to the Municipality the executed transfers of easements which are set out in Schedule
"E" together with a certificate signed by an Ontario Solicitor and addressed to the
Municipality certifying as to the title to such land being transferred and shall pay to
the Municipality in cash or by certified cheque the amount which is equal to any tax,
fee or cost payable at the time of or in respect of the registration of such transfers
against the title to the lands to which they apply. Such transfers shall be free and
clear of all encumbrances and restrictions, shall be made for a nominal consideration,
shall contain provisions satisfactory to the Municipality's Solicitor, and shall be in
registerable form.
(2) If, subsequent to the Effective Date, but prior to the issuance of a building permit(s)
for building(s) proposed to be constructed on the Lands or a portion(s) thereof, in
the opinion of the Director further easements in the Lands or such portion(s) thereof
are required to be transferred to the Municipality, the Region of Durham, the
Clarington Hydro-Electric Commission or other appropriate authority or company
for Municipality purposes, Region of Durham purposes or for Utilities and Services,
as the case may be, or for drainage purposes, the Owner agrees to transfer to the
Municipality, the Region of Durham, the Clarington Hydro-Electric Commission or
other appropriate authority or company, as the case maybe, such further easement(s)
forthwith after a written request to do so is given to it by the Director. If further
easements are requested to be transferred to the Municipality, the Region of
Durham, the Clarington Hydro-Electric Commission, or other appropriate authority
or company, as the case may be, the provisions of paragraph 2.4(1) shall apply with
all necessary changes to it being considered to have been made to give effect to the
intent of this paragraph 2.4(2)
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Servicing Agreement
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2.5 Transfer of Lands
Within forty-five (45) days of the Effective Date, the Owner shall deliver to the
Municipality executed transfers, sufficient to vest in the Municipality title in fee simple
absolute free and clear of all encumbrances and restrictions, of the lands set out in Schedule
"F" hereto together with a certificate signed by an Ontario Solicitor and addressed to the
Municipality certifying as to the title to such lands being transferred and shall pay to the
Municipality in cash or by certified cheque an amount of money which is equal to any tax,
fee, or cost payable at the time of or in respect of the registration of such transfers against
the title to the lands to which they apply. All transfers referred to in this paragraph 2.5
shall contain provisions to the satisfaction of the Municipality's Solicitor, shall be made for
a nominal consideration, and shall be in a registerable form.
2.6 Re2istration of Transfers
The transfers of easements and lands referred to in paragraphs 2.4 and 2.5 shall be
prepared by the Owner and if registered, shall be registered at the Owner's expense.
Acceptance and registration of any or all of such transfers shall be at the option of the
Municipality.
2.7 Not Used
2.8 Charee on Lands
The Owner hereby charges all its interest in the Lands with the obligations set out
in this Agreement.
2.9 Re2istration of Aueement
The Owner hereby consents to the registration of this Agreement or a notice thereof
against the title to the Lands. On or after the delivery to the Municipality of the transfers
required pursuant to paragraphs 2.4 and 2.5, the Owner will not register, permit or suffer
any person to register any instrument after the registration of this Agreement or notice
thereof against the title to the Lands unless this Agreement and any transfers or other
documents required to be furnished hereunder have first been registered against the title
to the Lands or the appropriate portion(s) thereof, as the case may be or a postponement
of any such instrument in an effective and registerable form is concurrently delivered to the
Municipality. The Municipality shall proceed expeditiously to register the said transfers
following receipt of same. Without derogating from the foregoing, the Owner also hereby
42
Servicing Agreement
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consents to the registration of a Caution(s) against the title to the Lands or the relevant
portion(s) thereof as the case may be, in order to give further effect to the foregoing and
acknowledge that the Municipality has reasonable cause to register a Caution(s).
2.10 Reneeotiation and Amendment of A2l'eement
(1) From time to time by mutual agreement, the Parties hereto may amend the terms
of this Agreement and any of the Schedules, but an amendment shall only be
effective if in writing and executed under the seals and hands of the proper officers
of each Party.
(2) H the Owner makes application to the Region for a Plan of Subdivision or to the
Committee of Adjustment of the Municipality for a consent to sever (including but
not limited to the Severance Application) in respect of the Lands or a portion(s)
thereof then the Owner hereby irrevocably consents to a condition of approval of
such application(s), from time to time, that the Owner enters into a Subdivision
Agreement with the Municipality pursuant to the provisions of Section 51 or 53 of
the Planning Act as the case may be which agreement( s) shall give further effect to
the provisions of this Agreement.
2.11 Municipality to Act Promptly
Wherever the Municipality, the Municipality's Solicitor, the Municipality's Treasurer
or any Municipality Director is required to take action pursuant to this Agreement, or is
required to make a decision or render an opinion, or give confirmation or give
authorization, permission or approval, then such action, decision, confirmation,
authorization, permission or approval shall be made promptly in all respects and the
Municipality and its officials shall act reasonably.
2.12 Assil:l1ment of A2l"eement
The Owner shall not assign this Agreement without prior written consent of the
Municipality. For greater certainty, any assignment which is made contrary to this
paragraph 2.12 does not relieve a subsequent Owner of the Lands of any of his obligations
under this Agreement.
2.13 Not Used
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Servicing Agreement
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2.14 Notification of Owner
H any notice or other document is required to be or may be given by the Municipality
or by any official of the Municipality to the Owner under this Agreement, such notice shall
be mailed by first class prepaid post or delivered to:
The Owner:
Clarington Place Limited
104 Bond Street West
Oshawa, Ontario
L1G lA7
or such other address of which the Owner has notified the Municipality in writing. Any such
notice so mailed or delivered shall be deemed good and sufficient notice under the terms
of this Agreement and shall be effective from the date which it is so mailed or delivered.
2.15 Postponement of Mortaaae
The Mortgagee hereby postpones its mortgage to this Agreement with the intent that
this Agreement shall take effect as though dated, executed and registered prior to the
mortgage(s). In the event that (1) the Mortgagee obtains an order of foreclosure against
the Owner, (2) the Mortgagee directly or indirectly takes possession of the Lands, or (3) the
Lands are sold after default occurs under the mortgage(s), the Lands shall not be used or
developed by any person otherwise than in conformity with the provisions of this Agreement.
In order to give further assurance to the Municipality, the Mortgagee at its cost shall
execute a separate Postponement Agreement containing terms satisfactory to the
Municipality's Solicitor forthwith after being requested to do so by notice given in writing
to the Mortgagee and to deliver the same to the Municipality.
2.16 Successors
This Agreement shall enure to the benefit of and be binding on the Parties hereto,
and their respective successors and assigns. The parties acknowledge and agree that the
terms, conditions, covenants and obligations contained in the Existing Servicing Agreement
shall continue in full force and effect and the provisions of this Agreement shall not
derogate therefrom.
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Servicing Agreement
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ARTICLE 3 - FINANCIAL
3.1 Payment of Taxes
Prior to the date of execution of this Agreement, the Owner shall pay all municipal
taxes outstanding against the Lands, as set out in Schedule "C" hereto. In addition, the
Owner shall pay any municipal taxes which may become due in respect of the whole or any
one or more portions of the Lands after the date of execution of this Agreement in
accordance with the law.
3.2 Payment of Local Improvement Char~es
Prior to the date of execution of this Agreement, the Owner shall pay all charges with
respect to local improvements assessed against the said Lands as set out in Schedule "C"
hereto. Such charges shall include the Municipality's share of any local improvements which
serve the said Lands and shall include the commuted value of such charges including
charges falling due after the date of the execution of this Agreement.
3.3 Payment of Drainal:e Chal"l:es
Prior to the date of the execution of this Agreement, the Owner shall pay all
drainage charges assessed under the Drainage Act and the Tile Drainage Act against the
Lands, as set out in Schedule "C" hereto, including the commuted value of such charges
falling due after the date of execution of this Agreement.
3.4 Hi2hway No.2 Street Lil:htin~ and Sidewalk Contribution
(1) The Owner agrees to pay to the Municipality upon written demand therefor the
Owner's contribution as determined by the Director towards the reconstruction of
and installation of the Street Lighting System and Sidewalks on Highway No.2 (the
"Highway No. 2 Contribution"). The Highway No. 2 Contribution is currently
estimated to be six thousand three hundred and seventy-eight dollars ($6,378.00) the
calculation thereof is more particularly set out in Schedule "J.l" hereto. No later
than submitting an application for a building permit (the "Building Permit
Application") for construction on the Lands or a portion thereof the Owner shall
deposit with the Municipality, cash or an irrevocable and unconditional letter of
credit issued by a Bank listed in Schedules ''1'' or "II" of the Bank Act, acceptable to
the Municipality's Treasurer and containing terms satisfactory to the Municipality's
Treasurer (the "Highway No. 2 Security") in an amount equal to the' Owner's
45
Servicing Agreement
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Highway No.2 Contribution unless the Owner has already paid the Highway No.2
Contribution pursuant to written demand therefor. If from time to time the Director
is of the opinion that the amount of the Owner's Green Road contribution should
be increased to reflect a revised estimate of the costs of the reconstruction and
installation of the Street Lighting System and Sidewalks in Highway No.2 or the
Owner's Contribution thereto in accordance with the existing scope of work, forthwith
after the Director gives written notice to the Owner requiring an increase in the
amount of the Highway No.2 Security, the Owner shall deposit with the Municipality
cash or an unconditional and irrevocable letter of credit in such amount issued by a
bank listed in Schedule "I" or "II" of the Bank Act that is acceptable to the
Municipality's Treasurer and containing terms satisfactory to the Municipality's
Treasurer. In the event that the Owner does not increase the amount of the
Highway No.2 Security for a period of thirty (30) days following the giving of written
notice by the Director to the Owner requiring an increase in the amount of the
Highway No.2 Security, (1) all authorizations to commence work that have been
issued shall terminate, and (2) the Owner shall not apply for or require the issuance
of any permit for the construction of buildings on any part of the Lands pursuant to
the Building Code Act. Without derogating from the other provisions of this
Agreement, the parties acknowledge that if the Owner deposits a letter of credit with
the Municipality's Treasurer as the whole or part of the Highway No. 2 Security or
an increase thereof required by this Agreement, the Municipality's Treasurer, acting
reasonably may at any time draw on such letter of credit and deposit the cash
proceeds thereof in an account to the credit of the Municipality for disbursement
towards the reconstruction and installation of the Street Lighting System and
Sidewalks on Highway No.2.
(2) The parties acknowledge and agree that none of the provisions of this Agreement
including but not limited to this paragraph 3.4 are intended nor shall they be
considered to have the effect of exempting the Owner in whole or in part, or making
inapplicable to the Owner, or making inapplicable in respect of the development of
the Lands, a Development Charge that may be imposed by Development Charge By-
law which may be passed by the Municipality and none of them shall be used as an
justification for the basis of granting the owner a credit of any amount in determining
the Development Charge payable by the Owner under such By-law under the
Development Charges Act.
3.5 Not used
4G
Servicing Agreement
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3.6 Performance Guarantee Required
(1) Prior to submitting a Building Permit Application, the Owner shall deposit with the
Municipality cash or an irrevocable and unconditional letter of credit issued by a
bank listed in Schedules "I" or TI" of the Bank Act, acceptable to the Municipality's
Treasurer, which contains terms satisfactory to the Municipality's Treasurer in the
amount of the "Starting Estimated Costs" (as hereafter defined) (the "Initial
Security"). Until the approval by the Director of the "Works Costs Estimate" (as
hereafter defined) and the replacement by the Director of Schedule "J" hereto as
provided for in paragraph 5.9 of this Agreement, the amount of the Initial Security
shall be adjusted on each "Adjustment Date" (as hereafter defined) in accordance
with paragraph 3.6(3) of this Agreement. If an adjustment is made in the Initial
Security on an Adjustment Date with the result that the amount of the required
Initial Security is increased, forthwith thereafter the Owner shall deposit with the
Municipality cash or an irrevocable and unconditional letter of credit issued by a
bank listed in Schedules "I" or "TI" of the Bank Act, acceptable to the Municipality's
Treasurer, which contains terms satisfactory to the Municipality's Treasurer in the
amount of such required increase. If an adjustment is made in the Initial Security
on an Adjustment Date with the result that the Initial Security is to be reduced,
forthwith thereafter the Municipality shall return to the Owner a portion of the
Initial Security which is equal to the amount of such reduction.
Forthwith after the approval by the Director of the Works Cost Estimate and the
replacement by the Director of Schedule IT' hereto as is provided for in paragraph
5.9, the Owner shall deposit with the Municipality cash or an irrevocable and
unconditional letter of credit issued by a bank listed in Schedule "I" or "TI" of the
Bank Act acceptable to the Municipality's Treasurer and containing terms satisfactory
to the Municipality's Treasurer in an amount equal to the amount of the
Performance Guarantee, provided that the Owner shall be given credit for the
amount of the Initial Security then on deposit with the Municipality in the
determination of the amount of cash or the amount of the unconditional and
irrevocable letter of credit which the Owner is required to deposit with the
Municipality as the Performance Guarantee. On the replacement by the Director of
Schedule "J" hereto as provided for in paragraph 5.9 of this Agreement the Initial
Security or as much of it as is equal to the amount of the Performance Guarantee
which is required to be deposited with the Municipality by this Agreement shall be
deemed to be deposited by the Owner with the Municipality on account of the
Performance Guarantee.
47
Servicing Agreement
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If the amount of the Performance Guarantee required to be deposited with the
Municipality is less than the amount of the Initial Security then on deposit with the
Municipality on the replacement by the Director of Schedule "J" as aforesaid,
forthwith after such replacement the amount which is equal to the portion of the
Initial Security which is not required to be deposited with the Municipality as the
Performance Guarantee shall be refunded by the Municipality to the Owner.
(2) The deposit required as the Performance Guarantee pursuant to paragraph 3.6(1)
shall be in the amount determined by the Director to be the amount required to
secure to the Municipality the performance by the Owner of its covenants contained
in this Agreement to construct and install the Works and the performance of the
Owner's obligations under paragraph 5.13(2). Without limiting the generality of the
foregoing, in making his determination, the Director may have regard for the "Works
Cost Estimate" or the "Revised Work Cost Estimate" (both terms as hereafter
defined) whichever is applicable, for the construction and installation of the Works
which either are the subject of an Authorization to Commence Works or for the
issuance of which an Authorization to Commence Works application has been made
by the Owner. If from time to time following the issuance of any Authorization to
Commence Works the Director is of the opinion that the amount of the Performance
Guarantee should be increased in order to protect the Municipality's interests under
this Agreement, forthwith after the Director gives ~ritten notice to the Owner
requiring an increase in the amount of the Performance Guarantee, the Owner shall
deposit with the Municipality cash or an unconditional and irrevocable letter of credit
in such amount issued by a bank listed in Schedule "I" or "II" of the Bank Act that
is acceptable to the Municipality's Treasurer and containing terms satisfactory to the
Municipality's Treasurer. (The cash deposit(s) or letter(s) of credit which is (are) to
be deposited by the Owner pursuant to this paragraph 3.6 and other provisions of this
Agreement are called the "Performance Guarantee".) In the event that the Owner
does not increase the amount of the Performance Guarantee for a period of thirty
(30) days following the giving of written notice by the Director to the Owner
requiring an increase in the amount of the Performance Guarantee, (1) all
Authorizations to Commence Work that have been issued shall terminate, and (2)
the Owner shall not apply for or require the issuance of any permit for the
construction of buildings on any part of the Lands pursuant to the Building Code
Act. Without derogating from the other provisions of this Agreement, the Parties
acknowledge that if the Owner deposits a letter of credit with the Municipality's
Treasurer as the whole or part of the Performance Guarantee or an increase thereof
required by this Agreement, the Municipality's Treasurer, acting reasonably, may at
any time draw on such letter of credit and deposit the cash proceeds thereof in an
48
Servicing Agreement
Page 20
account to the credit of Municipality for disbursement in accordance with this
Agreement.
(3) Until submission by the Owner to and approval by the Director of the Works Costs
Estimate the parties acknowledge and agree that the estimated cost of construction
and installation of the Works (the "Starting Estimated Cost") is two hundred and
ninety-five thousand, four hundred and forty-eight dollars ($295,448.00). The basis
of the calculation of the Starting Estimated Cost is set out in Schedule "J-l". The
Starting Estimated Cost shall be adjusted on the dates (the "Adjustment Date")
specified in accordance with the Engineering News Record Building Cost Index
(Ontario Series)". (The Starting Estimated Cost as so adjusted from time to time is
called in this Agreement, the "Adjusted Starting Estimated Cost"). The first
Adjustment Date which the Adjusted Starting Estimated Cost shall be determined
is the Adjustment Date which immediately follows the day as of which this
Agreement is made.
(4) Notwithstanding the other provisions of this paragraph 3.6, if the Owner enters into
a subdivision agreement(s) with the Municipality pursuant to the provisions of
Sections 51 or 53 of the Planning Act, as the case may be, which agreement contain
the provisions of this Agreement in respect of the deposit of the Performance
Guarantee and the Maintenance Guarantee satisfactory to the Municipality's
Solicitor, then upon registration of such subdivision agreement(s) against title to the
Lands in priority to all other interests except for the Permitted Encumbrances, then
the Municipality's Treasurer shall return to the Owner the Initial Security as it may
be adjusted from time to time pursuant to paragraph 3.6(3) less the amount of the
sum of the Highway No. 2 Contribution, provided that nothing contained in this
paragraph 3.6(4) shall derogate from the provisions of paragraph 4.6 of this
Agreement.
3.7 Use of Performance Guarantee
From time to time the Municipality may appropriate the whole or anyone or more
portions of the Performance Guarantee up to an amount(s) determined by the Director,
which in aggregate shall not exceed the amount(s) which in the opinion of the Director are
required to remedy the Owner's breach(es) or default(s) of or under the provisions of this
Agreement. Forthwith after making each such appropriation, the Director shall give the
Owner written notice thereof and the Owner shall forthwith reinstate the Performance
Guarantee to the full amount(s) required by this Agreement.
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3.8 Indemnification of Municipality
(1) The Owner shall defend, indemnify and save the Municipality harmless from and
against all actions, claims, liabilities, losses, damages and expenses including
reasonable legal fees which arise by reason of or are caused in whole or in part by
the making and/or the implementation of this Agreement, or the design, construction
and installation, supervision of construction and installation, inspection, and/or
maintenance of the Works by the Owner, its employees, contractors, suppliers of
services or materials, the Owner's Engineer, the Owner's Engineer's employees, and
the Owner's licensees.
(2) For greater certainty, the making of this Agreement is not intended to and shall not
have the effect of requiring the Municipality to do or refrain from doing any act or
making any recommendation necessary for the Owner to achieve approval of the
final Plan of Subdivision of the Lands and its registration against the title to the
Lands.
3.9 Insurance
The Owner shall obtain and maintain the insurance and deposit the proof thereof as
required by Schedule "K" of this Agreement in accordance with Schedule "K" of this
Agreement.
3.10 Maintenance Guarantee Required
(1) Prom the date of issuance of an Authorization to Commence Works until the date
of issuance of a Certificate of Acceptance of the Works or particular component(s)
of the Works, the Owner agrees with the Municipality to promptly correct, remedy,
repair or replace any portion or component of the Works in question that the
Director determines to be defective or deficient having regard to the provisions of
this Agreement at the Owner's cost (the "Maintenance Guarantee"). The amount of
the Maintenance Guarantee shall be determined in accordance with paragraph
3.12(1) of this Agreement. The Owner shall be given written notice of any such
deficiency or defect by the Director forthwith after he identifies the same.
(2) The Maintenance Guarantee expires on the date of issuance of the Certificate of
Acceptance of the Works referred to in paragraph 3.10(1) which shall not be earlier
than the date of expiry of the relevant period of the Maintenance Guarantee for the
following Works as set out below:
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Servicing Agreement
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(a)
"Initial Works" (as hereafter defined): the later of (1) the date of expiry of
the period of two (2) years which commences on the date of issuance of the
Certificate of Completion for the Initial Works, and (2) the date of issuance
of a Certificate of Completion for the "Final Works" (as hereafter defined);
.
(b) "Final Works": the date of expiry of the period of one (1) year that
commences on the date on which the maintenance period for the Initial
Works specified in paragraph 3.1O(2)(a) expires;
(c) "Street Li~htin~ System" (as hereafter defined): the date of expiry of the
period of two (2) years which commences on the date of issuance of the
Certificate of Completion of the Street Lighting System; and
(d) "Stormwater Manaiement System" (as hereafter defined): the date of expiry
of the period of two (2) years which commences on the date of the issuance
of the Certificate of Completion of the Stormwater Management System
provided that such Certificate of Completion for the Stormwater Management
System shall not be issued prior to the issuance of the Certificate of
Completion for the Final Works.
3.11 Use of Maintenance Guarantee
From time to time, the Municipality may appropriate the whole or any part of the
Security for the Maintenance Guarantee if the Owner fails to pay any cost(s) payable by the
Owner to the Municipality under this Agreement. The amount( s) of such appropriation
shall not exceed the amount(s) which in the opinion of the Director are required to remedy
the Owner's breach(es) or default(s) as determined by the Director of correcting or
remedying a deficiency(s) or defect(s) in the Works or a portion or component thereof,
which is covered by the Maintenance Guarantee and is in question. Forthwith after the
Municipality makes any such appropriation, the Director shall give the Owner written notice
thereof. Forthwith, after the giving of such notice, the Owner shall restore the Security for
the Maintenance Guarantee to the full amount required by this Agreement.
3.12 Reduction and Release of Performance Guarantee
(1) Prior to the release of the Performance Guarantee, in the discretion of the Director,
the amount of the Performance Guarantee may be reduced, from time to time, to
reflect the progress of completion of the Works and other facilities and
improvements which are required to be constructed and installed by the Owner after
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taking into account any outstanding claims the satisfaction of which is provided for
in this Agreement. The maximum reduction that may be permitted to be made by
the Director is such that will leave on deposit with the Municipality's Treasurer as
the Performance Guarantee an amount equal to the sum of (1) the value of the
uncompleted Works and the other facilities and improvements as determined by the
Director having regard for the Works Cost Estimates then in force plus any amount
determined by the Director but not to exceed twenty (20%) percent of such value as
a completion allowance payable to the Municipality, and (2) as the Maintenance
Guarantee fifteen (15%) percent of the value of the completed Works, facilities and
services, also determined by the Director (the "Security for the Maintenance
Guarantee") after considering the material, if any, submitted to the Director by the
Owner's Engineer in support of an application for reduction of the Performance
Guarantee in respect of the Works that have been completed by the Owner as well
as the contract documents, sub-contracts and supply contracts pertaining to the
Works and the provisions of the Construction Lien Act.
