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Home My WebLink About91-11 DN: EIRAM.BL THE CORPORATION OF THE TOWN OF NEWCASTLE BY-LAW NUMBER 91-..lJ. being a By-law. to authorize the entering into of an Agreement with Eiram Development Corporation and the Corporation of the Town of Newcastle in respect of Plan 18T-89041. The Council of the Corporation of the Town of Newcastle enacts as follows: 1. THAT the Mayor and Clerk are hereby authorized to execute on behalf of the Corporation of the TQwnof Newcastle, and seal with the Corporation's seal, an Agreement between Eiram Development Corporation and the said Corporation in respect of Plan of Subdivision 18T-89041. 2. THAT the Mayor and Clerk are hereby authorized to Accept, on behalf of the Town, any convey8nces of lands required pursuant to the aforesaid Agreement. 3. Schedule "A" attached hereto shall form part of this By-law. BY-LAW read a fll'St time this 28th day of January 1991. BY-LAW read a second time this 28th ~ of January 1991. BY-LAW read a third time and fmally passed this 28th day of January 1991. MAYOR C ~ ~ ~..~: 1 .' '\ ... , t-(_. J.-~-l Province ~V~Of ~ Ontario Document General Form 4 - Land Registration Reform Act, 1984 DYE & DURHAM co. LIMITED Form No. 985 o o .... -! 0::= od::> 0::% l-<t. cn~ E3: L.LJ Q Qr: a: 00 z: - =M :5c C . lZ ~ c::o fb I.I.i 1=_ Q -l ffi fl~.. _ ~ = .-......... ! i · (1) Registry 0 (3) Property Identifier( s) Land Titles KJ T (2) Page 1 Ofy 9' pages Block Property - ~- SSM =~ Moo U'l ON Additional: See 0 Schedule (4) Nature of Document C'-I 0-J N") Notice of Subdivision Agreement (Section 74 of the Act) (5) Consideration > ~ z .0 .._J w"Z en ::> w () i.L u. o a: o u. NA (6) Description Dollars $ New Property Identifiers Parcel 9-1, Section Con. 2, Newcastle Darlington (Bowmanville) being part of Lots 9 and 10 Concession 2, Geographic Township of Darlington Town of Newcastle, Regional Municipality of Durham designated as Part 1 on Reference Plan 10R-3790 Additional: See D Schedule Executions Additional: See Schedule D (7) This Document Conbllns: (8) Redescription New Easement PlanlSketch ! (b) Schedule for: o i Description 0 Additional Parties 0 Other ~ (8) This Document provides as follows: The Corporation of the Town of Newcastle has an unregistered estate, right, interest for equity in the land registered in the name of Eiram Development Corp.aratiaB as Parcel 9-1, Section Con. 2, Newcastle Darlington (Bowmanville) and hereby apply under Section 74 of the Land Titles Act for the entry of a Notice of Agreement in the Register for the said Parcel. J' I (9) This Document relates to Instrument number(s) (10) Party(les) (Set out Status or Interest) Name(s) Continued on Schedule L;i( ) . . . THE. CORPORATION OF .THE TOWN. . . . . . . . . OF NEWCASTLE by it solicitors . . SHIBLEY RlGHTON per. Niehelas. . . . . . . . . . . . . T. Macos Signature(s) Date of Signature Y M 0 ....~. :7:. .~~.. .~....... .119.9.1. i .04!.I.~ Nicholas T. Macos \ i:! , : . .. .. . . . . . .. . . . . . . . .. . . . . . . . . . . . . . . . . . ! . . . . . ~ . . '! . . . ! :: . . . . . . .. . . . .. . . . . .. . . . . . . . . . . . . . . i . . . . . i .. .i. . . ! i: : !:, , , (11) Address for Service 40- (12) Party(les) (Set out Status or Interest) Name(s) - ..... ... r . L1C ~AI\ Signature(s) Date of Signature Y M 0 I 1 I , " , " , " , " . . . . . . . . . .. . . .. . . . . .. . . . . . . 0.' . . .. . to. . . '. p ..0'0. . , " , " , " , " , " , " , " . . . . . . . . . . . . . . 0.. . .. .. .. . . .. . "" .. .... .... . .. .. .. .,. .... _.0 .. .. , " , " , " , " , " , " , " . . .. .. .. . . . .. .. . .. .. . .. . .... .. .. . "" .. .. .... .. .. . . .... .... .. .. .. .. ..,. .. . -,- .. . , " , " , " , " , " , " : f I (13) Address for Service (14) Municipal Address of Property (15) Document Prepared by: II Fees and Tax ~ ~ Registration Fee ;2. ~ w en ::> w () r' u. u. o a:: ~ Total ~~ not assigned Shibley Righton Barristers & Solicitors Suite 1800 401 Bay Street Toronto, Ontario M5H 2Z1 Attn: Nicholas T. Macos 10174 (12/84) , " """C\' !o ~ .J ~ AGREEMENT made as of this 3rd day of April, 1991. BE1WEEN: THE CORPORATION OF THE TOWN OF NEWCASTLE - and - BIRAM DEVELOPMENT CORP. - and- CANADIAN IMPERIAL BANK OF COMMERCE 755568 ONTARIO INC. IN TRUST AGREEMENT I '," ~\' j ) J ~ .... 1 THIS AGREEMENT made in quintuplicate as of this 3rd day of April, 1991. BETWEEN: TIlE CORPORATION OF THE TO'WN OF NEWCASTLE hereinafter called the "Town" OF THE FIRST PART, - and - EIRAM DEVELOPMENT CORP. hereinafter called the "Owner" OF THE SECOND PART - and - CANADIAN IMPERIAL BANK OF COMMERCE AND 755568 ONTARIO INC. IN TRUST hereinafter called the "Mortgagee" OF THE THIRD PART WHEREAS the lands affected by this Agreement, which are described in Schedule "A II hereto, are hereinafter called the "Lands"; AND WHEREAS the Owner warrants that it is the registered - owner of the Lands; AND WHEREAS the Owner warrants that the Mortgagee is the only mortgagee of the Lands; AND WHEREAS the Owner warrants that it has applied to the Regional Municipality of Durham, hereinafter called the Region for approval of a plan of subdivision of the Lands; AND WHEREAS to comply with the Region's conditions for such approval, the Owner has consented to enter into this Agreement with the Town; AND WHEREAS the Owner warrants that it has entered, or will enter into an Agreement with the Regional Municipality of Durham, hereinafter called the "Region" to satisfy the requirements of the Regional Municipality of Durham, financial and otherwise; AND WHEREAS the Owner warrants that it bas 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 referred to in Schedule "H" and hereinafter called "Utilities"; AND WHEREAS this Agreement i5 made pursuant to the provisions of subsection 50(6) of the Planning Act, 1983 and is authorized by By-law 91-11 passed on January 28, 1991; NOW THEREFORE WITNESSETH THAT in consideration of the premises and the covenants hereinafter expressed, and the sum of Two Dollars ($2.00) 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: f I.' 41!'