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HomeMy WebLinkAbout90-130 TOWN OF NEWCASTLE BY-LAW 90- 130 Being a By-law to designate lands within the corporate limits of the Town of Newcastle as a site plan control area, to derme classes of development that may be undertaken without the approval of certain plans and drawings, and to delegate power and authority to the Directors of P1anning and Development and Public Works. WHEREAS it is expedient for Council to consolidate and re-enact by-laws respecting site plan control in the Town of Newcastle; NOW THEREFORE THE COUNCIL OF THE TOWN OF NEWCASTLE ENACTS AS FOLLOWS: 1. By-law 79-151 and By-law 83-15 are hereby repealed; 2. All lands located within the corporate limits of the Town of Newcastle are hereby designated as a site plan control area pursuant to Section 40 (3) of the Planning Act, 1983. (The "Act"); 3. The following are hereby defined as classes of development that may be undertaken without the approval of plans and drawings otherwise required under Section 40(4) and (5) of the Act: a) any building or structure located in a park operated by the Corporation of the Town of Newcastle, Corporation of the Regional Municipality of Durham, any Conservation Authorities established by the Government of Ontario or the Government of Canada; b) any structure erected for the purpose of flood or erosion control; c) any permitted agricultural building or structure; d) any temporary structure; e) any building or structure used by a public utility owned and operated for or by the Corporation of the Town of Newcastle, the Newcastle Hydro Electric Commission, Corporation of the Regional Municipality of Durham, or any Board or Ministry of the Province of Ontario, or the Government of Canada; t) residential buildings containing less than three (3) dwelling units; g) alterations to buildings or structures which do not alter the nature of the existing use; h) any expansion or enlargement of building or structure that is less than ten (10) square metres. 4. Pursuant to Section 40(13)(b) of the Act, the powers and authority of the Council of the Town of Newcastle under Section 40 of the Act, except the authority to derme any class or classes of development as mentioned in Section 4-(13)(a), are hereby delegated to the Director of Planning and Development and the Director of Public Works of the Town of Newcastle; 5. The Mayor and Clerk of the Town of Newcastle are hereby authorized to execute any agreement with the Town dealing with the ensuring the provision of any or all of the facilities, works or matters referred to in Section 40(7)(a), and the maintenance thereof referred to in Section 40 (7)(b), or with the provision and approval of the plans and drawings pursuant to Section 40(4) of the Act, as may be required to be made by the owner of the land with the Town as a condition of the approval of the plans and drawings referred to in Section 40(4) of the Act. 6. This By-law shall be in full force and effect upon passing thereof. By-law read a first time this 23rd day of By-law read a second time this 23 rd day of July July 1990. 1990. By-law read a third time and rmally passed t . CLERK .\ ~. DEVELOPMENT AGREEMENT MADE (in quintuplicate) this ~day of July, 2005 BETWEEN: ERHARD AND HENRIETTE WITZKE hereinafter called the "OWNER" OF THE FIRST PART - and - THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON hereinafter called the "MUNICIPALITY" OF THE SECOND PART - and - BANK OF MONTREAL hereinafter called the "MORTGAGEE" 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 Durham Land Registry Office (NoAO) as Instrument No. 0405251; AND WHEREAS the Owner proposes to renovate greenhouses including two additions and a demolition 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 Directors of Engineering Services and Planning Services have resolved to approve the said development pursuant to Section 41 of the Planning Act and 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 "A" hereto and hereinafter referred to as the said lands; AND WHEREAS the Owner has represented to the Municipality that the said lands are registered in the name of Erhard and Henriette Witzke as stated in the affidavit attached to this Agreement as Schedule 'IB"; AND WHEREAS the Owner warrants that it has entered, or will enter into an Agreement with the Regional Municipality of Durham, for the provisions of services to the satisfaction of the Director of Engineering Services of the Municipality of Clarington; .. -2- AND WHEREAS the Owner warrants that it has entered, or will enter into an Agreement with the Hydro One Networks Inc., for the provision of an electrical distribution system; NOW THEREFORE, in consideration of the mutual agreements and covenants hereinafter contained, the parties hereto agree as follows: 1. Schedule "C" includes all necessary development plans and drawings showing the site development and the size, location, elevation and exterior architectural design of the building which the Owner proposes to erect on the said lands, which have been approved conditionally on the making of this agreement by the Director of Planning Services and the Director of Engineering Services prior to the issuance of building permits. 