(2) The Owner will not require the Municipality to release to the Owner any unused
portion of the Performance Guarantee until each of the following conditions is
satisfied:
(a) A Certificate of Completion has been issued for the Works for which the
Performance Guarantee was initially required to be deposited with the
Municipality.
(b) The Owner has deposited or has left on deposit with the Municipality the
Maintenance Guarantee applying to the Works for which the Performance
Guarantee initially was required to be deposited with the Municipality.
(c) The Director is satisfied that in respect of the construction and installation of
the Works for which such Performance Guarantee was initially required to be
deposited with the Municipality, there are no outstanding claims relating to
such Works.
(d) The Municipality is satisfied that there are no outstanding claims relating to
the Works which the Municipality is required or may be permitted to pay
either under the provisions of the Construction Lien Act or otherwise.
(e) The Municipality is satisfied that the Owner is not in breach of any of its
covenants contained in this Agreement.
i'
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3.13 Reduction and Release of Maintenance Guarantee
The Owner agrees that the Municipality shall not be required to release to the
Owner the Security for the Maintenance Guarantee until each of the following conditions
are satisfied:
(a) A Certificate of Acceptance has been issued for the Works for which such
Maintenance Guarantee is required under this Agreement.
(b) The Municipality is satisfied that there are no outstanding claims relating to
such Works which the Municipality is required or may be permitted to pay
either under the provisions of the Construction Lien Act or otherwise.
(c) The Municipality is satisfied that the Owner is not in breach of any of its
covenants contained in this Agreement.
(d) Not used
(e) The Director has received the as-constructed drawings for such Works from
the Owner as well as the computer disks, if any have been prepared by the
Owner's Engineer.
3.14 Payment of Municipality's Costs
(1) The Owner shall reimburse the Municipality for all reasonable legal, planning,
engineering and other technical advice, and administrative expenses actually incurred
for the preparation and registration of this Agreement and the reasonable cost of all
legal services contemplated by the terms of this Agreement, which include the review
of the Performance Guarantee, the review of the Security for the Maintenance
Guarantee and the preparation of a Certificate(s) of Release, provided that services
have actually been performed for the Municipality.
(2) The Owner shall pay to the Municipality Engineering and Inspection fees in
accordance with the provisions of Schedule fiR".
(3) After giving reasonable notice to the Municipality, the Owner may inspect, during
regular business hours, such accounts, invoices, time records and other documents
and calculations of charges for which the Municipality is requiring reimbursement
pursuant to paragraph 3.14(1).
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3.15 Unpaid Monies
Except as otherwise provided in this Agreement, the due date of any money payable
under it, unless a different due date is specified in this Agreement, shall be thirty (30) days
after the date of the giving of the written invoice to the Owner. Interest shall be calculated
and be paid by the Owner to the Municipality on all sums of money of which the Owner is
in default at the same rate, and in the same manner, and at the same time as is the case
with Municipality taxes which are in arrears at the date on which the default in question
commences.
3.16 Not used
ARTICLE 4. PLANNING
4.1 Not Used
4.2 Landscapin2 Plan and Landsca,pin2 Requirements
(1) Prior to the issuance of any Authorization to Commence Works, the Owner shall
obtain the written approval of the Director of Planning and the Director of Public
Works of the "Landscaping Plan" (as hereafter defined).
(2) Prior to submitting an application for a building permit for the Phase I Development
of the Lands or a portion thereof shown on the plan contained in Schedule "B"
hereto, the Owner shall retain a qualified landscape architect acceptable to the
Director of Planning and the Director of Public Works. The landscape architect shall
prepare a draft landscaping plan showing, amongst other things required by each of
the Director of Community Services, the Director of Planning and Development, and
the Director of Public Works, boulevard road areas and vegetation, trees to be
planted thereon and fencing and screen planting as required by paragraph 4.2(4).
The draft landscaping plan shall conform with and implement the Municipality's
landscaping design criteria, as amended from time to time, the approved Engineering
Drawings and the other provisions of this Agreement. When the draft landscaping
plan has been settled to the satisfaction of the aforesaid Directors and approved by
them, it is the "Landscaping Plan" for the purposes of this Agreement.
(3) Not used
(4) The Owner agrees at its cost to satisfy the following requirements:
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Servicing Agreement
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(a) all lots in Urban Areas ,are to be sodded and all lots in Rural Areas are to be
sodded or seeded, as may be required by the Director of Planning, within one
(1) year of occupancy of the building;
(b) Not used.
( c) all trees shall be a minimum of three point five (3.5) m in height and six (6)
em in calliper, staked and bagged;
(d) screen planting and fencing shall be provided between residential uses and
other uses in accordance with the Municipality's landscaping design criteria
and the relevant Landscaping Plan;
(e) fencing shall have a minimum height of one point eight (1.8) metres. Chain-
link fencing is not permitted except in areas abutting walkways, schools and
parks and then only in accordance with the Municipality's landscaping design
criteria and the relevant Landscaping Plan; and
(f) where wood fencing is proposed, it must be constructed either of pressure
treated wood or wood of equivalent longevity in the opinion of the Director
of Planning.
(5) The Owner agrees, at its expense, to provide and install trees, vegetation and fencing
and to satisfy the other requirements of the Landscaping Plan expeditiously during
the construction on the Lands. Any default by the Owner in satisfying any of the
requirements of paragraph 4.2 may be remedied or corrected by the Municipality at
the Owner's cost. Without limiting the Municipality's rights under any other
provision of this Agreement, the Owner acknowledges and agrees with the
Municipality that the Municipality may appropriate a portion of the Performance
Guarantee to indemnify the Municipality in respect of the cost of remedying or
correcting any such default of the Owner at any time when deemed necessary by the
Director of Planning. On each occasion, forthwith, after the Director of Planning
gives the Owner written notice of the amount so appropriated, the Owner shall
restore the Performance Guarantee to the amount required by this Agreement.
4.3 Use of Lands
The Lands shall not be used for any purpose other than the purposes permitted by
the Municipality's By-law 84-63, as amended from time to time.
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4.4 Not used
4.5 Lands Requirinl: Site Plan
The Owner shall not make or cause or suffer any person(s) to make an application
for a building permit in respect of the Lands or any portion thereof until the Owner has
entered into a Site Plan Agreement with the Municipality respecting the development of
such lot(s) or block(s) under Section 41 of the Planning Act, provided that any application
for a building permit shall comply in all respects with the terms of the said Site Plan
Agreement and all applicable laws.
4.6 Requirements for Buildinl: Permits
The execution of this Agreement by the Municipality and the issuance of any
Certificate of Acceptance of Works, do not constitute a representation or covenant by the
Municipality to any person, nor shall be taken to give any assurance to the Owner or to any
other person that building permits for buildings proposed to be constructed on any portion
of the Lands when applied for, will be issued. Without limiting the generality of the
foregoing, the Owner will not apply for or cause or permit an application to be made by any
person for a building permit for a building proposed to be constructed on any of the Lands,
made until the following requirements are satisfied:
(a) all easements required to be transferred by this Agreement to the Municipality, the
Region of Durham or the Clarington Rydro- Electric Commission, and all easements
required to be transferred for the purpose of Utilities and Services referred to in
Schedule "R", and all easements required to be transferred or reserved for the
purpose of drainage or access to the lot(s) or block(s) in respect of which an
application for a building permit(s) is made, have been transferred to or reserved by
the appropriate person as required by this Agreement;
(b) all the roads which are required to be constructed to provide access to the proposed
building in accordance with this Agreement, have been constructed at least to the
completed base course of asphalt, and the Director has given the Owner his written
approval of them as being sufficient to provide in his opinion adequate access to the
proposed building(s) or a Performance Guarantee for such roads has been deposited
with the Director, satisfactory to the Director;
(c) all of the Works required to be constructed and installed under road(s) referred to
in paragraph 4.6(b) have been constructed and installed to the satisfaction of the
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Servicing Agreement
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Director or a Performance Guarantee for such works has been deposited with the
Director, satisfactory to the Director;
(d) all of the Utilities and Services required to be constructed and installed pursuant to
Schedule "Hit have been constructed and installed and have been accepted by the
Clarington Hydro-Electric Commission and/or the authority or company having
jurisdiction over such Utilities and Services. Alternatively, the Municipality has
received written confirmation from such Commission, authority or company, as the
case may be, that sufficient financial security(s) have been received by it (them) on
which it or they may draw to payor to reimburse itself (themselves) in respect of the
costs of the design, construction and installation of such Utilities and Services if the
Owner fails to construct and install them;
(e) Not used
(t) Not used
(g) Not used
(h) Not used
(i) the Owner has entered into a Site Plan Agreement under Section 41 of the Planning
Act with respect to the development of such lot(s) or block(s) in accordance with
paragraph 4.5 of this Agreement;
(j) the Performance Guarantee or the Security for the Maintenance Guarantee provided
for in this Agreement as applicable have been deposited with the Municipality and
are in good standing and all sums of money required to the Municipality by the
Owner pursuant to this Agreement have been paid;
(k) the applicant has submitted a Site Plan satisfactory to the Director and certified as
being correct by the Owner's Engineer which demonstrates to the satisfaction of the
Director that the final grades of the lot(s) or block(s) in respect of which the
application for a building permit(s) is made are appropriate for the building(s)
proposed to be constructed thereon, the grading of the lot(s) or block(s) in question
and the proposed access thereto conforms with the Grading and Drainage Plan
approved by the Director for the particular lot(s) or block(s) as well as with the
Municipality's Design Criteria and Standard Detail Drawings;
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(1) Not used
(m) (i)
the Owner has constructed access routes to the Lands in satisfaction of the
requirements of the Ontario Building Code;
(ii) the Owner has agreed with the Municipality that during construction of the
building pursuant to the building permits which have been applied for fire
access routes will be maintained continuously as required by the Ontario Fire
Code, storage of combustible waste will be maintained in accordance with the
Ontario Fire Code, and open burning will not occur contrary to the Ontario
Fire Code; and
(iii) the Owner has agreed with the Municipality to comply with the Ontario Fire
Code with respect to Combustible Waste and Open Burning;
(iv) Not used
(n) Not used
(0) the Owner has satisfied the requirement of paragraphs 2.4, 2.5 and 4.12 of this
Agreement.
4.7 Not used
4.8 Not used
4.9 Requirements for Sale of Lands
Without derogating from any other provision of this Agreement the Owner shall not
sell the Lands or anyone (1) or more portions of the Lands until each of the following
conditions is satisfied:
(a) the transfers of easements and transfers of lands referred to in paragraphs 2.4 and
2.5 have been registered in accordance with paragraph 2.6;
(b) where a building permit has not been issued in respect of the Lands or a portion(s)
thereof which is proposed to be sold, the Owner has obtained from the prospective
purchaser an enforceable covenant made directly with the Municipality by which such
purchaser agrees with the Municipality, that prior to the issuance of a building permit
55
Servicing Agreement
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for a building on the land in question, he will deliver to the Municipality, the
Clarington Hydro-Electric Commission, other authority and/or company, as the case
may be, any transfers of easements as in the Lands or such portiones) thereof which
are required for Municipality, Region of Durham and Utilities and Services or
drainage purposes, as determined by the Director, forthwith after written request by
the Director therefor is given to the Owner;
(c) the Owner has obtained from such prospective purchaser of the Lands or a portion(s)
thereof, a licence to permit the Owner and/or Municipality, to enter the Lands or
a portiones) thereof in question in order to perform the Owner's obligations under
this Agreement and to permit the Municipality to exercise its rights under this
Agreement to correct or remedy a default of the Owner in such performance;
(d) the Performance Guarantee, the Security for the Maintenance Guarantee and all
cash deposits or letters of credits required by this Agreement have been deposited
with the Municipality and all letters of credit deposited with the Municipality are in
good standing; and
(e) the Owner has included in the Agreement to purchase the Lands or portiones)
thereof which is entered into by the prospective purchaser(s) as the case may be, a
notice that the Lands are subject to the covenants and obligations set forth in this
Agreement, and without limiting the generality of the foregoing, are subject to the
provisions of Article 7 in respect of the obligations of subsequent owners.
4.10 Not used
4.11 Not used
4.12 Special Conditions
(1) During construction on the Lands the Owner shall maintain fire access routes to the
satisfaction of the Municipality's Fire Chief.
(2) In cases in which an Appropriate Authority determines that the well or private water
supply of any person is interfered with either as a result of the grading of,
construction on, or the development of the Lands or any portion of the Lands, or as
a result of the construction or installation of any of the Works, the Owner, at its cost,
either shall connect the affected person to the municipal water supply system or shall
provide a new well or private water system so that water supplied to the affected
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Servicing Agreement
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person shall be of quality and quantity at least equal to the quality and quantity of
water enjoyed by the affected person prior to the interference.
(3) The Owner shall comply with the provisions of Schedule "Q" and Schedule "V"
hereto, if any.
(4) Any deadends and/or open side of road(s) allowances as set out in the OPAs shall
be terminated in zero point three (0.3) metre reserve(s) which shall be transferred
to the Municipality. Paragraphs 2.5 and 2.6 apply in respect of such transfers with
all changes necessary being considered to have been made to them and give effect
to this paragraph 4.12(4).
(5) Without derogating from paragraph 4.12(2), in cases in which the Appropriate
Authority has determined that the well or private water supply of any person is
interfered with, the Owner shall at his expense either connect the affected party to
a municipal water supply system or a private system so that water supplied to the
affected party shall be of quality and quantity at least equal to the quality and
quantity of water enjoyed by the affected party prior to the interference.
ARTICLE 5. PUBLIC WORKS
5.1 Municipality Works Required
The Owner at the Owner's expense shall construct and install the facilities, services,
works, improvements and landscaping more particularly described in Schedule "G" hereto
(collectively in this Agreement are called the "Works"). From the date of issuance of the
Authorization to Commence Works until the date of issuance of a Certificate of Acceptance
of them the Owner shall be fully responsible for the construction and maintenance of the
Works including the cost thereof in accordance with the provisions of this Agreement. After
the issuance of a Certificate of Acceptance, the Works referred to in such Certificate shall
be the responsibility of the Municipality.
5.2 Utilities and Services Required
Either prior to or forthwith after the date of this Agreement, the Owner shall enter
into an Agreement(s) with the authorities or companies or company having jurisdiction in
respect of the Utilities and Services referred to in Schedule "R" in the area in which the said
Lands are located which provides for the matters referred to in Schedule "R".
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Servicing Agreement
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5.3 Owner's En~neer
(1) At all times until this Agreement is released, the Owner shall retain the Owner's
Engineer who shall perform the duties set out in Schedule "I". On the execution of
this Agreement and on each occasion on which a new Owner's Engineer is retained
by the Owner, forthwith after retaining the Owner's Engineer, the Owner shall give
the Director written notice of the name, address and telefax number of the Owner's
Engineer. No partnership, association of persons or corporation shall be retained as
the Owner's Engineer without the prior written approval of the Director. All notices
to be given to the Owner's Engineer are properly given if given by personal service,
by telephonic facsimile communication, or first class prepaid post addressed to the
Owner's Engineer at the address or telefax number provided to the Director pursuant
to this paragraph 5.3. Forthwith after the Director gives the Owner written notice
requiring it to do so, the Owner shall give the Director written notice advising him
whether or not the approved Owner's Engineer continues to be retained by the
Owner.
(2) If at any time following the execution of this Agreement until the day on which a
Certificate(s) of Acceptance has been issued for all of the Works in accordance with
this Agreement, the Owner's Engineer resigns, abandons his office or is terminated
by the Owner, the Owner shall give the Director written notice of that fact within
three (3) days from the date of the resignation, abandonment or termination, as the
case may be. Until such time as the Owner retains and notifies the Director of the
name and address of a new Owner's Engineer who is qualified to be approved by the
Director pursuant to this Agreement and who in fact is approved by the Director, the
Owner hereby authorizes the Director on the Owner's behalf and at the Owner's cost
to appoint a new Owner's Engineer, provided that (1) forthwith after appointing a
new Owner's Engineer, the Director shall give the Owner written notice of the name,
address and telefax number of the Owner's Engineer who is so appointed; (2) the
Owner shall not act to terminate the new Owner's Engineer except for cause, and
then only with the prior written approval of the Director; (3) the Director may
appropriate from the Performance Guarantee and the security for the Maintenance
Guarantee amounts necessary to pay the Owner's Engineer's reasonable fees and
disbursements; and (4) the Director may appoint as the new Owner's Engineer any
partnership, association of persons or corporation otherwise qualified under this
Agreement who or which previously may have resigned or abandoned the
performance of the services as the Owner's Engineer under this Agreement or who
or which may previously have been terminated by the Owner, whether or not for
cause. The provisions of paragraph 5.3(1) apply when a new Owner's Engineer is
58
Servicing Agreement
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appointed by the Director under this paragraph 5.3(2) with all necessary changes
thereto being considered to have been made to give effect to this paragraph 5.3(2).
5.4 Desien of Works
(1) The Owner covenants and agrees that the design of all the Works shall conform with
all applicable legislation and the Municipality's Design Criteria and Standard Detail
Drawings. In the event of any dispute as to such requirements or their
interpretation, the dispute shall be resolved by the Director whose decision shall be
final.
(2) The Owner shall provide and submit to the Director all necessary Engineering
Drawings and obtain all approvals for the construction and installation of the Works,
as required by this Agreement.
(3) Without derogating from the provisions of paragraphs 2.4 and 2.5 and Schedules "E"
and "F' of this Agreement, within forty-five (45) days of the Effective Date, the
Owner, at its expense, shall transfer to the Municipality any land or easements
considered necessary in the opinion of the Director to accommodate the construction,
installation and maintenance of the Works. For greater certainty, the Parties agree
that the provisions of paragraph 2.4 shall apply in respect of any such transfers of
easements with all necessary changes to being considered to have been made to give
effect to the intent of this paragraph 5.4(3). Each transfer of land shall be in fee
simple absolute, and free and clear of all encumbrances and restrictions save and
except for the Permitted Encumbrances. It shall be prepared by the Owner in
registerable form and be satisfactory to the Municipality's Solicitor. At the time of
delivery of each transfer of land to the Municipality, the Owner shall pay to the
Municipality in cash or by certified cheque an amount equal to any tax, fee or
charges payable at the time of or in respect of the registration of such transfer
against title to the lands to which it applies.
5.5 Enlineerine Drawines
(1) Prior to the issuance of any Authorization to Commence Works, the Owner shall
obtain the written approval of the Director of the original copy of all drawings of the
Works (the "Engineering Drawings"). If construction and installation of the Works
has not commenced within two (2) years from the date of approval of the
Engineering Drawings, the Engineering Drawings shall be resubmitted to the
Director for his reconsideration and approval after any revisions required by the
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Servicing Agreement
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Director have been made to them (the "Reapproved Engineering Drawings"). From
and after the approval by the Director of the Reapproved Engineering Drawings,
they shall be deemed to be the Engineering Drawings for the purpose of this
Agreement, and thereafter all Works shall be constructed and installed in accordance
with them. The Owner hereby irrevocably assigns to the Municipality without cost
to the Municipality the right to use and to reproduce the Engineering Drawings and
all reports that relate in whole or in part to the Works which have been prepared by
or for the Owner in connection with the performance of the Owner's obligations
under this Agreement. The Owner acknowledges that approval of the Engineering
Drawings or reports by the Director shall not relieve the Owner from its obligation
to satisfy all requirements of or made pursuant to this Agreement.
(2) Prior to the issuance of any Authorization to Commence Works, the Owner shall
provide the Director without cost to the Municipality with the Owner's Engineer's (1)
written acknowledgement that the Engineering Drawings and reports referred to in
paragraph 5.5(1) may be used and/or reproduced by the Municipality without cost
or prior approval or permission, (2) written permission for the Municipality's officers,
employees, agents, contractors and suppliers to use the specifications, data, drawings,
records and reports whether completed or in progress of completion in satisfaction
of the Owner's obligations under the provisions of Schedule "I" of this Agreement
without cost or prior approval or permission, and (3) written undertaking to deliver
to the Director the original copy of the Engineering Drawings forthwith after being
given written notice by the Director requiring the Owner's Engineer to do so,
whether or not the Owner's Engineer's fees and disbursements in respect of any of
them have been paid. Prior to each occasion on which a new Owner's Engineer is
retained by the Owner and approval of the Director is sought, the Owner shall
provide the Director with a similar written acknowledgement and written permission
of the new Owner's Engineer, provided that if the new Owner's Engineer is to be
retained by the Director on behalf of the Owner pursuant to paragraph 5.3(2), the
Director shall obtain from the prospective Owner's Engineer the aforesaid written
acknowledgement and permission. Forthwith after the Director gives the Owner's
Engineer written notice requiring them or it to do so, copies of the Engineering
Drawings, computer disks, specifications, data, drawings, records and reports referred
to in this paragraph 5.5(2) shall be provided to the Director without cost to the
Municipality.
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5.6 Approval of Gradin2 and Draina~e Plan
Prior to the issuance of any Authorization to Commence Works, the Owner shall
obtain the written approval of the Director of an appropriate Plan showing thereon the
existing drainage pattern on all lands adjacent to the Lands, and all proposed grading and
drainage Works for the said Lands, and indicating the direction of all surface drainage,
including water from adjacent lands originally flowing through, into or over the said Lands
to the municipal storm sewer system or any other outlet approved by the Director (the
"Grading and Drainage Plan"). The written approval of the Director of the Grading and
Drainage Plan shall be obtained prior to the commencement of construction or installation
of any of the Works on the Lands. If construction of such Works is not commenced within
two (2) years from the date of approval of the Grading and Drainage Plan, the Grading and
Drainage Plan shall be resubmitted to the Director for his reconsideration, and approval by
the Director after any revisions required by the Director have been made to it, (the
"Reapproved Grading and Drainage Plan"). From and after the approval by the Director
of the Reapproved Grading and Drainage Plan, it shall be deemed to be the Grading and
Drainage Plan for the purposes of this Agreement, and thereafter all Works shall be
constructed and installed in accordance with it.