\ I L-(7 ,~ '. , J - 2 - 1. INTERPRETATION AND SCHEDULES 1.1 Definitions (1) In this Agreement: (a) "Act" has the meaning assigned to it in paragraph 3.4(2) of this Agreement. (b) "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. (c) "Authorization to Commence Works" has the meaning assigned to it in paragraph 5.10 of this Agreement. (d) "Certificate of Acceptance" has the meaning assigned to it in paragraph 5.24 of this Agreement. (e) "Certificate of Completion" has the meaning assigned to it in paragraph 5.22 of this Agreement. (f) "Certificate of Release" has the meaning assigned to in paragraph 5.26 of this Agreement. (g) "Commissioner" shall mean the Commissioner of Planning for the Regional. Municipality of Durham. (h) "Comprehensive Park" has the meaning assigned to it in paragraph 4.11(1) of thie Agreement. (i) "Concession Road No.3 Rural Upgrading Work" has the meaning asigned to it in Schedule "P" of this Agreement. G) "Concession Road No.3 Urban Upgrading Work" has the meaning assigned to it in Schedule "P" of this Agreement. (k) "Cost Sharing Report" means the "Cost Sharing Report" referred to in Schedule "G" of this Agreement. (1) "Council" means the Council of the Corporation of the Town of Newcastle. (m) "Damaged Services" has the meaning assigned to it paragraph 5.19 of this Agreement. (n) "Designated Areas" are the "Designated Areas" set out in Schedule "P"of this Agreement. (0) "Development Charge By-Law" has the meaning assigned to it in paragraph 3.4(2) of this Agreement. (P) "Development Levies" has the meaning assigned to it in Schedule "D"of this Agreement. (q) "Director" means the Director of Public Works of the Town of Newcastle or his designated representative. (r) "Director of Community Services" means the Director of Community Services of the Town of Newcastle or his designated representative. " 1"\ I I c;-f \ I ' f ) .A .. - 3 - (s) "Director of Planning" shall mean the Director of Planning and Development of the Town of Newcastle or his designated representative. (t) "Biram Park" has the meaning assigned to it in paragraph 4.11(1) of this Agreement. (u) "Engineering Drawings" has the meaning assigned to it in paragraph 5.5 of this Agreement. (v) "Escrowed Transfer" has the meaning assigned to it in paragraph 2.4 of this Agreement. (w) "External and/or Oversized Services" has the meaning assigned to it in paragraph 5.27(1) of this Agreement. (x) "Grading and Drainage Plan" has the meaning assigned to it in paragraph 5.6 of this Agreement. (y) "Hydrogeologist" has the meaning assigned to it in paragraph 5.19A of this Agreement. (z) "Landscaping Plan" has the meaning assigned to it in paragraph 4.2(2) of this Agreement. (aa) "Maintenance Guarantee" has the meaning assigned to it in paragraph 3.9(1) of this Agreement. (bb) "Mearns Avenue Rural Upgrading Work" has the meaning assigned to it in Schedule "P" of this Agreement. (ee) "Mearns Avenue Urban Upgrading Work" has the meaning assigned to it in Schedule "P" of this Agreement. (dd) "Minister" means the Minister of Municipal Affairs, Ontario. (ee) "Monitoring Program has the meaning assigned to it in paragraph 5.19A(1) of this Agreement. (ff) "Noise Impact Study" means the "Noise Impact Study" which is referred to in paragraph 4.12(6) of this Agreement. (gg) "Occupancy Permit" has the meaning assigned to in paragraph 4.10 of this Agreement. (hh) "Occupancy Permit Deposit" has the meaning assigned to it in paragraph 3.15(1) of this Agreement. (ii) "Occupancy Permit Scale" has the meaning assigned to it in paragraph 3.15(2) of this Agreement. (jj) "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, (kk) "Owner's Engineer" means a professional Civil Engineer, registered by the Association of Professional Engineer of Ontario.c (11) "Park Letter of Credit" has the meaning assigned to it in paragraph 4.11(7) of this Agreement. " 1 \ t , ~ l 1 1 j, A 1 - 4 - (mm) "Park Maintenance Guarantee" has the meaning assigned to it in paragraph 4.11(9) of this Agreement. (00) "Park Site Master Plan" has the meaning assaigned to it in pargraph 4.11(1) of this Agreement. (00) "Performance Guarantee" has the meaning assigned to it in paragraph 3.6 of this Agreement. (Pp) "Phase 1 of the Development of the Lands" means the development of the portion of the Lands which is within the draft 10M plan of subdivision, a copy of which is contained in Schedule "B". (qq) "Phase Subsequent to Phase 1 of the Development of the Lands" means the development of the whole, or any portion of the Land, which are not located within the draft 10M plan of subdivision contained in Schedule "B"after such draft 10M plan of subdivision has been registered against the title to the portion of the Lands to which it applies, and if the first "Phase Subsequent to Phase 1 of the Development of the Lands" includes only a portion of the Lands which are not located within such draft 10M Plan of subdivision, the term "Phase Subsequent to Phase 1 of Development of the Lands" means the development of each portion of the Lands which is within a separate 10M plan of subdivision which is registered against the title to the portion of Lands to which it applies. (rr) "Primary Access" has the meaning assigned to it in paragraph 4.12(12) of this Agreement. (ss) "Reapproved Engineering Drawings" has the meaning assigned to it in paragraph 5.5 of this Agreement. (tt) "Reapproved Grading and Drainage Plan" has the meaning assigned to it in paragraph 5.6 of this Agreement. (uu) "Region" shall mean the Corporation of the Regional Municipality of Durham. (vv) "Reconstruction Work" has the meaning assigned to it in Schedule"G" of this Agreement. (ww) "Schedule of Works" has the meaning assigned to it in paragraph 5.8 of this Agreement. (xx) "Security for the Maintenance Guarantee" has the meaning assigned to it in paragraph 