2. The Owner agrees that no buildings or structures, other than the building as shown on Schedule "C" of this Agreement 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 as shown on Schedule "C" of this Agreement, unless otherwise approved by the Director of Planning Services and the Director of Engineering Services. 3. PARKING AND LOADING The Owner agrees to provide and maintain off-street parking and driveway access as shown on Schedule "C" of this Agreement and to do so in accordance with specifications to be approved by the Director of Engineering Services which shall include a surfacing of parking areas with gravel treated to prevent the raising of dust. Should the owner decide to surface the driveways and/or parking areas with concrete or bituminous asphalt, a site plan amendment would be required~ No parking of vehicles shall be permitted on access or driveway areas which shall be signed and maintained as fire access routes to the satisfaction of the Director of Emergency Services Department. 4. GARBAGE AND WASTE (a) The Owner agrees to 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 Director of Engineering Services and the Director of Emergency Services Department as shown on Schedule "C" of this Agreement. (b) The Owner further agrees to remove garbage and other waste materials as often as may be required by the Director of Engineering Services and the Director of Emergency Services. .' .' -3- 5. SNOW REMOVAL The Owner agrees to 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 - NOT USED 7, ILLUMINATION. NOT USED 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/or landscaping plan as shown on Schedule "e" of this Agreement. The Owner further acknowledges that the Municipality has the right to draw on the Letter of Credit with respect to the Landscaping Performance Guarantee for the Landscaping Works at any time when deemed necessary by the Director of Planning Services. 9. SIDEWALKS . NOT USED 10. ARCHITECTURAL CONTROL The Owner agrees that prior to the issuance of a building permit, submit to the Director of Planning Services for approval, a coloured schedule delineating the building materials and colours for all building and structure. The Owner further covenants and agrees that no rooftop 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 Director of Planning Services. 11. APPROVAL OF PLANS AND SPECIFICATIONS The Owner agrees that the issuance of any building permit in respect of the said lands shall be prohibited until all plans and specifications required pursuant to this I Agreement have been approved by the Municipality. 12. REGISTRATION AND ENFORCEMENT The Owner agrees that this Agreement shall be registered against the title to the said lands and that the Municipality will 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 .( ~' -4- Owner further agrees to reimburse the Municipality for all reasonable legal fees associated with undertaking the registration of this Agreement. 13. FUTURE SERVICE CONNECTION The Owner agrees to connect to sanitary sewer, watermain and storm sewer if and when these services are made available to the said lands in the future. The Owner further agrees to bear all connection and frontage charges related thereto. 14. REQUIRED SITE WORKS The Owner agrees that, prior to the issuance of any building permit for the building as shown on Schedule "e" of this Agreement, all Site Works shall be approved by either the Director of Engineering Services and/or Director of Planning Services. The Site Works shall consist of Engineering Works and Landscaping Works. 15. APPROVAL OF SITE WORKS COST ESTIMATE The Owner agrees that, prior to the issuance of any building permit for the building permit for the building identified on Schedule "C" hereto, the estimated cost of all Site Works shall be approved by the Director of Engineering Services Department, Director of Operations Department, and Director of Planning Services Department and annexed to this Agreement in the Site Works Cost Estimate on Schedule "0". The Site Works Cost Estimate shall consist of the Engineering Cost Estimate and the Landscaping Cost Estimate. The Engineering Cost Estimate shall contain the estimated costs for the construction and installation of all works within the municipal road allowance and any other related development works. The Landscaping Cost Estimate shall contain the estimated costs for the construction and installation of all landscaping and fencing for the development. The said approved Site Works Cost Estimate shall be deemed to have been included in this Agreement at the date of its original execution, whether or not it was, in fact, so included and whether or not it is, in fact, entered into Schedule "0" hereto. 