5.7 Staein2 of Construction
Prior to the commencement of construction and installation of any of the "Works
required in connection with Phase I of the Development of the Lands", the Director, in his
discretion, may give written notice to the Owner requiring that the Owner prepare and
submit to him a Works staging plan (the "Staging Plan"). Forthwith, after the giving of such
notice, the Owner shall prepare and submit to the Director of Public Works and the
Director of Planning for their consideration and approval a draft Staging Plan for the
construction and installation of such Work. The Owner shall not proceed with the
construction and installation of any of such Works until the Staging Plan has been approved
by the Director of Public Works and the Director of Planning after any revisions required
by them have been made to the draft Staging Plan. Thereafter, the Owner shall proceed
to construct and install such Works only in accordance with such approved Staging Plan and
any amendment which may be approved thereafter by the Director of Planning and the
Director of Public Works.
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5.8 Approval of Schedule of Works
Prior to the issuance of any Authorization to Commence Work, the Owner shall
obtain the written approval of the Director of a draft schedule (the "Schedule of Works")
which sets out the time at which, and the sequence in which, the Owner proposes to
construct and install each of the Works, Utilities and Services which are required to be
constructed and installed by it in accordance with this Agreement. Notwithstanding the
foregoing provisions of this paragraph 5.8, in cases in which the construction and installation
of the Works is to be staged in accordance with the Staging Plan, prior to the date of
issuance of the Authorization to Commence Works for each stage provided in the Staging
Plan, the Owner shall obtain the written approval of the Director of a Schedule of Works
for such stage, and thereafter shall proceed to construct and install the Works, Utilities and
Services in such stage in compliance with the approved Schedule of Works, and any
amendment(s) thereto which may be approved by the Director.
5.9 Approval of Works Cost Estimates and Stal:e Cost Estimates
Prior to the issuance of any Authorization to Commence Works, the estimated cost
of construction and installation of the Works, (the "Works Cost Estimates"), shall be
submitted by the Owner to the Director for his consideration and if appropriate his
approval. Mter approval, the Works Cost Estimate shall be entered for the Owner and the
Municipality by the Director in Schedule "J" hereto whereupon it shall replace the content
of Schedule "J" for all of the purposes of this Agreement. If a Staging Plan has been
approved pursuant to paragraph 5.7, prior to the issuance of an Authorization to
Commence Works in that stage the Owner agrees that the estimated costs of construction
and installation of the Works for each stage in question, (the "Stage Cost Estimates"), shall
be submitted by the Owner to the Director for his consideration and if appropriate his
approval. Mer approval the Stage Cost Estimates shall be entered for the Owner and the
Municipality by the Director in Schedule "J".
5.10 Requirements for Authorization to Commence Works
(1) The Owner shall not commence the construction or installation of any of the Works
without the written permission of the Municipality, (the "Authorization to Commence
Works"). The Owner shall only commence the construction and installation of those
Works permitted by the Authorization to Commence Works. In addition to
satisfying all the other requirements of this Agreement in respect thereof, an
Authorization to Commence Works shall not be issued for any of the Works for
which the Authorization is sought until the following conditions have been satisfied:
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(a) Not used
(b) Not used
(c) Not used
(d) the Owner has paid to the Municipality any monies required by paragraphs
3.1, 3.2, 3.3 and 3.4 of this Agreement;
(e) the Owner has delivered the transfers of easements to the Municipality in
accordance with paragraph 2.4 of this Agreement;
(f) the Owner has delivered to the Municipality transfers of the lands and paid
the required cash in accordance with paragraphs 2.5, 2.6 and 4.12(4) of this
Agreement, and such transfers have been registered against the title to the
appropriate portions of the Lands;
(g) the Owner has delivered to the Municipality letters signed on behalf of the
authority authorities or companies having jurisdiction with respect to the
Utilities and Services that are referred to in Schedule "R" that satisfactory
Agreement(s) have been entered into by the Owner with them for the design,
construction, installation and services of the Utilities and Services as is
required by paragraph 5.2 of this Agreement;
(h) the Owner has retained the Owner's Engineer in compliance with paragraph
5.3(1), has provided the name, telefax number and address of the Owner's
Engineer to the Director in writing, has provided the Director with the written
acknowledgement and permission of the Owner's Engineer as required by
paragraph 5.5(2), and has provided the Director with the Owner's Engineer's
written undertaking that they or it will comply with the provisions of Schedule
"I" of this Agreement;
(i) the Owner has been given the written approval of the Director of the
Engineering Drawings as required by paragraph 5.5 of this Agreement;
G) Not used
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(k) the Owner has received written approvals of the Director of Planning and the
Director of Public Works of the Landscape Plan as required by paragraph 4.2
of this Agreement;
(1) the Owner has received the written approval of the Director of the Grading
and Drainage Plan required by paragraph 5.6 of this Agreement;
(m) the Owner has received the written approvals of the Director of Public Works
and the Director of Planning of the Staging Plan as provided in paragraph 5.7
of this Agreement;
(n) the Owner has received the written approval of the Director of the Schedule
of Works as required by paragraph 5.8 of this Agreement;
(0) the Owner has received the written approval of the Director to the Works
Cost Estimates or the Stage Cost Estimates as required by paragraph 5.9 of
this Agreement;
(p) the Owner has deposited with the Municipality the Performance Guarantee
required by paragraph 3.6 and other provisions of this Agreement and has
made all cash' payments to and deposited all letters of credit with the
Municipality as required by this Agreement;
(q) the Owner has deposited with the Municipality's Treasurer all policies of
insurance or proof thereof required by and in accordance with paragraph 3.9
and Schedule "K" of this Agreement;
(r) the Owner has paid all costs required to be paid to the Municipality by
paragraph 3.14 of this Agreement on or prior to the date of issuance of the
Authorization to Commence Works;
(s) the Owner has deposited with the Director where deemed necessary written
approval of all relevant approving agencies including the Ministry of the
Environment, the Ministry of Natural Resources, the Region and the Central
Lake Ontario Conservation Authority with respect to the Works;
(t) the Owner has deposited with the Director its written undertaking to provide
the Director without cost with a copy of the contract documents, names and
addresses of all contractors, sub-contractors and suppliers of services and
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materials, and copies of all sub-contracts and supply contracts relating to the
construction and installation of the Works for which the application for
Authorization to Commence Works is made, forthwith after written notice is
given by the Director to the Owner to provide any or all of the aforesaid
material; and
(u) the Owner has been given the written approvals of the Director of Planning
and Development, Director of Public Works and Director of Community
Services as required by paragraph 4.12 of this Agreement.
(2) Not used
5.11 Requirements for Commencement of Subsequent Sta1:es of Works
If the Director has approved a Staging Plan for the Lands, the Owner shall require
an Authorization to Commence Works for each stage defined in the Staging Plan.
5.12 Inspection and Stop Work
The Owner shall ensure that every contract that may be made by the Owner with any
contractor to construct or install any of the Works shall provide that employees or
representatives of the Municipality may, at any time, inspect the work of such contractor and
shall require the contractor to comply with stop work orders given by the Director pursuant
to this paragraph 5.12. The Director may give the Owner a written order to stop the
construction or installation of any of the Works that is being undertaken by giving written
notice either to the Owner or to the Owner's Engineer to that effect if in the Director's
opinion either (1) the Works are not being undertaken such that a completed construction
and installation of all the Works satisfactory to the Municipality in accordance with this
Agreement will result, or (2) the Performance Guarantee and the Security for the
Maintenance Guarantee required to be provided pursuant to this Agreement in respect of
the Works has not been deposited or is not maintained in good standing. The Owner shall
comply with the stop work order forthwith after it is given by the Director in accordance
with this paragraph 5.12 by requiring the Owner's contractor and sub-contractors who are
constructing and installing the Works or components thereof in question and are referenced
in the order to comply with it forthwith. A stop work order may be given to the Owner by
giving to its Owner's Engineer by personal service on the Owner's Engineer or any
representative of the Owner's Engineer, by prepaid first class post addressed to the Owner's
Engineer, or by telefax to the Owner's Engineer at the address and telefax number referred
to in paragraph 5.3(1) or 5.3(2), whichever is applicable.
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5.13 Construction in Accordance with En2ineerin2 Drawin2s
(1) The Works shall be constructed and installed in accordance with the Engineering
Drawings as approved by the Director. No deviation from the Engineering Drawings
is permitted unless such deviation is authorized in writing by the Director before it
is undertaken. All construction and installation of the Works, shall be undertaken
and carried out by the Owner or by the Owner's contractor, as the case may be, in
accordance with the regulations for construction set out in Schedule "L".
(2) The Owner shall keep the Municipality road surfaces and ditches clean of dirt, mud
and refuse until a Certificate of Acceptance of all Works contemplated in this
Agreement has been issued as provided for by this Agreement. If the Owner has not
performed its obligations under this paragraph 5.13(2), the Municipality may do so
and deduct the reasonable cost thereof from the Performance Guarantee. The
Owner shall restore the Performance Guarantee to the amount otherwise required
by this Agreement, forthwith after the Director gives the Owner written notice of the
amount of the deduction in question.
5.14 Sequence of Construction of Works
Following the issuance of an Authorization to Commence Works, the Owner shall
proceed in good faith to construct and install all of the Works referred to in the
Authorization to Commence Works continuously and in accordance with the timing and
sequence therefor set out in the Schedule of Works.
5.15 Completion Time for Construction of Works
Within two (2) years of the date of the issuance of an Authorization to Commence
Works, the Owner shall complete the construction and installation of all of the Works
authorized in such Authorization to Commence Works with the exception of the curbs,
sidewalks, final coat of asphalt, final lot grading, driveway approaches, sodding and tree
planting which may be completed later if done so in accordance with the provisions of the
Schedule of Works.
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5.16 Additional Work
Until the conclusion of the Maintenance Guarantee Period referable thereto, if in
the opinion of the Director, any incidental additional work is required to provide for the
adequate operatio~ functioning and maintenance of any of the Works, the Owner, at its
cost, shall construct and install such additional facilities and perform such additional work
as the Director may request from time to time by written notice given to the Owner.
5.17 Incomplete or Faulty Works and Liens
(1) Without derogating from the other provisions of this Agreement, if, in the opinion
of the Director, (1) the Owner is not constructing and installing or causing to be
constructed or installed any of the Works required by this Agreement so that it or
they will be completed within the time specified for such completion in the Schedule
of Works, or (2) the Works or any component(s) thereof are being improperly
constructed or installed, or (3) the Owner neglects or abandons the said Works or
any part of them before completion, or (4) unreasonable delay occurs in the
construction or installation of the Works, or (5) for any other reason the Works are
not being constructed or installed properly and promptly and in full compliance with
the provisions of this Agreement, or (6) the Owner neglects or refuses to reconstruct
or reinstall any of the Works or component(s) thereof which may be rejected by the
Director as being defective, deficient or unsuitable, or (7) the Owner otherwise
defaults in performance of this Agreement, then in any such case after first receiving
authorization to do so by the Municipality Council, the Director may give the Owner
notice in writing of his opinion respecting any such matter. Following the later to
occur of the expiry of ten (10) business days, excluding Saturdays and Sundays and
statutory holidays following the giving of such notice plus the expiry of any additional
period as may be specified in the notice given to the Owner by the Director, the
Municipality, at the cost and expense of the Owner, may engage a contractor,
supplier of services or materials and such workmen, and purchase such services,
supplies and/or services as in the opinion of the Director are required for the
completion of the construction and installation of the Works and all components
thereof and the performance of all covenants of the Owner relating to the Works as
provided by this Agreement. In cases of an emergency or urgency, or in order to
preserve the integrity of the Works or any component thereof as determined by the
Director in his absolute discretion, any deficiency(s) or defect(s) in the Works, and
any failure to complete the Works and all components thereof in accordance with
this Agreement may be corrected, remedied or completed by the Municipality its
contractors, suppliers and employees at the cost of the Owner without prior notice
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to the Owner, provided that forthwith after the Municipality so acts, the Director
shall give written notice to the Owner of his determination as aforesaid, describing
the action taken by the Director, and the cost of correcting or remedying the
deficiency or default in question or the cost of completing the Works and the
components thereof, as the case may be. For the purposes of this paragraph 5.17(1)
the cost of any work which the Municipality undertakes under this paragraph 5.17(1)
shall be determined by the Director in his absolute discretion. It is understood and
agreed by the Parties that the costs for which the Owner is responsible under this
paragraph 5.17(1) shall include a management fee payable to the Municipality either
of thirty (30%) percent of the contractor's charges to the Municipality (including any
charges for overhead and profit) or, if such work is undertaken by the Municipality,
thirty (30%) percent of all costs incurred by the Municipality to correct or remedy
the deficiencies or defect or to complete the Works and all components thereof as
the case may be. The Owner shall pay the Municipality an amount equal to the cost
of all Works and components thereof, and the cost of correcting or remedying all
deficiencies and defects referred to in this paragraph 5.17(1) which have been
incurred by the Municipality or are estimated in the Director's absolute discretion
to be likely to be incurred by the Municipality forthwith after the Director gives the
Owner written demand for payment of such cost. If the amount paid is based on the
Director's estimate as aforesaid, forthwith after actual costs are known the Director
shall give the Owner written notice thereof. If the actual costs are more than the
estimated costs, the Owner shall forthwith pay the Municipality an amount equal to
the difference between them. If the actual costs are less than the estimated costs,
the Municipality shall forthwith refund the difference between them to the Owner.
(2) In the event that (1) a claim for a lien in respect of the Works or any component
thereof is registered against the title to any land vested or which should have been
vested in the Municipality or is filed with the Municipality, or (2) the Municipality
receives written notice of a claim of an alleged beneficiary of a statutory trust under
the Construction Lien Act, such registration, filing or notice shall constitute a default
in performance by the Owner of this Agreement. In any such case, the Director may
notify the Owner in writing of such default. If the Owner fails to discharge the lien
or the claim as the case may be within ten (10) business days, excluding Saturdays,
Sundays and statutory holidays, after the giving of such notice plus any further period
of time as may be specified in the notice, then the Municipality in its absolute
discretion either may pay the full amount of the claim and costs into a Court of
competent jurisdiction, or may discharge the claim by paying the same. The
Municipality may draw on and appropriate the whole or any portion(s) of the
Performance Guarantee and the Security for the Maintenance Guarantee for the
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purpose of making payment under this paragraph 5.17(2). The Owner shall
indemnify the Municipality against the costs and expense incurred by the Municipality
in making a payment pursuant to this paragraph 5.17(2) forthwith after the Director
gives the Owner written notice requiring him to do so. In the event that the
Municipality draws on and appropriates any portion of the Performance Guarantee
or the Security for the Maintenance Guarantee for any of the aforesaid purposes,
forthwith after the Director gives written notice to the Owner requiring it to do so,
the Owner shall reinstate the Performance Guarantee and/or the Security for the
Maintenance Guarantee, as' the case may be, to the full amount( s) required under
the provisions of this Agreement.
5.18 Acknowledl:ement Respectin.: Emer.:ency etc. Repairs
The Owner acknowledges that if in cases of emergency or urgency or in order to
protect the integrity of the Works or any component thereof, the Director acts to correct,
remedy or repair any deficiency(s) or defect(s) in the Works, neither an entry on the Lands
or any portion of them nor any such action by the Director or any person authorized to
undertake the same by the Director shall be deemed to be an acceptance of any of the
Works by the Municipality, nor an assumption by the Municipality of any responsibility or
liability in connection therewith, or a release by the Municipality of the Owner from any of
its obligations under this Agreement.
5.19 Dama2e to Enstin.: Services
Forthwith after written demand therefor is given by the Director to the Owner, the
Owner shall pay to or to the direction of the Municipality, the cost of repairing any damage
to any property or services of the Municipality, the Region, or any utility authority or
company or (the "Damaged Services") including without limiting the generality of the
foregoing, any road(s), water, electrical, gas, telephone, cable television and sewer systems,
and the cost of relocating any Damaged Services, caused by or resulting from the
development of anyone (1) or more portions of the Lands, or the construction or
installation of any of the Works, provided that all such repairs and or relocation(s) are
completed to the satisfaction of the Director, the Region and the relevant utility authority
or company which owns or is responsible for the Works, property or services in question.
In addition, the Owner agrees with the Municipality, at the Owner's cost, to relocate any of
the Works constructed or installed pursuant to this Agreement which are located in
driveways or so close thereto as in the opinion of the Director will interfere with the use of
the driveway in question, forthwith after being given written notice by the Director requiring
the Owner to undertake such relocation.
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5.20 Not Used
5.21 Use of Works by Municipality
The Owner acknowledges and agrees that any of the Works may be used by the
Municipality and such other person(s) who is (are) authorized by the Municipality for any
of the purposes for which the Works are designed, without interference by the Owner, and
without the payment of any fee or compensation to the Owner, and for such purposes the
Municipality and other person(s) authorized by the Municipality may enter upon the
portion(s) of the Lands on which the Works are located.
5.22 Maintenance of Roads after Completion
(1) In addition to any other requirement of this Agreement that the Owner maintain the
Works, if any building(s) on the Lands is occupied, the Owner, at the Owner's cost,
shall maintain each road(s), which is required to be constructed and provides access
to such building(s), until a Certificate of Acceptance has been issued for such
road(s), and without limiting the generality of the foregoing, the Owner shall:
(a) maintain the road(s) at all times in a well drained, dust and mud free
condition, suitable for ordinary vehicular traffic, to the approval of the
Director;
(b) during the course of construction and installation of the Works, Utilities and
Services pursuant to this Agreement, provide and maintain safe and adequate
access to all occupied buildings; and
(c) erect a sign to the satisfaction of the Director to indicate that the road(s) are
"unassumed road(s)" which the Municipality is not required by law to repair
and maintain.
(2) The Municipality agrees to snowplough and sand all paved road(s) as set out in the
OP As and lying within the Lands, for and on behalf of the Owner until the
Certificate of Completion of the Pinal Works has been issued, provided that until the
date of issuance of the aforesaid Certificate of Completion, the Owner shall pay to
the Municipality one hundred (100%) percent of the costs of snowploughing and
sanding such road(s), as determined by the Director, from time to time, and forthwith
after being given written notice of such costs by the Director.
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(3) The Owner acknowledges and agrees that the undertaking or provision of repairs or
maintenance by the Municipality under paragraphs 5.18, 5.19 or 5.22(2) in respect of
road(s), is not intended nor shall it in any way constitute or be taken to constitute
the approval or assumption by the Municipality of the road(s) in question. The
road(s) shall not be deemed to have been assumed until both a Certificate of
Acceptance has been issued, and a By-law has been passed by Municipality Council
dedicating the road(s) as public highway(s) and assuming it for the purpose of
liability to repair and maintain it as provided by the Municipal Act, and such By-law
has been registered in the Land Registry Office.
5.23 Requirements for Certificate of Completion
The Owner acknowledges and agrees that the construction and installation of any of
the Works authorized in an Authorization to Commence Works shall not be deemed to be
completed for the purposes of this Agreement until the Director has provided the Owner
with written certificate that such is the case (the "Certificate of Completion"). In addition
to satisfying the other requirements of this Agreement respecting its issuance, a Certificate
of Completion shall not be issued until such of the Works authorized by the Authorization
to Commence Works for which a Certificate of Completion is required, have been inspected
by the Director, and he is satisfied such Works have been constructed and installed in
accordance with the Engineering Drawings and has received all certificates and
confirmations from the Owner's Engineer as provided for in this Agreement.
5.24 Requirements for Certificate of Acceptance
The Owner acknowledges and agrees that none of the Works covered by a Certificate
of Completion shall be accepted, nor deemed to be accepted for the purpose of this
Agreement until the Director has provided the Owner with written certificate that the
Works in question have been accepted ("the Certificate of Acceptance)". If the
requirements of this Agreement respecting the issuance of a Certificate of Acceptance of
the Initial Works, the Stormwater Management System and/or the Street Lighting System
have been satisfied, and without limiting the generality of the foregoing, if the Director is
of the opinion that the Works in question have been maintained in compliance with
paragraph 3.10 and all deficiencies and defects in such Works have been remedied and
corrected by the Owner on behalf of the Municipality, the Director shall provide the Owner
with a Certificate of Acceptance of the relevant Works. If the requirements of this
Agreement respecting the issuance of a Certificate of Acceptance of the Final Works have
been satisfied, and without limiting the generality of the foregoing, if the Director is of the
opinion that the Works in question have been maintained in accordance with paragraph 3.10
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and all deficiencies and defects in such Works have been remedied and corrected by the
Owner, and the Director reports his opinion that such Works should be accepted by the
Municipality for the Municipality Council, Council may approve the report of the Director.
Following Council's approval of this report as aforesaid the Director may provide the Owner
with a Certificate of Acceptance of the Final Works.
5.25 Ownership of Works by Municipality
For greater certainty, the Owner acknowledges and agrees that the Municipality is
the Owner of all of the W orles covered by a Certificate of Acceptance. The Owner shall
have no right or claim thereto, other than as an owner of land abutting a highway in which
such Works are installed.
5.26 Requirements for Certificate of Release
Forthwith after the Owner complies with subparagraphs (a), (b) and (c) of this
paragraph 5.26, and the Works located thereon have been constructed, installed and
accepted by the issuance of a Certificate of Acceptance, the Municipality shall provide the
Owner with a written release (the "Certificate of Release") respecting the Lands. The
Certificate of Release shall be in a form suitable for registration or deposit in the proper
Land Registry Office. In addition to the Owner satisfying the other requirements of this
Agreement respecting the issuance of a Certificate of Release, the Certificate of Release
shall not be issued until:
(a) a Certificate(s) of Acceptance has been issued for all the Works;
(b) a registered Ontario Land Surveyor, acceptable to the Director and retained
by the Owner at the Owner's expense has provided the Municipality with
written confirmation that at a date not earlier than the date of issuance of the
Certificate of Completion of the Final Works, he has found, placed or
replaced all standard iron bars shown on the deposited reference plans of
portions of the Lands as required by the provisions of Schedules "E" and "F"
and has found, placed or replaced all survey monuments at all block comers,
the end of all curves, other than corner roundings, and all points of change
in direction or road(s) on such Plan; and
(c) Municipality Council has by resolution, acknowledged that the Owner has
satisfied all of the provisions of this Agreement.