3.9(2) of this Agreement. (yy) "Solicitor" shall mean the Solicitor of the Corporation of the Town of Newcastle. (zz) "Soper Creek Erosion Works" has the meaning assigned to it in Schedule "P" of this Agreement. (aaa) "Stage Cost Estimates" has the meaning assigned to it in paragraph 5.9 of this Agreement. (bbb) "Staging Plan" has the meaning assigned to it in paragraph 5.7 of this Agreement. (ccc) "Storm Sewer Work" has the meaning assigned to it in Schedule "P" of this Agreement. . . f'~ . , I } , j A) ~ 7 - 5 - (ddd) "Stormwater Management Report" means the "Stormwater Management Report" referred to in paragraph 4.12(11) of this Agreement. (eee) "Swindells Restoration" has the meaning assigned to it in Schedule "E"of this Agreement. (fff) "Town" means the Council of the Corporation of the Town of Newcastle or any official, designated by Council to administer the terms of this Agreement. (ggg) "Treasurer" means the Treasurer of the Town of Newcastle or his designated representative. (hhh) "Tree Preservation Plan" has the meaning asigned to it in paragraph 4.1(1) of this Agreement. (iii) "Tributary Stormwater Management Works" has the meaning assigned to it in Schedule "P" of this Agreement. (jjj) "Working Drawings and Specifications" has the meaning assigned to it in paragraph 4.11(2) of this Agreement. (kkk) "Works" has the meaning assigned to it in paragraph 5.1 of this Agreement. QII) "Works Cost Estimates" has the meaning assigned to it in paragraph 5.90fthis Agreement. (2) Whether or not it so provides explicity, 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. 1.2 SCHEDULES TO AGREEMENT The following Schedules which are attached hereto, together with all provisions contained therein, are hereby made a part of this Agreement as fully and to all intents and purposes as though recited in full herein: "Legal Description of the Lands" "Plan of Subdivision" "Charges against the Lands" "Development Levies" "Transfers of Easements" "Transfers of Lands to Town andlor Cash to be Paid In Lieu Thereof" "Works Required" "Utilities and Services Required" "Duties of Owner's Engineer" "Works Cost Estimatse" "Insurance Required" "Regulations for Construction" "Use of the Lands" "Land subject to Unsuitable for Building" "Land Requiring Site Plan Approved" "Oversized andlor External Services" "Conservation Authority's Works" "Engineering and Inspection Pees" "Region's Conditions of Approval" "Tree Preservation Plan" (reduction) Schedule "A"- Schedule "B" - Schedule "C"- Schedule "0" Schedule "E"- Schedule "F"- Schedule "G"- Schedule "H"- Schedule "I" - Schedule "J" - Schedule "K"- Schedule "L"- Schedule "M" Schedule "N"- Schedule "0" Schedule "P" - Schedule "Q" Schedule "R"- Schedule tIS" - Schedule "T"- , {, <( .J .~ ' 1 ~ " ,\: I \ - 6- Schedule "un Schedule "V"- Schedule "W" Schedule "X"- "Landscaping Plan" (reduction) "Requirement from Other Agencies" "Architectural Control Standards" "Winter Road Construction" 2 qENERAL 2.1 CERTIFICATION OF OWNERSHIP (1) On the date of execution of this Agreement, the Owner shall provide the Town with a letter signed by an Ontario Solicitor and addressed to the Town 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. (2) On the date of execution of this Agreement, the Owner shall provide the Town with a letter signed by an Ontario Solicitor and addressed to the Town certifying as to the title of any land outside the limits of the said Lands, which is to be conveyed to the Town or in which easements are to be transferred to the Town pursuant to the terms of this Agreement. 2.2 COpy OF PLAN AND AGREEMENTS REQUIRED Subject to paragraph 2. lOA hereof, the Owner shall, at the time of the execution of this Agreement, provide the Town with as many copies as the Town requires of the plan of subdivision for the said Lands, which plan shall be the Plan prepared for approval by the Commissioner, the Minister, or the Ontario Municipal Board. The said Plan is attached hereto as Schedule "B" and is hereinafter called the "Plan". The Owner shall also furnish to the Town at the time of the execution of this Agreement, one copy of the said Plan containing the stamp of approval of the Region, and a copy of the subdivision agreement entered into between the Owner and the Region with respect to the said Plan if such approval and/or agreement is in existence at the time of the execution of this Agreement. If the approval or agreement with the Region is not available at the time of the execution of this Agreement, the Owner agrees to provide the Town with the Plan with the stamp of approval of the Region and a copy of the Subdivision Agreement entered into with the Region, immediately after approval is granted or the agreement signed. The Owner shall also furnish to the Town at the time of the execution of this Agreement one copy of each of the agreements entered into with the 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, or, if such agreement or agreements are not in existence at the time of the execution of this Agreement, the Owner agrees to provide the Town with a copy of each such agreement immediately after such agreement is signed. 