16. PERFORMANCE GUARANTEE REQUIRED (a) Prior to the issuance of any authorization to commence work, the Owner shall provide the Municipality with a Performance Guarantee, in the form of cash or an irrevocable Letter of Credit issued by a chartered Canadian Bank in an amount equal to the Site Works Cost Estimate. The Performance Guarantee may be used by the Municipality as set out in Clauses 17 and 18 in the event the Owner fails to satisfactorily meet the ., -5- requirements of this Agreement in respect of the provisions of the specified Site Works annexed to this Agreement in the Site Works Cost Estimate on Schedule "0". (b) The Performance Guarantee may consist of either one or both of the Engineering Performance Guarantee and Landscaping Performance Guarantee. The amount of the Engineering Performance Guarantee shall be equal to the amount of the Engineering Cost Estimate annexed to this Agreement in the Site Works Cost Estimate on Schedule "0". The amount of the Landscaping Performance Guarantee shall be equal to the amount of the Landscaping Cost Estimate annexed to this Agreement in the Site Works Cost Estimate on Schedule "0". (c) All submissions made under Clause 16(a) of this Agreement shall be approved by the Director of FinancelTreasurer for the Municipality. . 17. USE OF ENGINEERING PERFORMANCE GUARANTEE - NOT USED 18. USE OF LANDSCAPING PERFORMANCE GUARANTEE 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 fails to construct any of the Landscaping Works required by this Agreement. If, in the opinion of the Director of Planning Services and the Director of Engineering Services, 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. Clause 16 applies in respect of such additional or amended Letter of Credit if it comprises the additional required security deposited with the Municipality. 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 Services and the Director of Engineering Services who shall give the Owner written notice of completion. The Municipality shall retain an amount equal to 20% of the Landscaping Performance Guarantee as security for 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). -6- The Landscaping Works shall be guaranteed by the Owner for a period of one year commencing on the Effective Date of Completion. 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 including the replacement all missing or dead trees, plants and vegetation and replacement of all other missing or damaged landscaping items. 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 other 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. 19. PAYMENT TO THE MUNICIPALITY (a) The Owner agrees that they are subject to the approved Development Charges By-laws of the Municipality of Clarington, Regional Municipality of Durham, Kawartha Pine Ridge District School Board, and Peterborough- Victoria-Northumberland and Clarington Separate School Board as amended or replaced from time to time. The Owner agrees to pay to the Municipality of Clarington by cash or certified cheque all required residential and/or non-residential development charges as determined by the Chief Building Official prior to the issuance of the building permit. (b) The Owner shall pay to the Municipality of Clarington by cash or certified cheque, the sum of $ N/A being a fixed payment by the Owner to the Municipality on account of the following: i). Payment in lieu of parkland dedication, hereby fixed at $ N/A ii) Contribution towards construction of $ N/A (c) The money paid by the Owner under Clause 19 (b) shall, upon payment, become the sole and absolute property of the Municipality of Clarington free from all claims of the Owners and the Owners shall not, under any circumstances, be entitled to any refund of any part of the said money, whether or not the actual cost of providing the services is less than the fixed amount paid by the Owner under Clause 19(b). 