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From the date of its issuance, a Certificate of Release shall operate as a discharge of the
Owner in respect of the Lands or the portion thereof which are described therein of the
obligations of the Owner under this Agreement with the exception of (1) the Owner's
obligation respecting drainage as provided in this Agreement; and (2) the Owner's covenant
to comply with the requirements of this Agreement in respect of applications for building
permits on the Lands.
5.27 Not Used
5.28 Cost of Works Referred to in Schedule "G"
The Owner acknowledges and agrees that it will pay the total cost of the Works
referred to in Schedule fiG" hereto. The Owner will not seek any credit or rebate for or of
any part of the total cost of the Works by reason of any of them being oversized to
accommodate drainage or traffic from lands outside the limits of the Lands, whether from
or in respect of a development charge imposed by the Development Charge By-law, or in
any other manner, or for any other reason.
ARTICLE 6 . COMPLIANCE WITH REGULATIONS
6.1 In exercising its rights and in performing its covenants under this Agreement,
the Owner shall comply with all regulations and laws of general application and all by-laws
of the Municipality and the Region. Without limiting the generality of the foregoing, at all
times the Owner shall comply and cause all contractors, sub-contractors and suppliers of
materials and services in connection with the construction, installation and maintenance of
the Works to comply with the provisions of the Occupational Health and Safety Act, and
the Workers' Compensation Act.
ARTICLE 7 . REPLICATION IN SUBDIVISION AGREEMENTS
7.1 The Owner hereby irrevocably consents to replication of this Agreement or
provision hereof that the Municipality's Solicitor, acting reasonably, considers to be
appropriate in a further agreement or agreements between the owner and the Municipality
as a condition of a consent to a transaction to sever the ownership of any portion of the
Lands or as a condition of approval of a draft plan of subdivision of the Lands or any
portion thereof pursuant to the Planning Act. The Owner will not refuse to execute such
an agreement because it replicates the whole or portions of this Agreement.
ARTICLE 8 . NOT USED
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ARTICLE 9 - EFFECTIVE DATE AND UNWINDING
9.1 Effective Date and Date of Final Approval
(a) The Effective Date for purposes of this Agreement shall be the day on which the
Owner applies for or causes or suffers any person to apply for a permit to construct
one or more buildings on any portion(s) of the Lands pursuant to the Building Code
Act which permit could be lawfully issued following the Date of Final Approval of
the Amending By-law or such other day as may be agreed to by the Parties hereto,
provided that the occurrence of the Effective Date in accordance with the foregoing
shall be expressly conditional upon the Amending By-law being approved, in force,
and/or in effect in accordance with this paragraph on the Effective Date. The Date
of Final Approval of the Amending By-law for the purposes of this Agreement is the
first day upon which all of the provisions of the Amending By-law have (actually and
notwithstanding any deeming provisions contained in the Planning Act, first come
into force and in effect, as a result of one of the following events occurring:
(i) Where the provisions of OP A No. 56 are approved and come into force and
effect pursuant to the Planning Act, substantially in the terms provided in
proposed OPA No. 56 when the by-law adopting the same was passed by the
Municipality, and, within the period of thirty (30) days following the day on
which such provisions are approved and come into force and effect, no
application to Court is made, the expiry of such thirty (30) day period;
(ii) Where no notice of appeal is filed by a person in respect of one or more of
the provisions of the Amending By-law pursuant to Subsection 34(19) of the
Planning Act, and no application to Court is made, the expiry of the sixty-five
(65) day period from the date of passing of the Amending By-law;
(iii) Subject to paragraph 9.1(a)(iv), where notice of appeal is filed by a person in
respect of one or more of the provisions of the Amending By-law pursuant to
Subsection 34(19) of the Planning Act, and no application to Court is made,
the expiry of the thirty (30) day period from the date on which the Order of
the Board dismissing the appeal or approving the amending by-law
substantially in the terms provided in the Amending By-law when the same
was passed by the Municipality;
(iv) Subject to paragraphs 9.1(a)(v) and (vi):
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1. where anyone or more provisions of OP A No. 56, have been referred
to the Ontario Municipal Board, andlor
2. where one or more notices of appeal have been filed in respect of any
one or more of the provisions of the Amending By-law, and
3. a notice from the Minister has been received by the Board, pursuant
to Subsection 17(17) or Subsection 34(28) of the Act, as the case may
be, with respect to a part or parts of anyone or more of the provisions
of OPA No. 56, andlor anyone or more provisions of the Amending
By-law in respect of which a notice(s) of appeal has been filed, and no
new application to Court has been made, and
4. no application to Court has been made, the expiry of the thirty (30)
day period from the day on which the Lieutenant Governor in Council
has confirmed the Board's Decision approving OPA No. 56
substantially in the terms provided in proposed OPA No. 56 when the
by-law adopting the same was passed by the Municipality and lor has
confirmed the Board's Decision dismissing the appeal(s) in respect of
the provision or provisions of the Amending By-law, provided that in
the event that an Order of the Board is entered after the date on
which the Lieutenant Governor in Council has confirmed the Board's
Decision as aforesaid, the thirty (30) day period referred to in this
paragraph shall commence from the day on which the Board's Order
is entered;
(v) Subject to paragraph 9.1(a)(vi), where, prior to the expiry of the thirty (30)
day period referred to in paragraphs 9.1(a)(i), (iii) and (iv) , or the sixty-five
(65) day period referred to in paragraph 9.1(a)(ii), whichever is applicable, an
application to Court is made in which the validity of:
1. a part of a provision or a provision, or
2. the proceedings before Council or a Committee of Council respecting
a part of a provision or a provision or
3. the approval of a part of a provision or provision, or
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Page 50
4. the proceedings before the Board respecting a part of a provision or
a provision, or
5. a Decision or Order of the Board respecting a part of a provision or
a provision, or
6. the Order of the Lieutenant Governor in Council or the proceedings
before the Lieutenant Governor in Council respecting a part of a
provision or a provision, is called into question, with respect to the part
of the provision or the provision, either,
(i) the Final Disposition of such application to Court, if the result
is that the part of the provision or the provision is approved,
remains, or comes into force and effect, or
(ii) in the event that the Court remits the matter back to Council,
the Board, or the Lieutenant Governor in Council, as the case
may be, the Final Disposition of such matter;
(vi) Where, immediately prior to the occurrence of any of the hereinbefore-stated
events, an application has been filed with the Board for any relief under
Section 42 of the Ontario Municipal Board Act or the Board has on or before
such occurrence set aside a Decision and/or Order of the Board respecting
a part of a provision or a provision of the Amending By-law, the Final
Disposition of such application to the Board and/or the final disposition by
the Board of the rehearing, if such is directed by the Board, provided that in
the cases referred to in this paragraph, paragraphs 9.1(a)(i), (iii) and (v) shall
apply with all necessary changes thereto to give effect to this paragraph being
considered to have been made.
(b) For the purposes of this Agreement, the term:
(i) "application to Court" means an application for leave to appeal,
an appeal, an application for judicial review, an application to
quash pursuant to the Municipal Act, and includes an appeal(s)
from a Decision or Order in respect of any of these which are
made to a Court;
(ii) "Final Disposition" means any of the following events:
Servicing Agreement
79
Page 51
1.
the entry of an Order of a Court which finally disposes
of an application to such Court, or
2.
where a provision of OPA No. 56 is remitted back to
Council, if no further application to Court is made, the
expiry of the thirty (30) day period following the date on
which such provision came into force and effect, or
3.
where a provision of the Amending By-law is remitted
back to Council, no notice of appeal is filed by a person
pursuant to Subsection 34(19) of the Planning Act, and
no application to Court is made, the expiry of the sixty-
five (65) day period from the date of passing of such
provision, or
4. where a provision of the Amending By-law is remitted
back to Council, no notice of appeal is filed by a person
pursuant to Subsection 34(19) of the Planning Act, and
no application to Court is made, subject to paragraphs
9.1(a)(iv), (v) and (vi), the expiry of the thirty (30)
period from the date on which the Order of the Board
dismissing the appeal is entered or,
5. where paragraph 9.1(a)(iv) applies, subject to paragraph
9.1(a)(v), the expiry of the thirty (30) day period referred
to in paragraph 9.1(a)(v), or
6. the entry of an Order of the Board which follows a re-
hearing by the Board pursuant to an Order of the Board
finally disposing of a part of a provision or a provision
of the Amending By-law.
9.2 Permitted Amendments to the Amendinl: By-law
(a) Subject to paragraph 9.2(b) hereof, without fettering in any way Council in the
exercise of any of its discretionary powers, and notwithstanding any other provisions
of this Agreement, the Parties agree that if, prior to the first to occur of the Final
Disposition of the Amending By-law and the Unwinding Date (as hereinafter
defined), any modification(s) or amendment(s) to the Amending By-law are made
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Servicing Agreement
Page 52
by the Municipality such modification(s) and/or amendments which are made or are
directed to be made pursuant to the Planning Act, shall be deemed to be included
within the meaning of the term "Amending By-law" and to be part of the Amending
By-law for all of the purposes of this Agreement and are hereinafter referred to as
the "Permitted Amendments", provided that either:
(i) such modification(s) and/or amendment(s) are only of technical significance
and effect; or
(ii) in the case only of modification(s) or amendment(s) made or passed before
the Final Disposition of the Amending By-law, prior to or within thirty (30)
days after the date on which such modification(s) and/or amendment(s) are
made or passed, the Owner shall notify the Municipality in writing that the
modification( s) or amendment( s) in question is ( are) acceptable to the Owner.
(b) In the event that in a case referred to in paragraph 9.2(a)(ii) hereof, the necessary
notice is not given by the Owner within the time specified in paragraph 9.2(a)(ii), the
modification(s) and/or amendment(s) shall not be deemed to be part of the
Amending By-law for the purposes of this Agreement.
(c) Subject to paragraph 9.2(a) hereof the Parties agree that they will support the
approval of the Amending By-law in any appeals, applications or proceedings before
the Board, the lieutenant Governor in Council or a Court.
9.3 Unwin dine of this Aereement
( a) The date of unwinding of this Agreement, should such occur (hereinafter referred to
as the "Unwinding Date"), shall be the earlier to occur of the date of Final
Disposition of the Amending By-law, and the date of expiry of the sixty (60) day
period specified in a Notice of Termination, which is given pursuant to sub-
paragraphs 9.3(b), (c), or (e) hereof.
(b) On the occurrence of a Final Disposition of the Amending By-law, which does not
result in the coming into force and effect of each provision of the Amending By-law
without modification to or amendment of any of them, sixty (60) days written Notice
of Termination may be given by either the Municipality, or the Owner to the other.
Unless the Parties hereto otherwise agree, the Unwinding Date shall occur on the
expiry of the sixty (60) day period specified in such Notice of Termination.
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Servicing Agreement
Page 53
(c) If as a result of being required to do so by the Final Disposition of the Amending
By-law, Council passes, or adopts a modification(s) or an amendment(s) to the
Amending By-law which is not one of the Permitted Amendments, then, at any time
within thirty (30) days from the date of the giving of notice of the passing or
adoption of such amendment(s) or modification(s) by the Municipality to the Owner,
sixty (60) days written Notice of Termination may be given by either the Municipality
or the Owner to the other. After passing or adopting one of the aforesaid
amendment(s) or modification(s) the Municipality forthwith shall give notice thereof
to the Owner. Unless the Parties hereto otherwise agree, the Unwinding Date shall
occur on the expiry of the sixty (60) day period specified in such Notice of
Termination. If a Notice of Termination is not given, in accordance with this
paragraph, the modification(s) or amendment(s) shall be deemed to be one of the
Permitted Amendments for the purposes of this Agreement.
(d) On the occurrence of a Final Disposition of the Amending By-law which results in
the Amending By-law coming into force or effect with modification(s) or
amendment(s) thereto, other than a Permitted Amendment, then, sixty (60) days
written Notice of Termination may be given by either the Municipality or the Owner
to the other. Unless the Parties hereto otherwise agree, the Unwinding Date shall
occur on the expiry of the sixty (60) day period specified in such Notice of
Termination. If a Notice of Termination is not given in accordance with this
paragraph, the modification(s) or amendment(s) shall be deemed to be one of the
Permitted Amendments for the purposes of this Agreement.
(e) If the Final Disposition of the Amending By-law has not occurred on or before, June
30, 1995, then sixty (60) days written Notice of Termination may be given by either
Party hereto to the other. Unless on or prior to the expiry of the sixty (60) day period
specified in such Notice of Termination, either the Final Disposition of the
Amending By-law occurs, or the Parties hereto otherwise agree, the Unwinding Date
shall occur on the expiry of such sixty (60) day period.
(f) On or after the occurrence of the Unwinding Date, the Owner" at the Owner's
expense, may expunge registration of this Agreement by appropriate means according
to the requirements of the registry system pertaining to the affected property and the
Municipality shall co-operate with all requests of the Owner, acting reasonably, in
such respect, including the execution of releases and quit claims in suitable form for
registration.
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Servicing Agreement
Page 54
(g) Without fettering Council, in any way, in the exercise of its discretionary powers, on
or after the occurrence of the Unwinding Date, Council may rescind the Amending
By-law with the object of restoring the Official Plan and Zoning By-law provisions
as they stood on the day immediately prior to the date as of which this Agreement
is made. In respect of any rescinding by-law which is passed pursuant to this
paragraph either on or after the occurrence of the Unwinding Date, the Owner will
not object of the passing, approval, or coming into force and effect of such rescinding
by-Iaw(s).
(h) On the occurrence of the Unwinding Date, the Municipality's Treasurer shall return
any Performance Guarantee(s) by the Owner, and in the Municipality's possession.
ARTICLE 10 . DEVELOPMENT OF THE LANDS SUBSEOUENT TO PHASE I
10.1 Subsequent Phases
The Owner acknowledges and agrees that if the Owner shall develop the Lands or
a portion thereof other than Phase I of the Development of the Lands then the provisions
of this Agreement shall apply in respect of the design, construction and installation of the
Works necessary to facilitate the proposed development or developments (the "Proposed
Development") with all necessary changes thereto being considered to have been made to
give effect to the intention of this paragraph 10.1 provided that in each such case:
(a) "Amending By-law" shall be deemed to mean an amendment to the
Municipality's Zoning By-law (By-law No. 84-63 as amended) to permit the
construction of the Proposed Development;
(b) "Works" shall be deemed to mean the facilities, services, works, improvements
and landscaping more particularly described in Schedule "G" hereto as are
necessary for the orderly and proper development of the Lands having regard
to the Proposed Development and uses of adjacent lands. The Works shall
be constructed and installed at the cost of the Owner;
(c) "Transferred Roads" shall be deemed to mean those portions of roads within
the Lands and as shown on the plan attached as Schedule "B" which are
required for access to the Proposed Development or necessary for the orderly
development of that portion of the Lands comprising the Proposed
Development or abut that portion of the Lands comprising the Proposed
Development; and
83
Servicing Agreement
Page 55
(d) If required by the Director, the Owner shall enter into a further servicing
agreement or subdivision agreement in priority to all other interests in the
proposed Transferred Roads except for the Permitted Encumbrances as the
Director considers to be necessary to implement the intention of this
paragraph 10.1 which shall be registered against title to the relevant land prior
to applying for a building permit or permits for any portion of the Proposed
Development.
ARTICLE 11. ASSUMPTION OF OBLIGATIONS
11.1 The Owner covenants and agrees with the Municipality that it shall be a
general and indispensable condition of any sale, mortgage or charge or a lease for a term
including entitlement to renewal of 21 years or more either of the whole or anyone or more
portions of the Lands or any assignment or sublease of such a leasable interest with an
unexpired term including entitlement to renewal of 21 years or more of the whole or any
one or more portions of the Lands, that each purchaser, mortgagee, chargee, lessee, assignee
or sublessee, as the case may be, has entered into an agreement with the Municipality
assuming each of the Owner's obligations and covenants provided for in this Agreement,
save and except those provisions that are included in a subdivision agreement made under
Sections 51 or 53 of the Planning Act registered against the title to the Lands which the
Municipality's Solicitor acting reasonably considers to be enforceable against successors in
title pursuant to the provisions of the Planning Act. Where a mortgage, charge, lease,
assignment of lease or sublease of a leasehold interest is given by way of security for
financing then such mortgagee, chargee, lessee, assignee or sublessee thereunder shall not
be bound to assume such of the Owner's obligations and covenants unless and until such
mortgagee, chargee, lessee, assignee or sublessee takes possession or control of the property
pursuant to such security. If the Lands are governed by the Land Titles Act, then concurrent
with the delivery of this Agreement by the Owner to the Municipality, the Owner shall
deliver to the Municipality an application duly executed by the Owner in registrable form
and containing such terms as the Municipality's Solicitor requires acting reasonably made
pursuant to Section 118 of the Land Titles Act to restrict the transfer, charge or lease of the
Lands or any portion thereof without the written consent of the Municipality. If the Lands
are governed by the Registry Act, then upon written request made by the Municipality's
Solicitor, the Owner shall enter into a separate agreement with the Municipality to be
registered against title to the Lands containing the covenant of the Owner set out in this
paragraph 11.1 and such other terms of this Agreement as the Municipality's Solicitor acting
reasonably may require. The Owner shall neither request nor require such consent of the
Municipality or a release of such restriction and the Municipality shall not be required to
Servicing Agreement
84
Page 56
deliver such consent or release until the Owner has either (1) delivered to the Municipality
the Highway No.2 Security and the Initial Security or the Performance Guarantee, as the
case may be, or (2) paid the Highway No.2 Contribution and has either (i) obtained a
Certificate or Release or (ii) delivered the Initial Security or Performance Guarantee, as the
case may be.
ARTICLE 12 - TIME OF ESSENCE
Time is of the essence of this Agreement.
ARTICLE 13 - AUTHORI1Y TO MAKE AGREEMENT
The Owner acknowledges and agrees that the Municipality has authority to enter into
this Agreement, that every provision hereof is authorized by the law and is fully enforceable
by the Parties, and that this Agreement is made by the Municipality in reliance on the
acknowledgement and agreement of the Owner as aforesaid.
IN WITNESS WHEREOF the Parties hereto have hereunto set their hands and
seals the day and year first above written and the Parties hereto have hereunto affixed their
corporate seals by the hands of their proper officers duly authorized in that behalf.
SIGNED, SEALED AND
DELIVERED
In the presence of
)
)
)
)
)
)
)
)
)
)
)
)
)
) Name:
)f/ GLENN S.
)
)
)
THE CORPORATION OF THE
MUNICIPALITY OF CLARINGTON
WILLSON
Title:
PRESIDENT
Name:
Title:
Servicing Agreement
)
)
)
)
)
)
)
)
G'_ENN S. WILLSON
85
Page 57
Title:
PRESIDENT
Title:
Name:
86
SCHEDULE "A"
THIS SCHEDULE IS SCHEDULE "A" to the Agreement which has been
authorized and approved by By-law No. 94-21 of The Corporation of the Municipality of
Clarington, enacted and passed the 24th day of May, 1994.
LEGAL DESCRIPTION OF LANDS
All and singular that certain parcel of land and premises situate, lying and
being in the Municipality of Clarington, in the Regional Municipality of Durham being
composed of Part of Lots 15 and 16 in Concession 1 of the Geographic Township of
Darlington designated as:
Firstly:
Parts of Lot 16, Concession 1, former Town of Darlington, now part of the Town of
Newcastle, Regional Municipality of Durham being:
- Parts 1, 2 and 3, Plan 10R-411; and
Secondly:
Part of said Lot 16, Concession 1, Geographic Township of Darlington, now part of
the Town of Newcastle in the Regional Municipality of Durham, more particularly described
as follows:
COMMENCING where an iron pipe has been planted on the northern limit of the King's
Highway Number 2, as established according to Department of Highways Ontario Land Plan
Number PI680-16, distant North 88 degrees 48 minutes 30 seconds east, a distance of 193.9
feet from a point distant south 89 degrees 40 minutes East, a distance of 127.13 feet from
a point distant North 88 degrees 27 minutes East, a distance of 420.62 feet from a point
distant North 87 degrees 04 minutes 10 seconds east a distance of 77.55 feet from a point
in the western limit of said Lot 16, distant southerly thereon 549.38 feet from the north-
western angle of said Lot 18;
THENCE North 88 degrees 48 minutes 30 seconds East a distance of 25.96 feet;
THENCE North 17 degrees 30 minutes 30 seconds west, a distance of 165.87 feet;
THENCE North 89 degrees 36 minutes west a distance of 26.18 feet;
THENCE Southerly a distance of 166.63 feet to the POINT OF COMMENCEMENT.
87
Schedule "A"
-2-
The lands conveyed are shown in heavy outline on a Plan of Survey made by M.D. Brown,
Ontario Land Surveyor, dated March 19, 1965 and attached to Registered Instrument No.
N26048.
EXCEPTING THEREOUT that portion designated as Part 8 on a Plan deposited as Plan
R.D.26 (Department of HIghways Plan P-41, being the lands previously described in deed
no. 141078.
88
SCHEDULE "C"
THIS SCHEDULE IS SCHEDULE "e" to the Agreement which has been
authorized and approved by By-law No. 94-77 of The Corporation of the Municipality of
Clarington, enacted and passed the 24th day of May, 1994.
CHARGES AGAINST LANDS
(1) Municipal Taxes - nil
(2) Local Improvement Charges - nil
(3) Drainage Charges - nil
(4) Development Charges - nil
89
SCHEDULE "D"
THIS SCHEDULE IS SCHEDULE "D" to the Agreement which has been
authorized and approved by By-law No. 94-77 of The Corporation of the Municipality of
Clarington, enacted and passed the 24th day of May, 1994.
Not used
90
SCHEDULE "E"
THIS SCHEDULE IS SCHEDULE "E" to the Agreement which has been
authorized and approved by By-law No. 94-21 of The Corporation of the Municipality of
Qarington, enacted and passed the 24th day of May, 1994.
(1) Within forty-five (45) days of the Effective Date, (or with the written consent of the
Director, at some later time) the Owner shall deliver to the Municipality transfers
of easements as in the opinion of the Director are necessary to accommodate any
work provided for in the Engineering Drawings or Reapproved Engineering Drawings
which are located within the Lands.
(2) Easements for the rear yard catchbasins and storm sewers shall be perpetual in
duration.
(3) Without derogating from the other provisions of this Agreement, the Owner shall
transfer or cause to be transferred to the Municipality easements to accommodate
any work provided for in the approved Engineering Drawings or the Reapproved
Engineering Drawings in lands located beyond the limits of the Lands as may be
required by and to the satisfaction of the Director by notice given in writing to the
Owner. The Director shall determine the duration and terms of any such easements.