2.3 TRANSFER OF EASEMENTS (1) On the date of execution of this Agreement, the Owner at its cost shall, deliver to the Town executed transfers of easements whether perpetual in duration or for a specified period as set out in Schedule "E" .AlI 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 Town's Solicitor, and shall be in registerable form. (2) If, subsequent to the date of registration of any plan of subdivision of the Lands or a plan(s) of subdivision of any part(s) thereof, but prior to the issuance of a building permit(s) for building(s) proposed to be constructed on a particular lot(s) or block(s), in the opinion of the Director further easements in such lot(s) or block(s) are required to be transferred to the Town, the Region of Durham, the Newcastle Hydro-Electric Commission or other appropriate authority or company for Town 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 Town, the Region of Durham, the Newcastle Hydro-Electric Commission or other appropriate authority , l :11' ~ 9 " ,.", , , - 7 - or company, as the case may be, such further easement(s) forthwith after a written request to do so is given to it by the Director. Notwithstanding the foregoing, the Director shall not request such further easement(s), if its creation would prevent the erection of a dwelling on any part of a lot or block shown on the Plan. If further easements are requested to be transferred to the Town, the Region of Durham, the Newcastle Hydro-Electric Commission, or other appropriate authority or company, as the case may be, the provisions of paragraph 2.3(1) shall apply with all necessary changes to it being considered to have been made to give effect to the intent of this paragraph 2.3( 2). 2.4 TRANSFER OF LANDS With the exception of Block 530 on Plan 18T89041, at the date of execution of this Agreement,the Owner shall deliver to the Town executed transfers, sufficient to vest in the Town absolute title in fee simple, free and clear of all encumbrances and restrictions of the lands set out in Schedule "FI/hereto. At the date of execution of this Agreement the Owner shall, deliver to the Town in escrow an executed transfer of Block 530 on Plan 18T89041 in fee simple for the purposes of a fire station, but subject to such limitation otherwise free and clear of all encumbrances and restrictions (the "Escrowed Transfer"). The delivery of the Escrowed Transfer will become complete and will be effective on the registration of the second plan of subdivision to be registered against the title to any of the Lands, provided that if at any time prior to such registration the Town Council resolves that Block 530 is not required by the Town for the purpose of a rue station, the Escrowed Transfer shall be returned to the Owner. Any tax, fee or cost which is required to be paid and which is occasioned by or results from the delivery of the transfer of Block 530 in escrow or the return of the Escrowed Transfer to the Owner, shall be paid by the Owner. The transfers referred to in this paragraph 2.4 include the dedication by the Owner to the Town of the lands that are required to be dedicated to the Town for public purposes other than for highways by the Planning Act, 1983. All transfers referred to in this paragraph 2.4 shall contain provisions to the satisfaction of the Town's Solicitor, shall be made for a nominal consideration, and shall be in a registerable form. 2.5 REGISTRATION OF TRANSFERS The transfers of easement and lands referred to in paragraphs 2.3 and 2.4 shall be prepared by the Owner and except in the case of Block 530 on Plan 18T89041, shall be registered at the Owner's expense at the same time as the Plan is registered. In such deeds and grants of easements the registered number of the Plan shall be left blank and the Owner hereby authorizes the Town to insert such Plan number after registration of the Plan. In the case of Block 530 on Plan 18T89041, the transfer shall be registered by the Owner at its expense forthwith after the occurrence of the event on which delivery thereof is conditioned as provided for in paragraph 2.4 of this Agreement. 2.6 LANDS FOR SCHOOL PURPOSES (1) The Owner shall, at the time of execution of this Agreement, deposit with the Town a letter from each and every School Board having jurisdiction over the said lands stating that arrangements satisfactory to each and every School Board have been made respecting the acquisition of any lands necessary for school purposes to serve the said Lands. (2) In the event that a School Board which has an option to acquire any lot or block within the Plan and does not exercise its option, the Owner hereby agrees to notify the Clerk of the Town in writing that the School Board has not exercised its option and the Owner hereby grants to the Town an irrevocable option to acquire such lands upon the same terms and conditions as the School Board could have acquired the property, except that the Town shall exercise the option hereby granted, in writing, within sixty (60) days of receipt of notification from the Owner that the School Board has failed to exercise its option and, the purchase of such Lands by the Town shall be completed within ninety (90) days of the exercise of its option. ~ " , \ I 1 ~ . ....' 10 - 8 - 2.7 CHARGEON LANDS The Owner hereby charges all its interest in the said Lands with the obligations set out in this Agreement. 2.8 NOTIFlCA nON OF OWNER If any notice or other document is required to be or may be given by the Town or by any official of the Town to the Owner under this Agreement, such notice shall be mailed by first class prepaid post or delivered to: Biram Development Corp. 211 North Rivermede Road Unit #7 Concord, Ontario UK 3N7. or such other address of which the Owner has notified the Town 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. 2.9 REGISTRA nON OF AGREEMENT The Owner and Mortgagee hereby consent to the registration of this Agreement or a notice of it by the Town and agree with the Town not to register or permit the registration of any document after registration of the Plan of Subdivision on any land included in the said Plan unless this Subdivision Agreement, and any deeds, easements or other documents required to be furnished thereunder, have first been registered against the title to the land included in the Plan. 2.10 RENEGOTIATION AND AMENDMENT OF AGREEMENT (1) The Owner agrees that the Town may at its option in the circumstances set out below on thirty (30) days written notice to the Owner, declare this Agreement to be subject to renegotiation, whereupon the Owner agrees not to undertake any construction or installation of any of the Works until this Agreement has been renegotiated. This Agreement may be subject to renegotiation if: (i) the Region, the