20. PERMITS The Owner acknowledges that approval of the site plan contained as shown on Schedule "C" of this Agreement does not constitute compliance with the Ontario Building Code or Ontario Fire Code. The Municipality agrees that upon the Owners complying with the provisions of this Agreement respecting approval of all plans and specifications .' -7- required herein, 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 the Ontario Building Code and 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. The Owner agrees that prior to erecting any permanent or temporary sign on the property an application for a sign permit shall be made to the Municipality of Clarington. The Municipality agrees that upon complying with the provisions of this Agreement, the provisions of the Municipality of Clarington Sign By-law 97-157, as amended and receiving approval from the Ministry of Transportation, where the property is within 400 metres of a King's Highway or Controlled Access Highway, the Municipality shall issue a sign permit. The Owner further agrees to include a clause to any Lease Agreement, advising future tenants of the requirements for a sign permit for any sign to be erected or placed on the property. The Owner agrees to include a clause in any Lease Agreement advising future tenants of the Municipality's Gate Access Policy to Municipal open space. 21. 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 s~id Agreement shall become null and void. 22. CERTIFICATION OF OWNERSHIP On the date of execution of this Agreement, if required by the Municipality's Director of Planning Services, 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. 23. TRANSFER OF LANDS On or prior to the date of execution of this Agreement, 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 .. -8- Schedule "E" hereto. All transfers referred to in this Clause 23 shall contain provisions to the satisfaction of the Municipality's solicitor, and shall be made in a registerable form. 24. TRANSFER OF EASEMENTS - NOT USED 25. REGISTRATION OF TRANSFERS The transfers referred to in Clauses 23 and 24 shall be prepared by the Owner and shall be registered at the Owner's expense, at the same time as the Plan is registered. 26. MAINTENANCE OF OIL/GRIT SEPARATOR(S) - NOT USED 27. POSTPONEMENT OF MORTGAGE The Mortgagee that is lending his mortgage to this Agreement does so 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. 28. 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. 29. 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" "Legal Description of the Lands" "Affidavit of Ownership" Schedule "e" "Site Plan" Schedule "0" "Gable Elevation and Plan View" "Site Works Cost Estimate" Schedule "E" "Lands to be Transferred" ,. .' -9- 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: .CA" ) THE CORPORATION OF THE ) MUNICIPALI OF CLARINGTON ) ) ) ) ) ) ) ) ) P tti ) ) ) ) ) OWNERS ) ) ~~~~ ~ Erhard Witzke ) ~bI4t1~ ) Henriette Witzke ) ) ) ) BANK OF MONTREAL ) ) l ~. ) Name: ) ~ UtUfA eO~ ) (PLEASE PRINT) ~~ ~ame: Title: ) ) ) ) ) ) ) CD~IL Arc. tM- Title: --3. J. 5u>< (PLEASE PRINT) Cof1ft'L A"t. f" }116f2' . .- .' SCHEDULE "A" 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 Jhe Municipality of Clarington), enacted and passed the 23rd day of July, 1990. LEGAL DESCRIPTION OF SAID 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 Part of Lot 31, Concession 3, former Township of Darlington, being all of P.I.N. 267040364. " SCHEDULE "B" THIS IS SCHEDULE "B" 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, STATEMENT OF OWNERSHIP Erhard and Henriette Witzke are the Owners of the property as described in the Schedule "A" attached hereto and as such, have knowledge of the matters hereinafter contained within this Agreement. .: .. SCHEDULE "C" 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 Clarington), enacted and passed the 23rd day of July, 1990. A copy of the Site Plan drawings, as approved for registration is on file with the Municipality of Clarington and can be viewed at 40 Temperance Street, Bowmanville in the offices of Planning Services. ." ~. SCHEDULE "0" 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 Clarington), enacted and passed the 23rd day of July, 1990. SITE WORKS COST ESTIMATE Landscaping Cost Estimate Low-lying Shrubs 24 @ $35 (all taxes included) 15% Contingency 5% Landscape Supervision Fee Total Landscaping Cost Estimate $ $ $ $ 840.00 126.00 42.00 1 ,008.00 .' .... SCHEDULE "E" THIS IS SCHEDULE "E" 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. LANDS TO BE TRANSFERRED Part 1 of Plan 40R-23310 for Pebblestone Road widening. .. . .." DATED: , 2005 AMONG: THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON - and - ERHARD AND HENRIETTE WITZKE - and - BANK OF MONTREAL DEVELOPMENT AGREEMENT The Corporation of the Municipality of Clarington Planning Services 40 Temperance Street Bowmanville, Ontario L 1 C 3A6 File: SPA 2004-028