The transfers shall be prepared by the Owner at its cost, shall be free and clear of
all encumbrances and restrictions, shall contain other provisions satisfactory to the
Municipality's solicitor, shall be made for a nominal consideration, and shall be in
registrable form. Paragraphs 2.4 and 2.6 shall apply in respect of transfers with all
necessary changes to them being considered to have been made to give effect to the
intent of this paragraph (3).
(4) The Owner shall transfer to the Municipality any turning circle(s) and easements for
snow storage as in the opinion of the Director may be required in accordance with
the Municipality's Design Criteria and Standard Drawings and shall construct and
maintain such turning circles in accordance with the Municipality's Design Criteria
and Standard Drawings. Such temporary turning circles and easements for snow
storage shall be shown on a Reference Plan as a Part(s) and shall be held by the
Municipality until the extension of the road at which time the interest of the
Municipality in such Part(s) not necessary for the extension of the road shall be
released without charge to the owners of the abutting lots.
(5) Temporary turning circle easements shall be released to the Owner of the abutting
lots at such time as the temporary turning circle(s) is removed and the roadway
extended through for a nominal consideration.
91
Schedule "E"
-2-
(6) The Owner shall transfer or cause to be transferred to the Municipality any
easements for the disposal of storm water from the said Lands which are required
by the Director which are external to the said Lands at no expense to the
Municipality. The easements shall be transferred to the Municipality forthwith after
the Director gives the Owner written notice of his requirements and the reasons
therefore. Paragraphs 2.4 and 2.5 of this Agreement shall apply with all necessary
changes to them being considered to have been made to give effect to the extent of
this provision.
(7) Forthwith after approval of the Engineering Drawings or Reapproved Engineering
Drawings, as the case may be, by the Director the Owner shall cause to be prepared
and deposited in the Land Registry Office Reference Plans delineating the easements
required to be transferred to the Municipality pursuant to this Agreement.
92
SCHEDULE "F"
THIS SCHEDULE IS SCHEDULE "F" to the Agreement which has been
authorized and approved by By-law No. 94-77 of The Corporation of the Municipality of
Clarington, enacted and passed the 24th day of May, 1994.
LANDS TO BE TRANSFERRED TO Municipality AND/OR CASH TO BE PAID
IN LIEU THEREOF
(1) Dedication of Lands
(a) Within forty-five (45) days after the Effective Date the Owner shall deliver to
the Municipality in a form satisfactory to the Municipality, transfers in fee
simple absolute free and clear of encumbrances, except for the Permitted
Encumbrances, of those portions of roads within the Lands and shown as (i)
Street B from Highway No.2 north to Street E (the "Transferred Roads") and
any 0.3 metre reserves required to prevent public access from such roads onto
Street H or Street E as shown on the plan attached as Schedule "B".
(b) Within forty-five (45) days after the Effective Date, the Owner shall deliver
to the Municipality in a form satisfactory to the Municipality, transfers in fee
simple absolute free and clear of encumbrances, a 0.3 metre reserve(s) of any
portion of the Lands immediately abutting the roads lying within the Lands
and shown on the plan attached as Schedule "B" and required to be
transferred pursuant to subparagraph (a) of this paragraph.
(c) Forthwith after the Effective Date the Owner shall caused to be prepared and
deposited in the Land Registry Office Reference Plans in a form satisfactory
to and approved by the Director delineating the roads and the 0.3 reserves
required to be transferred in fee simple absolute to the Municipality pursuant
to this Agreement.
(2) Not Used
(Iii
~.' ~
SCHEDULE "G"
THIS SCHEDULE IS SCHEDULE "G" to the Agreement which has been
authorized and approved by By-law No. 94-77 of The Corporation of the Municipality of
Clarington, enacted and passed the 24th day of May, 1994.
WORKS REOUIRED
The Owner shall construct, install, supervise and maintain the following Works, including
all connections, alternations, adjustments and transitions required to suit existing systems or
lands in accordance with the Municipality's Design Criteria and Standard Drawings, and the
Engineering Drawings, all to the approval of the Director:
(1)(a) A storm sewer system for the removal of upstream storm water and storm water
originating within the said Lands, including storm sewer mains and connections,
manholes, service connections, catchbasins and rear yard catchbasins and leads, open
channels, storm outfalls and structures and any other appurtenances and oversizing
as may be required (the "Storm Sewer System").
(b) A stormwater management system consistent with the "Master Drainage Plan",
complete with overland flow routes, detention and retention facilities, quality control
devices, outlets, erosion and sedimentation control measures and any other necessary
facilities as required (the "Stormwater Management System").
(c) A road system in respect of the Transferred Roads providing for vehicular and
pedestrian traffic and access including the removal or installation of turning circles,
and the Works required within the road, including suitable subgrade, subbase and
base granular materials, subdrains, base and top stage curbs and gutters, base and
surface asphalt, traffic control and street name signs and sidewalks and all
streetscape components including street trees, boulevard topsoil and sodding, street
lighting, gravel driveway aprons, and where sidewalks exist, gravel driveway aprons
with paved surfaces between curb and sidewalk (the "Road System").
(d) A street lighting system which provides illumination of the Transferred Roads and
walkways to serve the said Lands including all connections, energy and maintenance
costs, appurtenant apparatus and equipment, in the locations as approved by the
Director (the "Street Lighting System").
(e) Related Works including grading, landscaping, fencing, noise attenuation measures,
walkways (including lighting) and other miscellaneous Works shown on the
Engineering Drawings and Grading and Drainage Plan (the "Related Works").
94
Schedule "G"
-2-
(f) Streetscaping as more particularly set out in Schedule "G-l".
PHASING OF THE WORKS
The Works shall be divided into the following stages, unless approved by the Director:
(2) INITIAL WORKS
Storm Sewer System including all appurtenances;
initial roadworks including subgrade, subbase and base granular materials, subdrains,
base curbs, base asphalt, traffic control and street name signs of the Road System;
and
grading.
noise attenuation fencing (collectively called the "Initial Works").
(3) STORMWATER MANAGEMENT SYSTEM
(4) STREET LIGHTING SYSTEM
(5) FINAL WORKS
final roadworks including top curbs and gutters, surface asphalt, sidewalks, street
trees, boulevard topsoil and sodding and driveway aprons of the Road System; and
landscaping works, fencing, walkways and any remaining works not outlined in
paragraphs (2), (3) and (4) of Schedule "G",
(6) FURTHER DESIGN REOUIREMENTS
The design, construction and installation of the Works including the landscaping and
streetscaping treatment of the roads shall be in accordance with the report of Totten,
Sims and Hubicki entitled "Bowmanville West Main Central Area Road Design and
Streetscape Elements", preliminary draft dated December, 1993, as finally approved
by and on file with the Director and shall also take into account to the satisfaction
of the Director the requirements of the Region and Ministry of Transportation of
Ontario and any other commenting authority or agency thereon.
95
SCHEDULE "G-l"
THIS SCHEDULE IS SCHEDULE "G-l" to the Agreement which has been
authorized and approved by By-law No. 94-77 of The Corporation of the Municipality of
Clarington, enacted and passed the 24th day of May, 1994.
STREETSCAPING WORKS
A. 60 METRES NORTH OF HIGHWAY 2 TO STREET E
1. Decorative Street Lights
2. Tree Guards
3. Tree Grates
4. Concrete Sidewalk
5. Precast Pavers (pedestrian)
6. Precast Pavers (vehicular)
7. Topsoil and Sod
8. Trees (including 5 in median)
- both sides of street
- west side only
- west side only
- west side only
- west side only
- west side only
- west side only
- both sides of street
B. HIGHWAY NO.2 TO 60 METRES NORTH
1. Decorative Street Lights - both sides of street
2. Tree Guards - both sides of street
3. Tree Grates - both sides of street
4. Concrete Sidewalks - both sides of street
5. Precast Pavers (pedestrian) - both sides of street
6. Precast Pavers (vehicular) - both sides of street
7. Topsoil and Sod - both sides of street
8. Trees (including 5 in median) - both sides of street
96
SCHEDULE "H"
THIS SCHEDULE IS SCHEDULE "H" to the Agreement which has been
authorized and approved by By-law No. 94-77 of The Corporation of the Municipality of
Clarington, enacted and passed the 24th day of May, 1994.
UTILITIES AND SERVICES REQUIRED
1. ELECTRICAL SUPPLY SYSTEM
The Owner shall arrange with the appropriate authority having jurisdiction for the
design, provision and installation of an electrical supply system to serve the Lands, in the
locations as approved by the Director. All electrical services are to be installed
underground.
The Owner shall also make any necessary arrangements with any T.V. Cable
Company in order that the installation of any such system shall take place so far as
possible contemporaneously with the installation of other services so as to cause
minimum disruption of municipal services.
2. TELEPHONE SYSTEM
The Owner shall arrange with Community Telephone Limited and/or Bell Canada
for the design, provision and installation of a telephone system to serve the said Lands,
as approved by the Director. All telephone services are to be installed underground.
3. GAS SUPPLY SYSTEM
The Owner shall arrange with an appropriate gas company for the design, provision
and installation of a complete gas supply system to serve the said Lands, including gas
mains, and all appurtenant manholes, laterals, service connections, apparatus and
equipment in the locations as approved by the Director.
4. CABLE TELEVISION
The Owner shall arrange with the Cable Television Company having authority to
provide its services within the area of the Plan of Subdivision for the design, provision
97
Schedule "H"
-2-
and installation of a complete cable television distribution system to serve the said
Lands. All cable television services are to be installed underground.
5. MAIL DISTRIBUTION SYSTEM
The Owner shall arrange with Canada Post for the provision and installation of a
mail distribution system to service the said Lands, in the location as approved by the
Director.
98
SCHEDULE "I"
THIS SCHEDULE IS SCHEDULE "I" to the Agreement which has been
authorized and approved by By-law No. 94-77 of The Corporation of the Municipality of
Clarington, enacted and passed the 24th day of May, 1994.
DUTIES OF OWNER'S ENGINEER
1. DESIGN WORKS AND PRIVATE WORKS
In addition to the other requirements of this Agreement, the Owner's Engineer shall
prepare all drawings, plans, studies, reports, estimates, calculations and documentation
for the consideration and approval of the Director, which include:
(a) the Engineering Drawings and other related Drawings;
(b) the Grading Plans, Drainage Plans, Landscaping Plans, Staging Plans,
Utility Composite Plans, Master Drainage Plans, Erosion and
Sedimentation Control Plans and other related Plans;
(c) Traffic Reports, Soils Reports, Geotechnical Reports, Stormwater
Management Reports, Stormwater Implementation Reports and other
related Reports;
(d) Schedules of Work;
(e) the Works Cost Estimates or Stage Cost Estimate; and
(t) all documentation and verification to support Performance Guarantee
and Security for the Maintenance Guarantee reduction submissions.
The approval of the Director shall not absolve or release the Owner or the Owner's
Engineer of the responsibility and liability for any errors or omissions in the above
drawings, plans, reports, stages or documentation or from liability for any damage or loss
caused or resulting directly or indirectly by the Owner's Engineer.
2. REPRESENT OWNER AND OBTAIN MUNICIPAL APPROVALS
The Owner's Engineer is hereby authorized by the Owner to act as the Owner's
representative in all matters pertaining to the design, construction and installation of the
99
Schedule "I"
-2-
Works and the overall management of the development, and shall co-operate with the
Municipality and the Director to protect the interests of the Municipality and the general
public in all matters relating to the design, construction and installation of the Works.
In addition, the Owner's Engineer shall work in accordance with all conditions of this
Agreement, including Section 5 and Schedules "G", "H", "I", "J" and "L".
3. PROVIDE RESIDENT SUPERVISION
The Owner's Engineer shall provide fully qualified, experienced supervisory layout
and inspection staff, acceptable to the Director, to provide continuous inspection service
during all phases of the construction and installation of the Works and the private works.
Without limiting the generality of the foregoing, the Owner's Engineer shall be
responsible for the following:
(a) To carry out or arrange for the carrying out by qualified personnel of field
layout including the provision of line and grade to the contractors and, where
required, res taking.
(b) To thoroughly inspect. the construction, installation, and supply of materials
to ensure that all work is being performed in accordance with the Engineering
Drawings, the Municipality's Design Criteria and Standard Drawings and all
applicable law. The Owner's Engineer shall have the authority and
responsibility to immediately stop and/or reject any work, procedure, or
material which in his opinion does not comply with the Engineering Drawings,
the Design Criteria and Standard Drawings, and/or the applicable law.
(c) To carry out or arrange the carrying out by qualified personnel of all
necessary monitoring and field testing of procedures, equipment and materials
installed or proposed to be installed and, in conjunction with the geotechnical
engineer, and where appropriate, the structural engineer, provide certification
to the Director that all monitoring and test results meet the requirements of
Schedule "L" of this Agreement.
(d) To provide co-ordination and scheduling of the construction and installation
of the Works in accordance with the timing provisions contained in this
Agreement and the requirements of the Director.
100
Schedule "I" -3-
(e) To investigate and immediately report to the Director any unusual
circumstances, potential problems, conflicts, errors, defective work or material
which may arise during the construction and installation of the Works.
(t) To obtain field information during and upon completion of the construction
and installation of the Works required to modify the Engineering Drawings
to produce the as-constructed drawings of the Works
4. MAINTAIN RECORDS
The Owner's Engineer shall maintain all records, data, reports, approvals and orders
pertaining to the construction and installation including all contract documents, sub-
contracts and supply contracts, payment certificates, payment records and receipts,
certificates of substantial performance, the names and addresses of all contractors, sub-
contractors and suppliers of materials and services, certificates of completion of sub-
contracts and proof of service and publication thereof in accordance with the provisions
of applicable legislation and make all of the foregoing available for examination by the
Director as required by the Director without cost. If any change is made in the terms
of a contract, sub-contract or supply contract or in the name or address of a contractor,
sub..contractor and supplier from information that may not have been provided to the
Director by the Owner or the Owner's Engineer pursuant to this Agreement, the Owner's
Engineer immediately after becoming apprised of each change shall give the Director
written notice of it.
5. PROVIDE PROGRESS REPORTS
The Owner's Engineer shall provide the Director with reports on the progress of the
construction and installation of the Works on a monthly basis, or at such other interval
as approved by the Director.
6. PREPARE AS-CONSTRUCTED DRAWINGS
The Owner's Engineer shall prepare and submit the as-constructed drawings of the
Works together with the computer disks, if any have been prepared, to the Director
provided that the as-constructed drawings shall be prepared to the satisfaction of the
Director.
101
SCHEDULE ".T"
THIS SCHEDULE IS SCHEDULE "J" to the Agreement which has been
authorized and approved by By-law No. 94-77 of The Corporation of the Municipality of
Clarington, enacted and passed the 24th day of May, 1994.
WORKS COST ESTIMATES
1
2
3
4
5
6
7
8
9
10
11
$
$
$
$
$
$
$
$
$
$
$
Sub-total $
5% Contingency Allowance $
Sub-total $
10% Engineering Allowance $
Sub-total $
G.S.T. Allowance $
Total Estimated Value of the Works:
$
Total Amount of Performance Guarantee:
$
SUBSEQUENT STAGES
The Performance Guarantee for the Works shall be based on the preliminary
Works Cost Estimates which have been submitted to the Director by the Owner's Engineer
and approved by the Director. When the Engineering Drawings and the Landscaping Plan
have been approved by the appropriate Director as is required by this Agreement, a revised
Works Cost Estimates for the construction and installation of Works shall be prepared by
the Owner's Engineer and submitted to the Director for approval. The revised Works Cost
Schedule "J"
-2-
102
Estimates shall be used as a basis to adjust the Performance Guarantee, in the event of an
increase or decrease in the Works Cost Estimates.
M
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UUNICFAUlY OF CLARIHGTON
WlU.SONll\ LANDS
E8TNATE:O 110)1,0 ANO SfRaTScAPE OO/lt9TflUCTlON COSTS
()4-Feb-l]4
fll. 'WIllB"21-
STREET lCJcATIO/!I lElilOTH UNIT COSIS I'M\ .tOUL PESION. SUP., GST TOTAL
FfION TO !lOADS & STOIlI SlNEErSCAPE lOtI ClJNT. r 17% t 1~ COST
S1JlEET'S' HIGI-M'AY #.2 00 III $JflES NORTH <<I $,1.100 t850 $117,000 $19.eao S9.:i11.2 $148,472
"6C MemES NORTH STA",El' e 70 $1,100 $600 $119.000 $::'0.233 S8 7"8 $148,1.176
TOTAL $295.44a
STREET lOCATION lENGTH UNIT C0ST9 Aft TOTAl. JESlIil N. StfJ.. asT 00
FROf\I TO '1OAoo & sroRI Sl'REETSCAPE COIlSl'RUICTlO1I <<XJNT. f 17"-} .,,, COUllNO C09T
HIGHWAY ;12- ID rdETRES 'ollar OF STREET B 60 METRES EAST OF STREET B ~65 SI50 $175 S&3"e;l5 $$,116 '4,.392 $6,378
TOTAL COSTS $301,828
1II0TE: 1ur___fJI&~
104
SCHEDULE "K"
THIS SCHEDULE IS SCHEDULE "K" to the Agreement which has been
authorized and approved by By-law No. 94-21 of the Corporation of the Municipality of
Clarington, enacted and passed the 24th day of May, 1994.
INSURANCE REOUIRED
1. TYPES OF COVERAGE REOUIRED
The Owner shall obtain and maintain insurance of the character commonly
referred to as public liability and property damage with an insurance company
approved by the Municipality's Treasurer and licensed in Ontario to underwrite such
insurance and containing terms and conditions which are acceptable to the
Municipality's Treasurer. Such policy or policies of insurance shall indemnify the
Municipality against all damage or claims for damage for:
(a) any loss or damage that shall or may happen to any of the Works or any of
the Utilities or to any part or parts thereof respectively;
(b) any loss or damage that shall or may happen to any of the materials or any
of the equipment or any other things used to construct or install any of the
Works or any of the Utilities or any part or parts thereof respectively;
(c) any injury to any person or persons including workmen employed on the said
Lands and the public;
(d) any loss or damage that shall or may results from the storage, use or handling
of explosives;
(e) any loss or damage that shall or may result from the drainage of surface
waters on or from the said Lands;
(t) any loss or damage that shall or may result from the disposal of effluent from
any sewage disposal works; and
(g) any loss or damage that shall or may happen to any public road or to any
other property of the Municipality or to the property of any other person
either directly or indirectly by reason of the Owner undertaking the
development of the said Lands together with any or all of the Works, Utilities
and Services pertaining thereto.
Schedule "K"
-2-
105
2. AMOUNTS OF COVERAGE REOUIRED
Policy or policies of insurance shall be issued jointly in the names of the
Owner and the Municipality and shall provide the following minimum coverages for
five million ($5,000,000.00) dollars for all damage arising out of one (1) accident or
occurrence or series of accidents or occurrences.
The issuance of such policy or policies of insurance or the acceptance of it or
them by the Municipality shall not be construed to relieve the Owner from
responsibility for other or larger claims for which it may be held responsible.
3. EXEMPrION OF COVERAGE PROHIBITED
The policy or policies of insurance shall contain no coverage exemptions or
limitations for:
(a) any shoring, underpinning, raising or demolition of any building or structure;
(b) any pile driving or caisson work;
(c) any collapse or subsidence of any building, structure or land from any cause;
or
(d) any storage, handling or use of explosives in cases in which the Owner is
required to obtain the Director's permission to carry out a blasting operation
under Schedule "L" of this Agreement.
4. TERM OF INSURANCE
The term of the required insurance shall commence no later than the day on which
the first Authorization to Commence Works is issued and shall terminate no earlier than
the last day on which all Certificates of Acceptance have been issued for each of the Works
for all of the Works contemplated by this Agreement.
SCHEDULE ilL"
106
THIS SCHEDULE IS SCHEDULE "L" to the Agreement which has been
authorized and approved by By-law No. 94-77 of The Corporation of the Municipality of
Clarington, enacted and passed the 24th day of May, 1994.
REGULATIONS FOR CONSTRUCTION
1. GENERAL
All work pursuant to and associated with this Agreement shall be carried out
in strict conformity with all approved Engineering Drawings, the Municipality's
Design Criteria, Standard Drawings and Specifications or any revisions thereof and
all applicable legislation, in addition to any requirements set out in this Agreement.
2. SAFElY
The Owner shall ensure that all construction pursuant to and associated with
this Agreement is carried out in conformance with the Occupational Health and
Safety Act, and other applicable legislation.
3. PERMITS AND APPROVALS
The Owner shall ensure that any and all permits and approvals required to
install or construct or prepare to install or construct any of the Works pursuant to
or associated with any part of this Agreement have in fact obtained and are valid and
in good standing.
4. REQUIREMENTS FOR BLASTING
Prior to commencing any blasting, the Owner shall obtain from the Director,
permission to carry out the blasting operation.
5. REMOVAL OF TOPSOIL
The Owner shall not remove any topsoil from the said Lands except for
construction purpose and such topsoil must remain within the limits of the said
Lands.
Schedule "VI
107
-2-
6. DUMPING OF FILL OR DEBRIS
The Owner agrees to neither dump, or permit to be dumped, any fill or
debris, on nor to remove, or permit to be removed any fill from any lands to be
dedicated to the Municipality other than the roads within the limits of the said
Lands, without the written consent of the Director.
7. DISPOSAL OF CONSTRUCTION GARBAGE
The Owner shall remove and dispose of all construction garbage and debris
from the said Lands in an orderly and sanitary fashion in a dump site off the said
Lands and approved by the Director. The Municipality shall not be responsible for
the removal or disposal of garbage and debris. The Owner shall deliver a copy of
this provision to each and every builder obtaining a building permit for any part of
the said Lands and to ensure that no burning of construction garbage or debris is
permitted on the said Lands. Without derogating from the foregoing provisions of
this paragraph, if the Owner fails to remove construction garbage or debris from the
Lands for a period of three (3) consecutive days following the giving of written notice
by the Director to the Owner requiring it to do so, the Director may cause the
construction garbage or debris to be removed to and disposed of in the aforesaid
dumping site at the expense of the Owner. Forthwith after the Director gives written
notice to the Owner requiring it to pay for the costs incurred in removing and
disposing of the construction garbage or debris, the Owner shall pay the Municipality
the amount of money for it is invoiced.