Minister, or the Ontario Municipal Board approves a Plan of Subdivision for the said lands which is substantially different from the Plan attached hereto as Schedule "B"; or (ii) the Plan of Subdivision is not finally approved by the Region and registered within eighteen (18) months of the date of the execution of this Agreement; or (iii) the agreement between the Owner and the Region has not been executed at the time of the execution of this Agreement, or such agreement has been executed and is subsequently amended, and the provisions of such agreement affect materially the location or sizing of any of the Works to be supplied and installed under the terms of this Agreement; or (iv) no ccnstmction or installation of any of the Works has commenced within two (2) years from the date of registration of the plan, and failing agreement, this Agreement shall be null and void. (2) The Parties may from time to time by mutual agreement 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. . I , 1 ,"':; I ~ I ( .' , 'r t - 9 - 2.10A REPLACEMENT OF DRAFT PLAN WITII FINAL PLAN(S) The Parties hereto acknowledge that at the time of the execution of this Agreement, only a red lined copy of the Plan is in existence and all descriptions in this Agreement and the Schedules annexed hereto refer to the descriptions in the red line plan annexed hereto as Schedule "B". Upon a final plan(s) of subdivision implementing Plan 18T89041 being registered against the title to anyone or more portions of the Lands, the final plan(s) of subdivision as registered on title, shall be deemed to be substituted for the red-lined Plan with respect to the relevant portion(s) of the red-lined Plan, and all amendments necessary or requisite shall be considered to have been made to this Agreement to the descriptions and references used in this Agreement, including without limiting the generality of the foregoing, Schedules "B", "E", "F" ,"0", "N" ,"0", "P",and "Q"to replace the descriptions and references to the red-lined Plan with descriptions and references to and that are consistent with such registered final plan(s) of subdivision. 2.11 TOWN TO ACT PROMPTLY Wherever the Town, the Town's Solicitor, the Town's Treasurer or any Town 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 Town and its officials shall act reasonably. 2.12 ASSIGNMENT OF AGREEMENT The Owner shall not assign this Agreement without prior written consent of the Town and any assignment which is made contrary to this paragraph 2.12 shall not relieve the subsequent owner of any of his obligations under this Agreement. 2.13 (NOT USED) 2.14 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 and the Mortgagee covenants and agrees that in the event that he obtains ownership of the said lands by foreclosure or otherwise, he shall not use or develop the said lands except in conformity with the provisions of this Agreement. 2.15 SUCCESSORS This Agreement shall enure to the benefit of and be binding upon all of the Parties hereto, and their respective successors and assigns. 2.16 LOT/BLOCK REFERENCE NUMBERS Subject to paragraph 2.10A of this Agreement, for the purposes of this Agreement, all references to lot(s), block(s); 0.3 metre reserves, and road widenings reflect the numbering of each as shown on draft Plan 18T -89041, as approved by the Commissioner of Planning on June 28, 1990. 1. FINANCIAL 3.1 PA YMENT 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. The Owner further agrees to pay any municipal taxes which may become due in respect of the whole or anyone or more portions of the Lands in accordance with the law. . , " , \ ~ JJlI /~ - 10 - 3.2 PA YMENT OF LOCAL IMPROVEMENT CHARGES 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 Town'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 PA YMENT OF DRAINAGE CHARGES Prior to the date of the execution of this Agreement, the Owner shall pay all drainage charges assessed under the Drainage Act, R.S.O. 1980, c.126, and the Tile Drainage Act, R.S.O. 1980, c.500 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 PAYMENT OF DEVELOPMENT LEVIES (1) The Owner shall pay all "Development Levies" (as defined in Schedule "D") in the amounts and at the times set out in Schedule "D" hereto. For greater certainty, prior to the issuance of any building permit in respect of any lot or block on the Plan, the Owner shall pay all remaining Development Levies assessed against such lot or block. (2) The parties acknowledge and agree the provisions of paragraph 3.4 and Schedule "D" are not intended and shall not be considered to have the effect of exempting the Owner in whole or in part from, or making inapplicable to the Owner, or making inapplicable in respect of the development of the Lands, a development charge that after the date of this Agreement may be imposed by the Town by passing a by-law (the "Development Charge By-law") under the Development Charges Act, 1989 (the "Act"),and shall not be used as a justification for or the basis of granting the Owner a credit of any amount in determining the development charge payable by the Owner under such By-law and Act. Further, it is understood and agreed by the Parties, that the Owner's agreement to pay Development Levies pursuant to paragraph 3.4(1) and Schedule "D"in respect of the development of the Lands or any part thereof is not intended by the Parties and shall not have the effect of limiting the Owner's obligation to pay only that portion of the development charge otherwise imposed which is not in excess of the amount of the Development Levies on the date of issuance of any building permit under the Ontario Building Code Act for a dwelling(s) proposed to be constructed on the Lands that would have been payable under paragraph 3.4(1) and Schedule "D"ifthe Town had not passed a Development Charge By- law. 3.5 NOT USED 3.6 PERFORMANCE GUARANTEEREQUlRED Prior to the date of issuance of any Authorization to Commence Work, the Owner shall