8. QUALITATIVE AND OUANTITATIVE TESTS
(1) The Owner's Engineer shall arrange for and monitor all testing or procedures,
equipment and materials, by a qualified geotechnical engineer and where
applicable, a qualified structural engineer, who shall ensure conformance with
the Engineering Drawings, and either with the Municipality's Design Criteria
and Standard Drawings, or in cases where criteria have not been specified by
the Municipality, with the Ontario Provincial Standards for Roads and
Municipal Services.
(2) Prior to the issuance of a Certificate of Completion, the Owner's Engineer,
in conjunction with the geotechnical engineer and where applicable structural
engineer, shall issue a certificate in a form acceptable to the Director,
confirming, based on the location, frequency and type of tests and monitoring
Schedule "L"
-3-
108
and the results of such tests or monitoring, that he is satisfied with the
materials testing methods used and that the results conform to the
requirements of paragraph 8(1) of this Schedule "L".
(3) The Owner agrees that the Director may, at his sole discretion, employ a
geotechnical engineer to carry out independent qualitative or quantitative tests
on behalf of the Municipality, for any portion of the Works, procedures,
equipment or materials installed or constructed or to be installed or
constructed and that the costs of such testing shall be paid by the Owner.
9. TELEVISED INSPECTION OF STORM SEWER
The Owner agrees to televise and record, to the satisfaction of the Director,
and for Municipality use, all of the storm sewers, and where deemed necessary by the
Director, all catchbasin leads and service connections and, subsequent to any
rectifications or additional work, to re-televise and record to the satisfaction of the
Director, any storm sewer, catch basin lead, rear yard catchbasin lead or service
connection and that all associated costs shall be paid by the Owner.
10. WINTER CONSTRUCTION
In addition to the materials testing criteria for cold weather construction, any
pipe bedding, trench backfill or road building material found to contain frozen
material shall be deemed unacceptable and shall be removed immediately.
The Owner shall not commence placement of base asphalt paving later than
December 1st and shall not commence placement of surface asphalt paving later than
November 15th, unless approved otherwise by the Director.
Should the Director be of the opinion that any of the Works are not being
constructed using effective cold-weather precautions he may, in his absolute
discretion, revoke any Authorization to Commence Works and suspend construction
by issuing a stop work order to be in effect until the Director give the Owner written
notice of the termination of the stop work order.
11. MAINTENANCE. CLOSING AND USE OF EXTERNAL ROADS
The Owner shall, at all times during the life of this Agreement ensure that
during any construction on the said Lands, all public highways abutting the said
109
Schedule "L"
-4-
Lands and all public highways used for access to the said Lands, shall be maintained
in a condition at least equal to their condition on the date as of which this is
Agreement is made, and in all cases to the satisfaction of the Director. At all times,
the Owner shall maintain all such highways free of dust and mud which originate
from the Lands. If, in the opinion of the Director, a highway has been damaged as
a result of the construction, installation or maintenance of the Works, or the
development of any portion of the Lands as a result of any action or default by any
person other than the Municipality, its agents, employees or contractors, forthwith
after the Director gives the Owner written notice of his opinion, the Owner, at the
Owner's expense, shall repair such road to the condition which is at least equal to
its condition immediately prior to the date of such damage, to the satisfaction of the
Director. No highway outside the limits of the said Lands shall be closed without the
prior written approval of the authority having jurisdiction over such highway. The
Owner agrees not to use or occupy any untravelled portion of any road allowance
without the prior written approval of the authority having jurisdiction over such road
allowance.
U. MAINTENANCE OF INTERNAL ROADS
Prior to the placement of the base course of asphalt on any road required to
be constructed under this Agreement, the Owner shall remove any contamination of
the granular base course and repair and replace such base course, where necessary,
to the approval of the Director, in order that the construction of such road shall not
have suffered due to any use of the granular base course as a temporary road.
Similarly, prior to the placement of the surface of asphalt on any road
required to be constructed under this Agreement, the Owner shall clean the base
course of asphalt and repair and replace such base course where necessary.
Until the roads within the 40M Plan are assumed by the Municipality, the
Owner shall maintain all internal roads in a condition acceptable to the Director, and
shall ensure these roads are free of dust and mud.
13. WEED AND RAT CONTROL
After the commencement of construction the Owner shall institute upon the
Lands a program of weed and rat control to the satisfaction of the Director.
110
SCHEDULE "M"
THIS SCHEDULE IS SCHEDULE "M" to the Agreement which has been
authorized and approved by By-law No. 94-77 of The Corporation of the Municipality of
Clarington, enacted and passed the 24th day of May, 1994.
Not used
111
SCHEDULE "N"
THIS SCHEDULE IS SCHEDULE "N" to the Agreement which has been
authorized and approved by By-law No. 94-77 of The Corporation of the Municipality of
Clarington, enacted and passed the 24th day of May, 1994.
Not used
112
SCHEDULE "0"
THIS SCHEDULE IS SCHEDULE "0" to the Agreement which has been
authorized and approved by By-law No. 94-77 of The Corporation of the Municipality of
Clarington, enacted and passed the 24th day of May, 1994.
Not used
113
SCHEDULE "pIt
THIS SCHEDULE IS SCHEDULE "P" to the Agreement which has been
authorized and approved by By-law No. 94-77 of The Corporation of the Municipality of
Clarington, enacted and passed the 24th day of May, 1994.
Not used
114
SCHEDULE "Q"
THIS SCHEDULE IS SCHEDULE "Q" to the Agreement which has been
authorized and approved by By-law No. 94-77 of The Corporation of the Municipality of
Clarington, enacted and passed the 24th day of May, 1994.
CONSERVATION AUTHORITY'S WORKS
Not Used
.115
SCHEDULE "R"
THIS SCHEDULE IS SCHEDULE "R" to the Agreement which has been
authorized and approved by By-law No. 94-77 of The Corporation of the Municipality of
Clarington, enacted and passed the 24th day of May, 1994.
ENGINEERING AND INSPECTION FEES
Estimated Cost of WorksFees
Up to $100;000.004% to a maximum of $4,000.00
$100,000.00 to $500,000.00$4,000.00 or 3.5% of the estimated cost of services -whichever is
greater
$500,000.00 to $1,000,000.00$17,500.00 or 3% of the estimated cost of services -whichever
is greater
$1,000,000.00 to $2,000,000.00$30,000.00 or 2.50% of the estimated cost of services _
whichever is greater
$2,000,000.00 to $3,000,000.00$50,000.00 or 2.25% of the estimated cost of services _
whichever is greater
$3,000,000.00 to $4,000,000.00$67,500.00 or 2% of the estimated cost of services -whichever
is greater
For the purposes of calculating the Engineering and Inspection Fees as contemplated by this
Schedule, the estimated costs of Works shall include the Cost Estimates as specified in
Schedule "J" hereto, and shall also include the estimated cost of Region services. The
payment of the Engineering and Inspection fees to the Municipality are subject to the Goods
and Services Tax, and therefore an additional seven (7%) percent must be added to the fees
calculated using this Schedule and paid by the Owner to the Municipality.
The Engineering and Inspection Fees are to be paid to the Municipality prior to issuance
of the Authorization to Commence Works provided that if there is a Staging Plan the
Engineering and Inspection Fees relating to each stage are to be paid to the Municipality
prior to issuance of the Authorization to Commence Works for the stage in question.
116
SCHEDULE "S"
THIS SCHEDULE IS SCHEDULE "S" to the Agreement which has been
authorized and approved by By-law No. 94-77 of The Corporation of the Municipality of
Clarington, enacted and passed the 24th day of May, 1994.
Not used
117
SCHEDULE "T"
THIS SCHEDULE IS SCHEDULE liT" to the Agreement which has been
authorized and approved by By-law No. 94-77 of The Corporation of the Municipality of
Clarington, enacted and passed the 24th day of May, 1994.
TREE PRESERVATION PLAN
Not Used
118
SCHEDULE "V"
THIS SCHEDULE IS SCHEDULE "V" to the Agreement which has been
authorized and approved by By-law No. 94-77 of The Corporation of the Municipality of
Clarington, enacted and passed the 24th day of May, 1994.
LANDSCAPING PLAN
Not Used
.
119
SCHEDULE "V"
THIS SCHEDULE IS SCHEDULE "V" to the Agreement which has been
authorized and approved by By-law No. 94-77 of The Corporation of the Municipality of
Clarington, enacted and passed the 24th day of May, 1994.
REOUIREMENTS OF OTHER AGENCIES
Not Used
~
120
SCHEDULE "W'
THIS SCHEDULE IS SCHEDULE "WI to the Agreement which has been
authorized and approved by By-law No. 94-77 of The Corporation of the Municipality of
Clarington, enacted and passed the 24th day of May, 1994.
Not used
SCHEDULE "X"
121
THIS SCHEDULE IS SCHEDULE "X" to the Agreement which has been
authorized and approved by By-law No. 94-77 of The Corporation of the Municipality of
Clarington, enacted and passed the 24th day of May, 1994.
PERMITTED ENCUMBRANCES
NIL
122
THIS FIRST AMENDING AGREEMENT made as of this 30th day of April,
1996.
BETWEEN:
II
mE CORPORATION OF mE MUNICIPALITY OF CLARINGTON
(hereinafter called the "Municipality")
OF THE FIRST PART
- and -
CLARINGTON PLACE LIMITED
(hereinafter called the "Owner")
OF THE SECOND PART
/
- and -
WILLSONIA INDUSTRIES LIMITED
(hereinafter called the "Mortgagee")
OF THE THIRD PART
WHEREAS:
A. Amendment No. 56 to the Municipality's Official Plan ("Amendment No. 56")
was approved with modifications by Order of the Ontario Municipal Board dated July 24, 1995
(O.B. #1995-4, Folio #366).
B. The Municipality's By-law No. 94-16 was enacted by Order of the Ontario
Municipality Board dated February 23, 1996 (O.B. #1996-2, Folio # 91). It applies to a portion
of the lands and premises more particularly described in Schedule "AA II hereto.
C. The Parties hereto entered into an agreement dated May 24, 1994 (the "Servicing
Agreement") which applies in respect of the lands and premises more particularly described in
Schedule "A" thereto which comprise portions of the lands now owned in fee simple by the
Owner. The Parties have agreed that the Servicing Agreement should be amended to apply in
respect of the lands now owned in fee simple by the Owner and more particularly described in
Schedule "AA" hereto.
D. The Parties have also agreed that the Servicing Agreement should be amended to
apply in respect of all of the Lands, to deal with the Owner's contribution to the cost of
123
First Amending Agreement
Page 2
urbanizing a portion of Highway No. 2 to implement Amendment No. 56 and certain other
matters set out herein.
E. This First Amending Agreement is authorized by Council's approval of the
recommendations contained in Report #Admin 14-95, on April 24, 1995, a copy of which is
contained in Schedule "BB" hereto, and by Council's enactment of By-law No. 95-63, By-law
No. 96-107 and By-law No. 96-115.
'.
NOW mEREFORE WITNESSEm THAT in consideration of the premises
and the covenants hereinafter expressed, and the sum two dollars ($2.00) of lawful money of
Canada, now paid by each Part to the others (the receipt whereof by each party is hereby
acknowledged), the parties hereto covenant and to and with each other as follows:
1. The following amendments are hereby made to the Servicing Agreement:
1.1 Definitions
(1) Paragraphs 1.1(1), (c), (s), (aa), (cc) , (qq), (ss) , (tt), (uu) , (ww), (xx), (eee),
(fff), (yyy) and (aaaa) are deleted. Paragraphs 1.1(1) (eee) and (fff) are replaced
with the following:
"(eee) "Phase I of the Development of the Lands" means the development of
all or anyone or more portions of the Lands comprising Parts 2, 8 and 16
shown on Reference Plan 40R-16730.
(fff) "Phase n of the Development of the Lands" means the development of
all or anyone or more )X>rtions of the Lands comprising Parts 4 and 12
shown on Reference Plan 40R-16730, and/or the redevelopment of the
whole or part of the portion of Phase I of the Development of the Lands
located on Part 16 on Reference Plan 40R-16730 and comprising more
than 1858 square metres of "gross leasable tloorspace" as that term is
defmed in By-law No. 84-63 as replaced or amended from time to time,
provided that the Streetscaping Works located on the westerly side of the
portion of Clarington Boulevard situated on Part lIon Plan 40R-16730
are constructed by the Owner at its cost prior to the occupation of a
building on Part 16 containing not more than 1858 square metres of gross
leasable tloorspace, and provided further that the development of Part 4
for the purpose of a temporary parking lot for use in connection with the
use of one or more buildings on Part 2 and/or Part 8 on Reference Plan
First Amending Agreement
124
Page 3
40R-16730 for a purpose or purposes permitted by the aforesaid By-law
No. 84-63 shall not be deemed to constitute the commencement of Phase
n of the Development of the Lands fo~ the purposes of this Agreement."
(2) Paragraph 1.1 is also amended by adding new definitions in alphabetical order as
follows:
(i) "Highway No.2 Urbanization Zone" is defined on the map contained in
Schedule "DD" of this Agreement.
(ii) "Urbanization Works" has the meaning assigned to it in paragraph lOA. 1
of this Agreement
(iii) "Urbanization Contributions" has the meaning assigned to it in
paragraph 10A.4 of this Agreement. ./
(iv) "Urbanization Works Cost Estimate" has the meaning assigned to it in
paragraph IOA.4 of this Agreement.
(v) "Urbanization Works Security" has the meaning assigned to in paragraph
IOA.6 of this Agreement.
(vi) "Revised Urbanization Works Cost Estimate" has the meaning assigned
to it in paragraph IOA.7 of this Agreement.
I
(vii) "Urbanization Works Performance Guarantee" has the meaning
assigned to it in paragraph IOA.7 of this Agreement.
(viii) "Highway No.2 Account" has the meaning assigned to it in paragraph
IOA.8 of this Agreement.
(ix) "Final Streetscape Report" has the meaning assigned to it in Schedule
"0-1 of this Agreement.
(x) "Selected Part" has the meaning assigned to it in paragraph 7.1(1) of this
Agreement.
(xi) "Phase I Transferred Lands" has the meaning assigned to it in Schedule
"F" of this Agreement.
First Amending Agreement
125
Page 4
(xii) "Phase n Transferred Lands" has the meaning assigned to it in Schedule
"F" of this Agreement.'1
(xiii) "Subdivision Agreement" has the meaning assigned to it in paragraph
7.1(1) of this Agreement.
(xiv) "Subsequent Initial Security" has the meaning assigned to it in 2.7(1) of
this Agreement.
(xv) "Subsequent Starting Estimated Cost" has the meaning assigned to it in
2.7(1) of this Agreement.
1.2 Description of Lands
The text contained in Schedule "A" of the Servicing Agreement is deleted and replaced
with the text contained in Schedule "AA" hereto.
1.3 Transfer of Easements
Paragraph (1) of Schedule "E" is amended by deleting the words and figure "Within
forty-five (45) days of the Effective Date" and replacing them with the words and date "Prior
f
to the execution of this Agreement by the Municipality"
1.4 Transfer of Lands
The text of paragraph 1 of Schedule "F" is deleted and replaced with the following text:
"(1) Lands to be Transferred to the Municipality Prior to Execution oftbis
A&reement
Prior to the execution of this Agreement by the Municipality, the Owner
shall deliver to the Municipality in a form satisfactory to the Municipality,
transfers in fee simple absolute free and clear of encumbrances, except for
the Permitted Encumbrances shown as Parts 5, 6, 7, 11, 13 and 15 on
Reference Plan 40R-16730. ("Phase I Transferred Lands")
(2) Lands to be Transferred to the Municipalitv Prior to Commencement
of Pbase n of the Development of the Lands
Prior to the commencement of Phase II of the Development of the lands,
the Owner shall deliver to the Municipality in a form satisfactory to the
First Amending Agreement
126
Page 5
Municipality, transfers in fee simple absolute free and clear of
encumbrances, except for the Permitted Encumbrances shown as Parts 14
and 19 of Reference Plan 40R-16730; ("Phase II Transferred Lands")
, ~
1.S Streetscapine Works
The text of Schedule "G-l" is amended by adding at the end thereof the following:
"as shown on the cross-section drawing identified as Figure 4 in the Final Report
prepared by Totten, Sims, Hubicki entitled "Functional Engineering and Streetscape
Implementation Plan Bowmanville West Main Central Area" dated September, 1994 as
finally approved by and on file with the Director of Public Works (the "Final Streetscape
Report"). "
1.6 Startine Estimated Cost of Works
/
Schedule "J-l" of the Servicing Agreement is deleted and replaced with a new Schedule
"J-l" which is contained in Schedule "CC" hereto.
2.1 Transfer of Easements
(1) Paragraph 2.4(1) is amended by deleting the words and figure "Within forty-five
(45) days of the Effective Date" from the frrst line thereof and by replacing them
with the words and date "PrIor to the execution of this Agreement by the
Municipality"
(2) Paragraph 2.4(2) is amended by deleting the words "subsequent to the Effective
Date, but" from the first line thereof.
2.2 Transfer of Lands
Paragraph 2.5 is amended by:
(a) renumbering paragraph 2.5 as paragraph 2.5 (1)
(b) deleting from renumbered paragraph 2.5(1) the words and figure "Within forty-
five (45) days of the Effective Date" from the frrst line thereof and replacing
them with the words and date "Prior to the execution of this Agreement by the
Municipality" and adding "except for permitted Encumbrances" after the word
"restrictions" .
First Amending Agreement
127
Page 6
II
(c) deleting the word "lands" in line 3 of renumbered paragraph 2.5 (1) and replacing
it with the words "Phase I Transferred Lands" (as hereafter described), and
(d) adding a new paragraph 2.5(2) as follows:
"Prior to the commencement of Phase II of the Development of the Lands, the
Owner shall deliver to the Municipality executed transfers, sufficient to vest in
the Municipality title in fee simple absolute free and clear of all encumbrances
and restrictions, of .Phase II Transferred Lands. (as hereafter defined) together
with a certificate signed by an Ontario Solicitor and addressed to the Municipality
certifying as to the title to such lands being transferred and shall pay to the
Municipality in cash or by certified cheque an amount of money which is equal
to any tax, fee, or cost payable at the time of or in respect of the registration of
such transfers against the title to the lands to which they apply. All transfers
referred to in this paragraph 2.5(2) shall contain provisions to the satisfaction of
the Municipality's Solicitor, shall be made for a nominal consideration, and shall
be in a registerable form.
2.3 Extension of Uptown A venue and Clarin&ton Boulevard and
Transfer of Certain Reserves
A new paragraph 2.7 is added as follows:
2.7 (1)
Extension of Clarineton Boulevard and U!)town Avenue and
Transfer of Reserves on North Side of U!)town A venue
Either prior to transferring to any person anyone or more portions of the
lands which comprise Parts 4, 12 or 16 on Reference Plan 40R-16730 to
any other person or prior to commencing Phase II of the Development of
the Lands whichever shall first occur, the Owner:
(a) shall have complied with the requirement of paragraph 7.1(2)
(b) shall have prepared a proposed Works Cost Estimate and the Director of
Public Works shall have approved a Works Cost Estimate for the Works
which are to be constructed and installed on Parts 14 and 19 on Plan 40R-
16730, and the Streetscaping Works which are to be constructed or
installed on the westerly portion of the part of Clarington Boulevard which
comprises Parts 11, 13, 15 and 17 on Plan 40R-16730;
128
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First Amending Agreement
Page 7
(c) shall have deposited with the Municipality cash or an irrevocable and
unconditional letter of credit (the "Subsequent Initial Security") in the total
amount of the Works Cost Estimate (the "Subsequent Starting Estimated
Cost"); and
(d) shall have transferred to the Municipality in fee simple free and clear of
all encumbrances for a nominal consideration,
(i) the areas of land 0.31 metres wide which abuts the northerly limits
of Parts 6 and 14 on Plan 40R-16730; and
(ii) Parts 14 and 19 on Reference Plan 40R-16730; and
The provisions of paragraphs 2.5, 2.6 and 3.6 apply withAllI necessary changes
to them being considered to have been made to give effect to the intent of this
paragraph 2.7.
2.7 (2) Subsequent Startin, Fstimated Cost and Adjustments
Until submission by the Owner to and approval by the Director of Public
Works of the Works Cost Estimate referred to in paragraph 2.7(1)(b) by
the replacement by the Director of Schedule "J" hereto as is provided for
in paragraph 5.9, the Parties acknowledge and agree that the estimated
cost of construction and installation of the Works and the Streetscaping
Works referred to is $461,632.00 which is deemed to be the "Subsequent
Starting Estimated Cost") shall be adjusted on the Adjustment Date, and
the adjustment shall be in accordance with the Engineering News Record
Building Cost Index (Ontario Series) for the dates which comprise the
Adjustment Date. (The Subsequent Starting Estimated Cost as so adjusted
from time to time is called in this Agreement the "Adjusted Subsequent
Starting Estimated Cost"). The first Adjustment Date on which the
Adjusted Subsequent Starting Estimated Cost shall be determined is the
Adjustment Date which immediately follows April 30, 1996.
2.7 (3) Certain Other Provisions of Aereement Apply
The provisions of paragraph 2.5 and 2.6 apply in respect of the transfers
to the Municipality referred to in paragraph 2.7(1)(d) with all necessary
changes thereto being considered to have been made to them to give effect
to the intent of this paragraph 2.7(1)(d). The provisions of paragraphs
"
129
First Amending Agreement
Page 8
3.6(1) and 3.6(2) apply in respect of the Performance Guarantee required
by paragraph 2.7(i)(c) with all necessary changes to them being considered
to have been made to give effect to the intent of paragraph 2.7(1)(b). The
provisions of this Agreement shall apply in respect of the Adjusted
Subsequent Starting Estimated Cost with all necessary changes being
considered to have been made to give effect to the intent of this paragraph
2.7(3). For the avoidance of doubt, except as otherwise provided in this
paragraph 2.7, the provisions of Articles 3.5 and 6 and the Schedules to
this Agreement apply in respect of the Works referred to in paragraph
2.7(1)(b).