deposit with the Town cash or an irrevocable and unconditional letter of credit issued by a bank listed in Schedule "A" or "B" of the Bank Act, acceptable to the Town's Treasurer, and containing terms satisfactory to the Town's Treasurer. The deposit shall be in the amount which is required to secure to the Town the performance by the Owner of its covenants contained in this Agreement to construct and install the Works and certain other facilities and improvements. Except as provided in paragraph 4.11 and 5.27 of this Agreement, such cash deposit or letter of credit shall be in an amount equal to the "Works Cost Estimate" either with respect to the Lands, or with respect to the relevant stage set out in the Staging Plan for the construction and installation of the Works which either are the subject of an Authorization to Commence Work or for the issuance of which an Authorization application has been made by the Owner. (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".) 3.7 USE OF PERFORMANCE GUARANTEE .,.... , , ~ I :) , -1 I . . - 11 - The Owner agrees that from time to time the Town may appropriate the whole or anyone or more portions of the Performance Guarantee to an amount(s) which in aggregate shall not exceed the costs payable by the Owner under this Agreement in respect of the payment of which the Owner is in default at the date of the appropriation as determined by the Director. Forthwith after making any such appropriation, the Town shall give the Owner written notice thereof and the Owner shall forthwith restore the Performance Guarantee to the full amount required by this Agreement. 3.8 INDEMNIFICATION OF TOWN AND INSURANCE (1) The Owner agrees to defend, indemnify and save the Town harmless from and against all actions, claims, liabilities, losses, damage and expenses including reasonable legal fees which arise by reason of or are caused in whole or in part by the development of the said Lands or anyone or more portions thereof, or the design, construction, installation and/or maintenance, of the Works and Utilities and services required by this Agreement or any of them. The Owner shall continue to indemnify and save harmless the Town as aforesaid notwithstanding the issuance of a Certificate of Release to the Owner and notwithstanding any arrangements that may be made by the Town with any person respecting any of the aforesaid matters indemnified against. (2) The Owner also agrees to obtain and maintain the insurance and deposit the proof thereof as required by Schedule "K" of this Agreement. 3.9 MAINTENANCE GUARANTEE REQUIRED (1) From the date of issuance of a Certificate of Completion of the Works or any of them, until the date of issuance of a Certificate of Acceptance of such Works, the Owner agrees with the Town to promptly correct, remedy, repair or replace any portion or component of such Works 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 Owner shall be given written notice of any such deficiency or defect by the Director forthwith after he identifies the same. (2) Prior to the date of issuance of a Certificate of Completion of the Works or any of them, the Owner will deposit with the Town cash or an irrevocable and unconditional letter of credit issued by a bank listed in Schedule "A"or "B"of the Bank Act acceptable to the Town's Treasurer which contains terms satisfactory to the Town's Treasurer (the "Security for the Maintenance Guarantee"). The Security for the Maintenance Guarantee shall be in an amount not less than to fifteen percent (15%) of the cost of the Works in question referred to in Schedule "J" hereto. In the event that the Owner fails to perform the Maintenance Guarantee, the Town may correct, remedy, repair or replace the defective or deficient Works, portion of Works or component thereof and appropriate the whole or any part of the Security for the Maintenance Guarantee as is necessary to indemnify the Town in respect of the cost of doing so. (3) The Maintenance Guarantee expires on the date of issuance of the Certificate of Acceptance of the Works covered by the Certificate of Completion referred to in paragraph 3.9(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: (1) Storm Sewer Works. includini the Storm Sewer Work on Mearns Avenue: a minimum of two (2) years commencing upon the date of issuance of the Certificate of Completion for the Storm Sewer System and terminating upon the date of issuance of the Certificate of Acceptance for the Storm Sewer System. (2) Roads and Above Ground Services: a minimum of two (2) years from the date of issuance of the Certificate of Completion for the Roads and Above Ground Services and terminating upon the date of issuance of the Certificate of Acceptance for the Roads and Above Ground Services. (3) Tributary Stormwater Management Works. Exclusive of the So.per Creek Erosion Works: A minimum of four (4) years commencing upon the date of issuance of the .. \. t I ~ )t.j l' ..t I I ~ . , - 12 - Certificate of Completion for the Tributary Stormwater Management Works, exclusive of the Soper Creek Erosion Works, and terminating upon the date of issuance of the Certificate of Acceptance for the Tributary Stormwater Management Works, exclusive of the Soper Creek Erosion Works.. The Owner also agrees with the Town that maintenance for roads constructed by the Owner as part of Phase 1 of the Development of the Lands during the Winter shall be in accordance with the provisions of Schedule "X". 3.10 USE OF MAINTENANCE GUARANTEE The Owner also agrees that from time to time the Town 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 Town under this Agreement. The amount(s) of such appropriation shall not exceed the cost as determined by the Director of correcting the deficiency(s) or defect(s) in the Works or a portion or a component thereof, which is covered by the Maintenance Guarantee and is in question. Forthwith after the Town 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. 3.11 REQUIREMENTS FOR 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. The maximum reduction that may be permitted to be made by the Director is to an amount equal to the value of the uncompleted Works and the other facilities and improvements, as determined by the Director, plus fifteen percent (15%) of the value of the completed Works, facilities and services, also determined by the Director having regard to the Progress Certificate prepared by the Owner's Engineer in respect of the completed Works if such has been submitted to the Town by the Owner. (2) The Owner agrees that it will not require the Town to release to the Owner any unused portion of the Performance Guarantee until the following conditions are satisfied. (a) A Certificate of Completion has been issued for the Works for which such Performance Guarantee is required under this Agreement. (b) The Owner has deposited with the Town the Maintenance Guarantee applying to the Works for which the Performance Guarantee was required. (c) The Town is satisfied that in respect of the construction and installation of the Works for which such Performance Guarantee was required, there are no outstanding claims relating to such Works. 3.12 RF.llIJTREMRNTS FOR RELEASE OF MAINTENANCE GUARANTEE The Owner agrees that the Town shall not be required to release to the Owner the Security for the Maintenance Guarantee until 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 Town is satisfied that there are no outstanding claims relating to such Works. (c) The Town has received the as-built drawings for such Works from the Owner. .' , , ~ . , . .t . ( - ) - 13 - 3.13 PA VMENT OF TOWN'S COSTS (1) On the date of execution of this Agreement, the Owner shall reimburse the Town for all reasonable legal, planning, engineering and other technical advice and assistance actually incurred by the Town in connection with the preparation for and attendances at any Ontario Municipal Board hearings for the draft approval of Plan 18T-89041 and any amendments to the Town's By-law 84-63, required to satisfy a condition if approved thereof. Forthwith after written notice is given to the Owner containing reasonable particulars thereof after the date of execution of this Agreement, the Owner shall reimburse the Town for all reasonable legal, planning, engineering and other technical advice, and administrative expenses actually incurred by the Town in connection with the preparation, processing and approval of the "front-ending agreement(s)" necessary to implement paragraph 5.27 of this Agreement. (2) Forthwith after written notice is given to the Owner containing reasonable particulars thereof, the Owner shall reimburse the Town 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 Town. (3) After giving reasonable notice to the Town, the Owner may inspect, during regular business hours, such accounts, invoices, time records and other documents and calculations of charges for which the Town is requiring reimbursement pursuant to the paragraphs 3.13 (1) and 3.13 (2). (4) The Owner shall pay to the Town for all estimated engineering and inspection costs in accordance with the provisions of Schedule "R" forthwith after a written demand therefor is given to the Owner by the Town. 3.14 UNPAID MONlF,,4ii; Except as otherwise provided in this Agreement, the due date of any sum of 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 Town 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 Town taxes which are in arrears at the date on which the default in question commences. There shall be added to the interest so calculated and payable an amount which is equal to the late payment charge which may be added to Town tax arrears payable by a ratepayer of the Town at the date on which the default in question commences. 3.15 OCCUPANCY PERMIT DEPOSIT (1) Prior to the date of issuance of the first building permit for a dwelling proposed to be constructed on the Lands, the Owner shall deposit with the Town an irrevocable and unconditional letter of credit issued by a bank listed in Schedule "A "or Schedule "B"of the Bank: Act acceptable to the Town's Treasurer, in the amount of twenty thousand dollars ($20,000.00) (the "Occupancy Permit Deposit") to secure the performance of the Owner's covenant to the Town that occupancy of any dwelling within Phase 1 of the Development of the Lands will not take place before an "Occupancy Permit" (defmed in paragraph 4.10) is issued by the Director of Planning in respect of such dwelling pursuant to paragraph 4.10. The letter of credit shall contain terms satisfactory to the Town's Treasurer. In the event that occupancy of dwelling occurs before the date of issuance of an Occupancy Permit contrary to the provisions of paragraph 4.10, the Town may draw upon and appropriate from the Occupancy Permit Deposit the amount necessary to permit the Town to comply with the requirements of paragraph 4.10 on the Owner's behalf and at the Owner's cost. In the event that the Town so appropriates the whole or any part of the Occupancy Permit Deposit, forthwith after it is given written notice of the amount of the appropriation, the t" t , -rf ,ti 1 . .t 1 - 14 - Owner shall restore the Occupancy Permit Deposit to the full amount of twenty thousand dollars ($20,000.00). The Occupancy Permit Deposit or the unused portion thereof shall be returned to the Owner at such time as the last dwelling which may be constructed on Phase 1 of the Development of the Lands is permitted to be occupied pursuant to an Occupancy Permit. If a letter of credit is deposited as the Occupancy Permit Deposit, the Town agrees to permit the Owner or a purchaser of a lot or block in the draft 10M plan of subdivision contained in Schedule "B" to replace the letter of credit from time to time, provided that at all times the Occupancy Permit Deposit is maintained as is required by this paragraph 3.15(1). Following any such permitted replacement of a letter