3.1 Startine Estimated Cost
The words and figure "two hundred and seventy-five thousand four hundred and forty-
eight ($275,448.00) dollars are deleted from paragraph 3.6 (3) and are replaced with the words
and figure "five hundred and twenty-seven thousand nine hundred and eighty-nine ($527,989.00)
dollars. "
4.1 Effect of Subdivision Aereement
(1) Renumber paragraph 7.1 as paragraph 7.1 (1) and amend it by adding at the end
thereof the following:
On the registration of an agreement (the "Subdivision Agreement") between the
Owner and the Municipality pursuant to the provisions of subsection 51 (26) of the
Plannin~ Act which provides for the construction and/or installation of the Works
and the Streetscaping Works on Parts 14 and 19 on Reference Plan 40R-16730,
on and from the date of the registration of the Subdivision Agreement, the
provisions of this Agreement respecting the Owner's obligations to construct or
install Works and Streetscaping Works on Parts 14 and 19, shall cease to apply,
provided that if the Subdivision Agreement requires the Owner to construct and
install the Works and the Streetscaping Works on one only of the aforesaid Parts
14 and 19 (the "Selected Part"), on and from the date of registration on title of
the Subdivision Agreement the provisions of this Agreement respecting the
Owner's obligations to construct or install the Works and Streetscaping Works on
the Selected Part cease to apply in respect of the Selected Part, but in all other
respects, the provisions of this Agreement shall continue to govern the
relationship of the Parties hereto. If prior to the Owner transferring anyone or
more portions of the lands which comprise Parts 4, 12 or 18 on Reference Plan
I.
130
Page 9
First Amending Agreement
40R-16730 to any other person (1) a plan of subdivision is approved and
registered under Section 51 of the Plannin~ Act, (2) the plan of subdivision
defmes Parts 14 and 19 on Reference Plan 40R-16730 as public streets, (3) a
Subdivision Agreement between the Owner and the Municipality requiring the
Owner to construct or install the Works and the Streetscaping Works on the
aforesaid Parts 14 and 19 is made and registered on title, (4) an Authorization
to Commence Work respecting the construction or installation of the Works and
the Streetscaping Works, located on the aforesaid Parts 14 and 19 has not been
given by the Director of Public Works pursuant to this Agreement including the
Servicing Agreement, (5) the "Subsequent Initial Security" (as hereafter defmed)
has been deposited with the Municipality pursuant to paragraph 2.7(1)(b) of this
Agreement and the areas referred to in paragraph 2.7(d)(i) of this Agreement
have been transferred by the Owner to the Municipality, as soon as is reasonably
practicable after the registration of the Subdivision Agreement on title the
Municipality (a) shall return the Subsequent Initial Securi~y to the Owner or the
person next best entitled to it, undrawn upon and, at the Owner's expense, and
(b) shall transfer the areas of land referred to in paragraph 2.7(1)(d)(i) to the
Owner or as directed by the Owner for a nominal consideration, at the expense
of the Owner.
4.1 (2) Add a new paragraph 7.1 (2) as follows:
7.1 (2) Notwithstanding any other provision of this Agreement, prior to commencing
Phase II of the Development of the Lands, the Owner either shall apply for and
obtain consent to transfer Parts 4, 12 and 16 shown on Reference Plan 40R-16730
or shall apply for approval of and register a Plan of Subdivision showing Parts
4, 12 and 16 as separate lots or blocks and Parts 14 and 19 as public streets on
the Plan of Subdivision.
5.1 Hiihway No.2 Urbanization Works
The Servicing Agreement is amended by adding thereto a new Article lOA as follows:
"ARTICLE lOA - HIGHWAY NO.2 URBANIZATION
IOA.I Owner's Oblieation
The "Highway No.2 Urbanization Zone" referred to in this Agreement is
adjacent to the Owner's Lands and comprises the lands identified as such on the
map contained in Schedule "DD" hereto. The improvements, equipment and
landscaping which are to be constructed or installed to urbanize the Highway No.
I ~
131
First Amending Agreement
Page 10
2 Urbanization Zone are shown on the report prepared by Totten Sims Hubicki
and entitled "Functional Engineering Streetscape Implementation Plan
Bowmanville West Main Central Area" dated September 19, 1994 as finally
approved by and on file with the Director of Public Works (the "Final Streetscape
Report") and collectively are referred to in this Agreement as the "Urbanization
Works". The Urbanization Works do not include a storm sewer or storm sewer
oversizing to accommodate storm water flowing from the Lands southerly to a
storm sewer or outfall south of Highway No.2.
10A.2 Additions to and Removals from Urbanization Works
The Owner understands and agrees that the Director, acting reasonably, may
determine in his discretion to add improvements, equipment and/or landscaping
to the Urbanization Works or remove the same from the Urbanization Works.
The Owner hereby authorizes the Director to add or r~move improvements,
equipment and/or landscaping for this purpose, from time to time, provided that
forthwith after each occasion that the Director exercises this authority, he shall
give written notice thereof to the Owner.
10A.3 Acknowledeements of Parties
The Parties acknowledge that the construction, installation and guarantee of the
Urbanization Works in the Highway No.2 Urbanization Zone is intended to
implement relevant provisions of Amendment No. 56, and will be of benefit to
the Owner of the Lands. The Parties also acknowledge that the Municipality
intends to make appropriate arrangements with the Region and satisfactory to both
the Municipality and the Region respecting the construction, installation and
guarantee of the Urbanization Works, including standards of the construction and
installation, the inspection of them by appropriate inspectors from time to time,
the acceptance of them by the Region, the financial security that will be required
to be provided by the contractor, the form and content of the tender and contract
documents, and such other matters deemed necessary by the Municipality and the
Region.
10A.4 Intended Sharine of the Cost of Urbanization Works
The current estimate of the costs of the Urbanization Works (the "Urbanization
Works Cost Estimate") is one million, one hundred ninety thousand
($1,190,000.00) dollars which is intended to be shared in the following
proportions:
1\
132
First Amending Agreement
Page 11
Intended
Contributors
Initial
Intended
Percentae:e
Intended
Contribution
the Owner
829426 Ontario Inc. and
838038 Ontario Inc.
the Municipality
the Region
21.0%
$ 250,000.00
33.6%
25.2%
20.2%
100%
400,000.00
300,000.00
240.000.00
~1119Q.000.QQ
The aforesaid intended contributions collectively are referred to in this Agreement as the
"Urbanization Contributions".
10A.S Owner's Acknowled&ment Respectine: Municipality's Contribution
,/
The Owner acknowledges and agrees with the Municipality that the Municipality
shall not be under a duty either to undertake the construction and installation of
the Urbanization Works or to contribute funds to the cost thereof unless (i) the
Region notifies the Municipality in writing that it will make a contribution of
$240,000.00 to the cost of the Urbanization Works, (ii) the agreements and
amending agreements referred to in Report UAdmin 14-95 as it may be amended
f
are made by the respective necessary parties thereto, and (iii) 829426 Ontario Inc.
and 838038 Ontario Inc. execute an agreement with the Municipality containing
provisions substantially similar to section lOA. of this Agreement with necessary
amendments being made to reflect their higher contribution set out below, to
contribute to the cost of the Urbanization Works and deposit security with the
Municipality satisfactory to the Municipality's Treasurer in the amount of
$400,000.00 as their contribution to the cost of the Urbanization Works.
10A.6 Urbanization Works Security
Prior to the execution of this Agreement by the Municipality, the Owner shall
deposit with the Municipality a letter of credit issued by a bank listed in Schedule
I of the Bank Act, R.S.O. 1985, c.B.l acceptable to the Municipality's Treasurer
which letter of credit shall contain terms satisfactory to the Municipality's
Treasurer in the amount of the two hundred and fifty thousand ($250,000.00)
dollars to be held as security for the performance of the Owner's covenant set out
in paragraph lOA.8 (the "Urbanization Works Security").
'.
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First Amending Agreement
Page 12
IOA.7 Revised Urbanization Works Cost Estimate
(a) If the lowest tendered contract price contained in a qualified bid from a qualified
contractor to construct and install the Urbanization Works exceeds the
Urbanization Works Cost Estimate of$I,190,000.00 by less than $59,500.00, the
Municipality may accept the bid and enter into a construction contract with the
contractor in question without first obtaining the written concurrence of the
intended Contributors referred to in paragraph 10A.4. Forthwith after being
given written notice by the Director that the Municipality intends to accept the bid
as aforesaid, the Owner will increase the amount of the Urbanization Works
Security deposited with the Municipality by the amount achieved by applying the
following formula to the amount by which the contract price exceeds the
Urbanization Works Cost Estimate of $1,190,000.00:
Owner's share of increase = 21 % times the amount of the difference
between the contract price and $1,190,000.00. /
(b) Forthwith after each notice of a "Revised Urbanization Works Cost Estimate" (as
hereafter defined) or further Revised Urbanization Works Cost Estimate is given
to the Owner which reduces the total estimated cost of the Urbanization Works
to an amount which is less than $1,190,000.00, the Municipality may authorize
the Owner and the issuing Bank to reduce the amount of the letter of credit
deposited with the Municipality as the Urbanization Works Security by the
amount achieved by applying the following formula to the amount of the decrease
in the total estimated cost of the Urbanization Works in question:
Owner's share of decrease = 21 % times the amount of the decrease in the
total estimated cost of the Urbanization Works.
(c) If the lowest tendered contract price contained in a qualified bid from a qualified
contractor to construct and install the Urbanization Works exceeds the
Urbanization Works Cost Estimate of $1,190,000.00 plus $59,500.00 by more
than 5% and such price is more than $1,309,000.00, the Municipality shall not
accept the bid without first attempting to obtain the written concurrence of the
intended Contributors, who are referred to in paragraph 10A.4, other than the
Region, to the increase in the cost of the Urbanization Works above
$1,249,500.00. If each of the intended Contributors, other than the Region, does
not concur with the increase in cost, the Municipality may delete any items
identified by the Director as appropriate for deletion from the Urbanization
Works so as to reduce the cost thereof to an amount that is less than
II
134
First Amending Agreement
Page 13
$1,309,000.00 and enter into a contact with the lowest qualified bidder for the
construction of the revised Urbanization Works for a price equal to such amount
that is less than $1,309,000.00.
If the contract price for the construction and installation of the Urbanization
Works bid by a qualified contractor in a qualified bid is more than $1,249,500.00
but is less than $1,309,000.00 or if the contract price is more than $1,309,000.00
and the intended Contributors, other than the Region, concur in writing with the
increase in cost of the Urbanization Works, the Director may give written notice
to the Owner as well as to the other intended Contributors of the revision to the
Urbanization Works Cost Estimate (the "Revised Urbanization Works Cost
Estimate") that the Director in his discretion, acting reasonably, has determined
to make. Forthwith after each notice of a Revised Urbanization Works Cost
Estimate or further Revised Urbanization Works Cost Estimated is given to the
Owner, which provides for an increase in the total ~stimated cost of the
f
Urbanization Works to an amount which is in excess of $1,249,500.00, the
Owner will increase the amount of the letter of credit deposited with the
Municipality by an amount equal to the amount achieved by applying the
following formula to the amount of the increase in the total estimated cost of the
Urbanization Works in question:
Owner's share of increase = 26.32 % times the amount of the increase in
the total estimated cost of the Urbanization Works.
(d) Without derogating from the other provisions of this paragraph IOA.7, forthwith
after any occasion on which any improvement, equipment and/or landscaping is
added to or removed from the Urbanization Works, the Director, in his discretion
acting reasonably, may give written notice to the Owner and to the other intended
Contributors of a further Revised Urbanization Works Cost Estimate that Director
in his discretion has determined to make and the provisions of paragraphs
lOA.7(a), (b) or (c), whichever is appropriate shall apply with all necessary
changes to it being considered to have been made to give effect to the intent of
this paragraph IOA.7(d).
(e) The total amount of the deposit that is required to be made by the Owner with the
Municipality by the Owner from time to time as the Urbanization Works Security
pursuant to this paragraph lOA.7 is referred to in this Agreement as the
"Urbanization Works Performance Guarantee".
II
135
First Amending Agreement
Page 14
10A.S Payment of Amount Equal to Urbanization Works Performance Guarantee
Within five (5) business days, excluding Saturdays, commencing with the date on
which the Director gives the Owner notice that the Municipality has accepted an
offer by a qualified contractor to construct and install the Urbanization Works,
the Owner shall pay to the Municipality an amount equal to the amount of the
Urbanization Works Performance Guarantee and thereafter shall forthwith pay to
the Municipality any increase in the amount of the required Urbanization Works
Performance Guarantee resulting from written notice of a Revised Urbanization
Works Cost Estimate or a furtller Revised Works Cost Estimate being given to
the Owner pursuant to paragraph lOA. 7. Each amount so paid shall be deposited
by the Municipality's Treasurer in an interest bearing account (the "Highway No.
2 Account") together with other Urbanization Contributions that are paid to the
Municipality by other Contributors referred to in paragraph 10A.4. Moneys in
the Highway No.2 Account may be disbursed by the Municipality to pay the cost
of constructing and/or installing the Urbanization Works/or any of them. If
amounts equal to the amount of the Urbanization Works Performance Guarantee
and any increases thereof as aforesaid, if any, are not paid by the Owner to the
Municipality as is required by this paragraph IOA.8, the Owner agrees that the
Municipality's Treasurer may present the Urbanization WorkS Security if it is in
the form of a letter of credit which is deposited with the Municipality to the
issuing bank for payment, and pay the proceeds thereof into the Highway No. 2
Account on the Owner's behalf for disbursement in accordance with this
paragraph IOA.S.
IOA.9 Adiustment Following Notice of as As-Constmcted Costs
(a) As soon as is reasonably practicable following the acceptance of the Urbanization
Works by the Region evidenced by the issuance of the Region's Certificate of
Acceptance thereof, the Director in his discretion shall determine the aggregate
of the as-constructed costs of the Urbanization Works and shall give written
notice thereof to the Owner.
(b) Assuming that (1) the latest of the Urbanization Works Cost Estimate, the
Revised Urbanization Works Cost Estimate, and the further Revised Urbanization
Works Cost Estimate, as the case may be, sets out a total estimated cost of the
Urbanization Works which is less than one million two hundred and forty-nine
thousand five hundred ($1,249,500.00) dollars, and (2) amounts equal to such
total estimated cost of the Urbanization Works have been paid into the Highway
No.2 Account in accordance with the provisions of this Article 10:
r:<<.
136
First Amending Agreement
Page 15
(i) if the aggregate of the as-constructed costs of the Urbanization Works is
less than the amounts paid into the Highway No. 2 Account, the
Municipality shall pay to the Owner an amount equal to 21 % of the
balance, if any, remaining in the Highway No. 2 Account after all proper
claims thereon have been paid; and
(ll) if the aggregate of the as-constructed costs of the Urbanization Works is
more than the amounts paid into the Highway No. 2 Account, the
Municipality shall pay to the Owner an amount equal to 21 % of the
difference between the aggregate of the as-constructed costs of the
Urbanization Works and the balance, if any, remaining in the Highway
No.2 Account after all proper claims thereon have been paid.
\
(c) Assuming that (1) the latest of the Urbanization Works Cost Estimate, the
Revised Urbanization Works Cost Estimate and the further~evised Urbanization
Works Cost Estimate, as the case may be, sets out a total estimated cost of the
Urbanization Works which is more that one million two hundred and forty nine
thousand five hundred ($1,249,500.00) dollars, and (2) amounts equal to such
total estimated cost of the Urbanization Works have been paid into the Highway
No. 2 Account in accordance with the provisions of this Article 10:
(i) if the aggregate of the as-constructed costs of the Urbanization Works is
less than the amount paid into the Highway No. 2 Account, the
Municipality shall pay to the Owner amounts equal to (aa) 21 % of the
balance, if any, remaining in the Highway No. 2 Account up to the first
one million two hundred and forty-nine thousand five hundred
($1,249,500.00) dollars that has been deposited in the Highway No.2
Account after all proper claims thereon have been paid, and (bb) 26.32%
of the amounts paid into the Highway No. 2 Account in excess of one
million two hundred and forty-nine thousand five hundred ($1,249,500.00)
dollars; and
1\
(ll) if the aggregate of the as-constructed costs of the Urbanization Works is
more than the amounts paid into the Highway No. 2 Account, the
Municipality shall pay to the Owner an amount equal to 26.32% of the
difference between the aggregate of the as-constructed costs of the
Urbanization Works and the balance, if any, remaining in the Highway
No. 2 Account after all proper claims thereon have been paid.
.137
First Amending Agreement
Page 16
(d) The amounts to be paid to the Municipality or to the Owner pursuant to this
paragraph 10.9 shall be paid by the Owner to the Municipality or by the
Municipality to the Owner, respectively, forthwith after written notice has been
"
given by the Director of the aggregate of the as-constructed costs of the
Urbanization Works pursuant to paragrclph 1O.9(a).
6.1 ARTICLE 9
Article 9 is deleted.
7.1 Servicin& of Portions of Clarinaton Boulevard North of Uptown Avenue and
Installation of Certain Streetscnpine Work
A new paragraph 10.2 is added as follows:
/
10.2 Servicin& of Portions of Clarinaton Boulevard and Uptown Avenue
and Installation of Certain Streetscape Works
Without derogating from paragraph 10.1 the Owner and the Municipality
acknowledge that the servicing of the portion of Uptown Avenue and Clarington
Boulevard which comprise Parts 14 and 19 respectively on Plan 40R-16730 and the
construction or installation of Streetscaping Works on the westerly side of the portion of
Clarington Boulevard which is located on portions of Parts 11, 15 and 17 on Plan 40R-
16730 and which Streetscaping Works are more particularly described in the Final
Streetscape Report, shall be undertaken by the Owner in conjunction with Phase II of the
Development of the Lands. II
8.1 Assumption of Oblieations
Article 11 of the Servicing Agreement is amended by:
(a). deleting from paragraph 11.1 the figure "21" wherever it appears and replacing
it with the figure "60";
(b) deleting from paragraph 11.1 the last sentence and replacing it with the following:
"The Owner shall neither request nor require such consent of the Municipality or
a release of such restriction and the Municipality shall not be required to deliver
such consent or release until the Owner has delivered to the Municipality (1) thelHighway No. 2 Security, and (2) the Initial Security or the Performance
138
First Amending Agreement
Page 17
Guarantee, as the case may be, and the (3) Subsequent Initial Security or the
Performance Guarantee in respect of the Works and Streetscaping Works referred
to in paragraph 2.7, as the case may be." and
(c) adding a new paragraph 11.2 as follows:
"For the avoidance of doubt none of the provisions of paragraph 11.1 of this
Agreement shall apply so and to require Cineplex Odeon Corporation as lessee
under a lease from Clarington Place Limited dated June 4, 1996 of Parts 2,4, 8,
12, 14, 16 and 19 shown on Reference Plan 40R-16730 to enter into a direct
agreement with the Municipality pursuant to paragraph 11.1. II
9.1 Works and Their Timing
Schedule "G" is amended (1) by adding the words and figures "Subject to paragraph 2.7"
to at the beginning of clauses (c) and (d); and (2) by deleting the words "transferred
Roads' from clauses (c) and (d) and replacing them with the/ following: "Phase I
Transferred Lands and Part 1 on Reference Plan 40R -16730 and the Phase II Transferred
Lands" .
10.1 Permitted Encumbrances
The text of Schedule "X" is deleted and replaced with the following:
"A non-exclusive easement in Parts 6 and 11, shown on Reference Plan 40R-16730
which may be reserved to the Owner, its successors, assigns and invitees to permit
ingress to and egress from Parts 2, 4:18, 12, 14, 16 and 19 also shown on Plan 40R-
16730 until the aforesaid Parts 6 and 11 are dedicated as public highways pursuant to the
Municipal Act, provided that the Municipality, its employees and contractors may
interrupt the easement without cost or liability from time to time for the purposes of
constructing or maintaining Works on any portion of aforesaid Parts 6 and 11."
2. Postponement of Cbaree
The Mortgagee hereby postpones its rights under the Charge registered in the Land
Registry Office for the Land Titles Division of Durham (No. 40) as Instrument No. D424811
to the rights of the Municipality under this First Amending Agreement.
3. Time is of the &sence
Time is of the essence of this Agreement.
139
First Amending Agreement
Page 18
4. Authority to Make AlI'eement
The Owner acknowledges and agrees that the Municipality has authority to enter into this
First Amending Agreement, that every provision hereof is authorized by the law and is duly
enforceable by the Parties, and that this First Amending Agreement is made by the Municipality
in reliance on the acknowledgement and agreement of the Owner as aforesaid.
s. BindinJ: Effect and R~e:istration
This First Amending Agreement and the Servicing Agreement shall enure to the benefit
of and be binding on the Parties hereto and thefr respective successors and assigns. The Owner
and the Mortgagee consent to the registration of Notices of the First Amending Agreement and
the Servicing Agreement on the title to the Lands.
6.
Confirmation of Terms of Servicine Aereement
"
Except as specifically amended by this First Amending Agreement, the provisions of the
Servicing Agreement and the Schedules to it are hereby confirmed by the Parties hereto and
continue to govern the Parties hereto.
II
- *
"
lito
First Amending Agreement
Page 19
IN WITNESS WHEREOF the Parties hereto have hereunto affixed their
corporate seals attested by their respective proper signing officers in that behalf duly authorized.
THE CORPORATION OF THE MUNICIPALITY OF
CLARINGTON
Per: U~4~"(_/
Name: blA,..l e: H M"R6
Title: '10
Per:
perl
l j ame:
V Title:
GUENN S. WIUUSON
President
Per:
Name:
Title:
WILLSONIA INDUSTRIES LIMITED
Per:
GUENN S. WIUUSON
President
Per:
Name:
Title:
SCHEDULE" AA II
DESCRIPTION OF LANDS
ALL AND SINGULAR that certain parcel or tract of land and premises situate, lying and
being in the Municipality of Clarington, in the Regional Municipality of Durham, and being
composed of those Parts of Lots 15 and 16, Concession 1, former Township of Darlington
more particularly described as Parts 1 to 19 inclusive, on Reference Plan 40R-16730.
/
141
142
SCHEDULE "BB"
THE ~ORPORArrON OF THE MUNICIPALfTY OFCLARfNGTON
~~mr~~~~X
REPORT
Meeting:
COllBHCIl .
OatQ: APRIL 24 1995
Roportlfi:. ADM.14-95 AIe #:
Fila ,
Res. I: .
eY~LiW 'it
eubJ~
OLDER ADULT CENTRE AND HIGHWAY NO. 2 URBANIZATION WORK
Recommendations:
It is respectfully recommended that Council approve the following:
/
(1) lHAT RepOrt No. ADMIN-14-95 be received; and
(2) TIlAT Council approve amendments to the Aspen Springs Subdivision Agreement
to delete the require~ent that the Owner construct the "CPR Underpass Work" and
the requirement that the Owner deposit Letters of Credit with. the. Municipality as
security for the construction of the Work, on the conditions as outlined in this report;
and
(3 ) THAT Council accept a financial contribution from Martin Road Holdings Umited
and West BowmanviUe Developments Ltd. in the amount of $1.5 million on the
terms and conditions set out in this report; and
(4) 1HA T Council approve the construction of the Older Adult Centre, at a cost of S 1.3
million, in conjunction with the proposed Durham Region Non-Profit Housing
Authority project to be built on Temperance Street in Bowmanville; and
(5) THAT Council.commit $200,000 of said contribution of $1.5 million to the cost of
the urbanization work on Highway No.2; and
(6) THAT Council approve the provision of interim funding of Sl.3 million fl1T the Older
Adult Centre and $200,000 for urbanization work on Highway No.2 referred to in
recommendations (4) and (5) from the Hydro Resezve Fund Account; and
(7) THAT when instalmcnts are paid to the MunicipaHty in respect of the financial
contributi~>n of S 1.5 million referred to in recommendation (2) they be deposited in
the Hydro ReselVe Fund Account; and
I,
143
REPORT NO. ADMlN.14-95
PAGE 2
(8) THAT Council approve the commitment of the amount of $100,000 which is to be
paid by Markborough Properties Inc. and West Bowmanville Developments Ltd. in
respect of the extension of water service to the Gamet B. Rickard Recreation
Complex when it is paid pursuant to this report, to the cost of urbanization of
Highway No.2; and
(9) TIlAT Council approve the agreements and amending agreements recommended in
this report and pass the necessary by.laws to authorize the same being executed by
the Mayor and Cerk on behalf of the Municipality; and
(1 0) THAT the Treasurer be authorized to accept the deposit of the Letters of Credit and
return the Letters of Credit referred to in the report on the conditions set out in this
report; and
(11) THAT a copy of this report be sent to:
Markborough Properties Ine.
Martin Road Holdings Umited and West
Bowmanville Developments Ltd.
829462 Ontario Ine. and 838038
Ontario Ine.
Willsonia Industries limited and
Clarington Place l1mited
Durham Region Non-Profit Housing Authority
Older Adult Centre Conunittee
/
1. INTRODUcnON
,
1.1 During the past year the Office of the eWe! Administrative Officer has been involved
in a number of protracted negotiations involving property acquisitions, commercial
developments, recreational faclllties, etc., throughout the Municipality. Two of these
negotiations that have taken a considerable amount of Staff time are the proposed
Older Adult Centre that is being considered in conjunction with the Durham Region
Housing Authority on Temperance Street in Bowmanville, and the Urbanization of
Highway No.2 in the area between Regional Road No. 57 and Green Road in
Bowmanville. The Highway No.2 project must be addressed before development
can proceed on both the north and south side of Highway No. 2. which was the
subject of a recent. Ontario Municipal Board hearing. In both cases, Council has
directed the Chief Administrative. Officer to continue to meet with all the parties
involved, in an attempt to identify the necessary funding that would allow these
projects to go forward. We now submit the following report that addresses the issue
of funding for both projects.
144
REPORT NO. ADMIN-14-95
PAGE 3
2. OLDER ADULT CENTRE
2.1 The proposed Older Adult Centre has been the subject of numerous reports to
Council, covering the rezoning of the site -in question. as well as the. construction of
the 10,000 square foot facllity~at would form a part of the Durham Region Housing
Authority's sixty unit "singles" building proposed for the old "piano factory" site,
across from the public library on Temperance Street in Bowmanville.
2.2 As Council know~ the Housing Authority has had approval in principle from the
Ministry to construct this project on the proviso that the Municipality of Clarington
participates in the project by finandng the Older Adult Centre. The Centre would
have a gross floor area of 11,600 sq. feet, and a net floor area of 10,000 sq. feet, and
will include leasehold improvements, carpet. and air conditioning. The furniture and
appliances will be provided by the Oarington Older Adult Centre Committee, who
will be responsible for the operation of the Centre. There would be 22 surface
parking spaces. By financing the recreation Centre, the Municlpalirj would then hold
ownerShip of approximately 19% of the overall complex. This would compare to the
square footage of approx. 16 additional living units.
2.3 At a meeting held on November 28, 1994, Council passed a resolution directing the
Chief Administrative Office to go on record with the Durham Region Housiiig
Authority that the Municipality of Qarington approves, in principle, of the
preliminaIy architectural drawings showing the proposed 10,000 square foot "seniors'
centre", and as well 'That the Municipality of Clarington agrees to cover the cost of
the 10,000 square foot "seniors' centre" on the proviso that an acceptable financial
contribution by the Municipality. either by way of capital investnient or long term
lease, is agreed upon between the Housing Authority and the MunicipalitY'.
2.4 FolloWing those directions, Staff have had numerous meetings with the
representatives of the Housing Authority and have identified the Municipalitys
portion of the capital cost to be $1,300,000. Should Council agree to proceed with
this project, the Durham Regional Housing Authority would need a commitment
from the Municipality of Clarington that the amount of $1.,300,000 would be available
for. construction purposes. This then would allow the Authority to make a final
submission to the Ministry for approval of the project. As previously stated by the
Housing Authority, should Clarlngton decide not to participate in this project, the
Ministry will not approve the housing portion of the facility and the project will not
proceed. Upon Council's approval of the funding proposal identified la.ter in this
report, the Durham Region Housing Authority will immediately proceed with the
necessary approvals and would expect to see the project commence construction
within the next few months.
145
REPORT NO. ADMIN-14-95
PAGE 4
2.5 On reviewing the financing proposals that are addfessed in this report, it should be
kept in mind that there is still a possibility of obtaining some type of Provincial grant
. for the recreation portion of the project, even though we have not been successful
to date in receiving a positive ~er in this regard from our Regional
Representative of the Ministry of Touris~ Culture and Recreation. It should also
be kept in mind that should the project proceed, the Housing Authority would be
payjng approximately $150,000 to the Municipality under the Development Charges
By-law. This amount, could not be addressed as a portion of the Municipality's
funding, as it must be directed to the Development Charges Reserve Fund.
However, it should be considered a "plus" in the overall financial assessment of the
project.
3. URBANIZATION OF mGHWAY NO.2, BOWMANVILLE 1\.fAIN CENTRAL AREA
3.1 The transition of Highway No.2 from a high speed rural cross-section to a low speed
urban roadway between Green Road and Martin Road is considered essential to the
long term development of the Bowmanville West Main Central Area (B.W.M.C.A.).
3.2 In order to ensure that the Municipality of Clarington's interests in this regard are
properly addressed, the Clarington Public Works Department prepared a functional
design for the urbanization of the aforementioned section of roadway.
3.3 The functional design provided a framework for the review of proposed
developments adjacent to Highway No. 2 and the opportuni.ty to generate a phased
approach for the implementation of the required work.
3.4 1\vo developments, Markborough and Willsonia have been reviewed in this context
and works on Highway No.2 have been identified.
3.5 A section of Highway No.2 adjacent to the proposed Markborough and Willsonia
developments is super-elevated and has no longitudinal fall. These two conditions
make urbanization of the roadway at its current grade impossible.
3.6 The lack of longitudinal grade would result in ponding along proposed curb lines and
the super-elevation 4.5% is not suitable geometry for intersecting urban streets. In
order to address these issuesl a number of alternative solutions were reviewed. The
only solution which satisfactorily addressed the long tenn i:1terests of the
Municipality and permits the development of the Markborough and Willsonia lands
requires the construction of approximately 565 metres of Highway No. 2 (See
Attachment No.1). The proposed reconstruction involves the lowering of Highway
No.2 in the vicinity of Street 'B'. A low point would be established at the proposed
intersection of Highway No. 2 with Street 'B' resulting in a minimum longitudinal
grade of 0..5% and removal of the super-elevation.
146
REPORT NO. ADMIN-14-95
PAGE 5
I.
4. PROPOSED FINANCU~G OF HIGHWAY NO.2 IMPROVEMENTS
4.1 1be cost of the required road work was estimated at $1,090.000.00 in 1994 dollars.
This value does not include the cost of providing street lighting and sidewalk, as
these services were included in the Municipality's Development Charges By-law. The
amount of the estimated costs thereof of the latter services which would be the
Municipality's responsibility is $290,000. In addition, traffic signals and storm sewer
oversizing would be the responsibility of the developers. The estimated cost of traffic
signals to be located at Kings Highway and Street "E" is $100,000.
. 4.2 Financial negotiations have been ongoing regarding this project. Initially, the
adjacent developers were advised that the total cost of the portion of the project
necessitated by their developments was to be their responsibility and would be in
addition to the costs of works referred to in the servicing agreements they had made
with the Municipality.
4.3 The Municipality had entered into the following servicing agreements with the
adjacent developers (1) respecting the Markborough Shopping Centre on May 24,
1994 with 829426 Ontario Ine. and 838038 Ontario Ine. and Royal Bank of Canada
(the "Markborough Servicing AgreementU), and (2) respecting the Willsonia
development also on May 24, 1994 with WiUsonia Industries llmited and Clarington
Place Limited (the "Willsonia Servicing Agreement"). We understand that the
~hareholders of the numbered companies who are parties to the Markborough
Servicing Agreement are Markborough Properties Inc. and West Bowmanville
Developments Ltd.
4.4 Both developers have indicated that they are prepared to move ahead. with the
necessary approval process. However. considering the protracted hearings regarding
the Bowmanville West Main Central Area at the Ontario Municipal Board, the
additional cost of the urbanization resulted in both developments reaching a point
of questionable financial viability. Both developers clearly slated that should the
entire cost of urbanization be left to them, they could not proceed with their
proposed development.
4.5 Staff then made contact with the senior staff of the Durham Region Works
Department in an attempt to see if there was some way the Region could participate
financially in the urbanization project, given the fact the Highway No.2 was turned
over to Durham Region by M.T.O. on January 1, 1995. After lengthy negotiations,
the Regional Staff agreed to recommend to Regional Council that they participate
in this project to the amount of $240,000.
4.6 Once the Regional Staff commitment was obtained, further discussions took place
with the two devdopers and commitments were obtained for contributions to the
147
REPORT NO. ADMIN-l4-95
PAGE 6
project of $400,00 from Markborough Properties IDe. and West Bowmanville
Deveiopments Ltd., on the one hand and $250,000 from Willsonia, on the other
hand, for a total amount of $890,000 towards the total cost of $1,190,000, leaving a
shortfall of $300,000.
4.7 Staff recommend that Council approve amendments to the Markborough and the
Willsonia Servicing Agreements, respectively, to give effect to these commitments
unless alternative legal arrangements satisfactory to tbe Region of Durham are made
directly with the Region to secure these commitments.
4.8 With respect to the cost of storm sewer ovel'sizmg on Highway No.2, in the storm
sewer accommodating flow from the north side of Highway No.2 from the Willsonia
and other lands under Highway No.2 (the IlHighway No.2 Storm Sewer Oversizing")
to connect with the storm sewer to be constructed under the Markborough Servicing
Agreement, it is recommended that Council approve an amendment to the Willsonia
Servicing Agreement to provide that Willsonia Ind~trles Ltd. and Clarington Place
limited will fund the cost of the Highway No.2 Storm Sewer Oversizing.
5. FINANCING OF SHORTFALL IN FUNDING OF HIGHWAY NO.2
IMPROVEMENTS
/
5.1 Considering the fact that the Municipality owns land on the north side of the portion
of Highway No.2 in question, namely the municipal fire hall and the Gamet B.
Rickard Recreation Complex, both developers felt that the Municipality should
finance the additional S300,000 fu order to have the project pro~ed immediately,
thereby allowing both Markborough and Willsonia to commence construction in
1995.
5.2 In an attempt to identify additional municipal funding for the road project, Staff
revisited the past financial commitments made by all of the developers in the general
area. On reviewing same we identified two past agreements that may be a source
of funding for the Municipality to participate in the Highway No. 2 urbanization,
should Council wish to see the project and the developments proceed this year.
These are agreements respecting a water service contribution provided for in
conjunction with the rezoning to permit the Canadian Tire Store, and the Aspen
Springs Subdivision Agreement.
6. WATER SERVICE CONTRIBUTION OF WEST BOWMANVILLE
DEVELOPMENTS LTD. AND MARKBOROUGH PROPERTIES INC.
6.1 The former Town of Newcastle made an agreement dated November 26, 1990, with
Markborough Properties Inc. and West Bowmanville Developmen~ Ltd. under which
the cost to tbe municipality of extending water service to the Garnet B. Rickard
.148
REPORT NO. ADMIN-14..9S
PAGE 7
Recreation Complex would be defrayed by a contn'bution from the companies of
$300,000. The two companies benefited from this municipal expenditure by being
able to extend the water service to the Canadian Tire Store and the proposed
Markborough Shopping Centre from the Recreation Complex. One hundred and
fifty thousand dollars was paid to the Municipality on the execution of the agreement
and was deposited in the Arena Reserve Fund Account. Payment of the balance of
$150.000 is to be made when a building permit is issued for the proposed
Markborough Shopping Centre. It is secured by Letters of Credit which is deposited
with the Municipality.
6.2 Since people using the Recreation Complex will benefit from the urbanization of
Highway No. 2. Staff are of the opinion that it would be fair to apply $100,000 of the
balance of $150.000 secured by Letters of Credit deposited with the Municipality to
defray part of the cost of the improvements to Highway No.2 Accordingly, Staff
recommend that subject to the concurrence of the parties to the agreement dated
November 26, 1990 between the fonner Town of Newcastle, Markborough Properties
Inc. and West Bowmanville Developments Ltd., be amended: (1) to provide for a
reduction in the security for the payment to defray part of the cost of extending the
water service which is now deposited with the Municipality to the amount of $50,000
which is payable on issuance of a building permit for the proposed Markborough
Shopping Centre; (2) to require Markborougb Properties Inc. arid West Bowmanville
Developments Ltd. to pay $100,000 to the Municipality to defray part of the cost of
Highway No.2 improvements within 30 days following the commencement of the
constructi.on of these improvements; and (3) to require tbe deposit of new irrevocable
and unconditional Letters of Credit or amendments to Letters of Credit presently
deposited with the Municipality to secure performance of the revised obligations of
the companies. The Letters of Credit are to be issued by a bank listed in Schedule
1 of the Bank Act, in amounts, in a form and with a content satisfactory to the
Treasurer.
7. UNFUNDED COSTS OF HIGHWAY NO. 2. IMPROVE~MENTS
7.1 Should Council agree with Staff's last :ecommendation in this regard, tbe unfunded
balance of the Highway No.2 project would be $200;000 in addition to the unfunded
cost of $1,300,00 for tbe Older Adult Recreation Centre. This report will go on to
deal with the immediate and longer term sources of these amour;ts.
8. ASPEN SPRINGS SUBDIVISION AGREEMENT
8.1 In consultation with Mr. Dennis Hefferon, the Municipality's Solicitor, Staff have
reviewed the conditions of draft plan approval of the West Bowmanville
Developments Ltd. subdivision located between Green Road and Re~ional Road No.
57, south of the CPR tracks (plan 181'-86046 . Aspen Heights), relative to the
149
REPORT NO. ADMIN-14-95
PAGE 8
construction of the grade separation proposed at the intersections of future Street "e'
and the CPR and the Aspen Heights Subdivision. One of the conditions of the draft
plan approval was that lithe Owners shall agree to reserve Blocks 342 and 347 for
railway underpass and to address construction to the satisfaction of the Town of
Newcastle."
8.2 The Aspen Springs Subdivision Agreement between the former Town of Newcastle
and Martin Road Holdings Limited and West Bowmanville Developments Ltd. and
certain mortgagees provides: "With respect to the 'CPR Underpass Work', wIthout
derogating from the provisions of paragraph 5Z1 of this Agreement, the Owner
agrees at its cost to commence to construct this work no later than the day on which
an application is made for a building permit for a building which is or includes the
661st dwelling unit proposed'to be constructed on the lands and to complete the
same in accordance with this Agreement."
8.3 It should be noted that a grade separation may also be con.C\tructed by the
Municipality at the intersection of Green Road and the CPR at a future time.
8.4 Staff have considered the provisions of the Aspen Springs Subdivision Agreement as
well as the proposal for the future construction of an underp~ at the intersection
of Green Road and the CPR tracks. Although the Municipality's Final Report on
the Transportation Analysis for the Bowmanville Main Central Area Study stated,
"AIl the network alternatives show an extension of the north-south collector road
through a railway underpass to link with Aspen Springs Drive on the south side of
the CPR tracks, this could serve as an alternative access route for West MCA traffic
heading to Martin Road, instead of having to use Highway No.2. However,
consideration should be given to the impact of increased traffic on residential streets
south of the railway tracks.", the Director of Planntng and Development has some
concern with the proposal of not proceeding with the construction of the underpass.
However, staff with the exception of the Director of Plannlng and Development have
concluded that it is not necessary in order to protect the Municipality's interest in the
proper functioning of the existing and future street system both north Wld south of
the CPR trades and both east and west of Green Road that the "CPR Underpass
Work" he constructed as provided for in the Aspen Springs Subdivision Agreement.
8.5 It is recommended that conditional on financial arrangements being agreed to by
l\'fartin Road Holdings Limited, West Bowmanville Developments Ltd., 829426
Ontario Inc. and 818038 Ontario Inc. and all necessary parties executing the
agreements and depositing the securities referred to in this report, Council approve
an amendment to the Aspen Springs Subdivision Agreement to delete the
requirement that the Owner construct the "CPR Underpass Works".
"
150
REPORT NO. ADMIN-14-95
PAGE 9
8.6 Should Council agree with this recommendation, the developer of the Aspen Springs
project, through Mr. William Danie~ has agreed to make an outright contribution to
the Municipality of Clarington in the amount of $15 million, to be used by the
Municipality for the purpose recommended in this report.
8.7 Accordingly, it is recommended that Council:
(a) approve an agreement to am,end the Aspen Springs Subdivision Agreement
between the Municipality, Martin Road Holaings Umited, West Bowmanville
Developments Ltd, Robert Louis Stevens and Royal Bank of Canada dated
September 8, 1991., as amended, to delete the requirement tbat the Owners
construct the "CPR Underpass'Worklf and provide security to the Municipality
for the performance of the Owners' covenant to do so;
(b) provide in the amendment to the Aspen Springs Subdivision Agreement or if
considered appropriate by myself in consultation with the Solicitor in a
separate agreement witb Martin Road Holdings Limited and West
Bowmanville Developments Ltd. which is to be executed, prior to the
amendment to the Aspen Springs Subdivision Agreement referred to in (a),
for the payment to the Municipality $1,500,000 in fiye (5) equal annual
instaIments of $300,000 each, the first instalment to be paid on April 24, 1996;
(c) require each of the instalments referred to in (b) when paid to the
Municipality to be deposited in the Hydro Reserve Funds Account;
(d) require the deposIt with tbe Municipality's Treasurer as alternative security
for the performance of the obligations set out above unconditional and
irrevocable Letters of Credit issued by a bank listed on Schedule 1 of the
Bank Act in amounts, in a form and with a content satisfactory to the
Treasurer.
(e) authorize the Treasurer to return to the Owners the Letters of Credit
deposited with the Municipality in respect of the "CPR Underpass Works"
conditional on the alternative security set out in (d) being deposited with the
Municipality;
9. IN'IERIM FUNDING REQUIREMENTS FOR OLDER ADULTS' RECREATION
CENTRE AND $200,000 OF THE COST OF THE HIGHWAY NO. 2
IMPROVEMENTs
9.1 It is reconunended the interim funding requirements to proceed with the Adult
Recreation Centre ($1.3 million) and $200,000 of the cost of the Highway'No. 2
improvements should be obtained by accessing the Hydro Reserve Funds for the
..
151
REPORT NO. ADMIN.14-95
!
PAGE 10
amount of $1.5million, on the condition that this amount will be replaced Over the
next five years upon the payment of the $1.5 million under the revised Aspen Springs
Subdivision Agreement or the agreement between the parties referred to above.
10. TERMS OF AGREEMENTS
10.1 It is recommended all agreements to implement the recommendations contained in
the report shall contaln provisIons considered to be necessary to protect the
Municipality's interests by myself in consultation with the relevant Staff and the
Municipality's Solicitor.
11. CONCLUSION AND RECOMMENDA110NS
11.1 This report addresses the funding requirement.~ for the Older Adults' Recreation
Centre and the urbanization of Highway No.2 to permit the Markborough Shopping
Centre and the Wi1Isonia developments to be commenced this year. It is
recommended that this report approve the making of agreement~ and other actions
set out in it be approved by Council.
11.2 By adopting the recommendations of Staff Council would accomplish the construction
of the Older Adult Centre, as well as the completion of the Highway No. 2
Urbanization 'Work without having an adverse affect on the municipal budget.
,
11.3 The completion of the Highway No. 2 work would then allow the developers to
proceed with their commercial projects as an early date, resulting in a positive impact
on the munidpal assessment base. /, ,
ResPectfully submitted,
SCHEDULE "CC"
REVISED SCHEDULE J-l
WILlSONIA LANDS
STARTING ESTIMATED COSTS
Costs at Agreement Execution Stage
Clarington Boulevard
Prom Highway No. 2 to Uptown Avenue
Uptown Avenue
15 m west of Clarington Boulevard to
100m east of Clarington Boulevard
TOTAL
'.
152
$319,235.00
208.754.00
~527.989.00
"
153
SCHEDULE "DD"
HIGHW A Y NO.2 URBANIZATION ZONE
.....
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CANDLER COURT
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/DRAWN BY: JMIIDATE: MAR. 1996 I
154
DATED:
APRIL 30th., 1996
BElWEEN:
THE CORPORATION OF THE
MUNICIPALITY OF CLARINGTON
- and -
CLARINGTON PLACE LIMITED
- and -
WILLSONIA INDUSTRIES LIMITED
DEVELOPMENT AGREEMENT
The Corporation of the Municipality of Clarington
Planning Department
40 Temperance Street
Bowmanville, Ontario
L1C 3A6
File: DEV 95-064
L.A.: 02.10.95