of credit, the Town will return the replaced letter of credit to the Owner or to the person for whom it was issued, as may be appropriate. (2) The Occupancy Permit Deposit requirement referred to in paragraph 3.15(1) is based on the following "Occupancy Permit Scale" of the Town which is current on the date of execution of this Agreement: up to 50 lots 51 to 100 lots 101 to 250 lots 51 to 500 lots over 500 lots $10,000.00 $15,000.00 $20,000.00 $30,000.00 $50,000.00 The Owner agrees with the Town that the Town in its discretion may amend its Occupancy Permit Scale from time to time. (3) Prior to the issuance of a building permit for the first dwelling proposed to be constructed in each Phase Subsequent to Phase 1 of the Development of the Lands, the Owner will deposit with the Town an Occupancy Permit Deposit in the amount produced by applying the Town's Occupancy Permit Scale which is current at the date on which the Occupancy Permit Deposit is required to be lodged with the Town to the number of lots within the Phase in question. The provisions of paragraph 3.15(1) shall apply in respect of the Occupancy Permit Deposit for each Phase Subsequent to Phase 1 of the Development of the Lands, with all necessary changes thereto being considered to have been made to give effect to the intent of this paragraph 3.15(3). 4. PLANNING 4.1 TREEPRESERVATIONPLAN (1) Prior to the issuance of any Authorization to Commence Works the Owner shall have obtained the written approval of the Director of Planning of a plan for the preservation of trees on the said Lands (the "Tree Preservation Plan ") which shows: (a) the location and approximate size of all existing trees over 30.5 cm in circumference at 1.5 m above the ground; and (b) the location of all existing trees referred to in subparagraph (1) hereof intended to be removed during the development of the said Lands. (2) No work shall be done or caused or permitted to be done by the Owner to remove, destroy or damage any tree existing at the date of this Agreement. No existing tree shall be removed until the Tree Preservation Plan is approved by the Director of Planning and thereafter an existing tree may be removed only if permitted by the Tree Preservation Plan. The Owner agrees to comply with the approved Tree Preservation Plan. In the event that any tree required to be preserved by the approved Tree Preservation Plan is removed, destroyed or damaged, the Owner at its expense shall replace that tree with a tree of a height, calliper and species as determined by the Director of Planning in his discretion. (3) The Parties acknowledge that the approved Tree Preservation Plan for the purposes of this Agreement is the Tree Preservation Plan contained in Schedule "T". , ',' . '", I -1V l7 " .. ' - 15 - 4.2 LANDSCAPING PLAN AND LANDSCAPING REOUQmMENTS (1) Prior to the date of issuance of any Authorization to Commence Works located within Phase 1 of the Development of the Lands, the Owner shall obtain the written approval of the Director of Planning and the Director of Public Works to a "Landscaping Plan" (as hereafter defined) for such Phase. (2) Prior to the execution of this Agreement, a draft Landscaping Plan for Phase I of the Development of the Lands, showing, amongst other things, boulevard road areas and vegetation, and trees to be planted thereon shall be prepared by a qualified landscape architect acceptable to the Director of Planning and the Director of Public Works and who shall be retained by the Owner at its cost. The draft Landscaping Plan shall conform with and implement the Town's landscaping design criteria, as amended from time to time and the provisions of this Agreement. When the draft Landscaping Plan for Phase 1 of the Development of the Lands has been settled to the satisfaction of the aforesaid Directors and approved by them, it is the "Landscaping Plan" for such Phase for the purposes of this Agreement. (3) The Parties acknowledge that the Landscaping Plan contained in Schedule "U" is the Landscaping Plan for Phase 1 of the Development of the Lands. (4) Prior to the date of issuance of any Authorization to Commence Works which are located within a Phase Subsequent to Phase 1 of the Development of the Lands, the Owner shall obtain the written approval of the Director of Planning and the Director of Public Works to a draft Landscaping Plan for each such subsequent Phase, and the provisions of paragraph 4.2 (1) shall apply with all necessary changes thereto being considered to have been made to give effect to the intent of this paragraph 4.2 (4). (5) The Owner agrees at its cost to satisfy the following requirements: (a) All lots in Urban Areas shall be sodded and all lots in Rural Areas shall be sodded or seeded, as may be required by the Director of Planning, within one (1) year of occupancy of the dwellings. (b) A minimum of one (1) tree per lot shall be planted on the street allowances in accordance with the provisions of this paragraph 4.2(5) and the Landscaping Plan for Phase 1 of Development of the Lands and the Landscaping Plan for each Phase Subsequent to Phase 1 of the Development of the Lands. (c) All trees shall be a minimum of 3.5 meters in height and 6 cm in calliper, staked and bagged. (d) Screen planting and fencing shall be provided between residential uses and other uses in accordance with the Town's landscaping design criteria and the relevant Landscaping Plan. (e) Fencing, other than noise fencing the height of which is specified in paragraph 4.12(9)(a)(i), shall have a minimum height of 1.8 metres. Chain-link fencing is not permitted except in areas abutting walkways and then only in accordance with the Town's landscaping design criteria and the relevant Landscaping Plan. (:t) 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. (6) The Owner agrees at its expense to provide and install trees, vegetation and fencing and to satisfy the other requirements of the Landscaping Plan for Phase 1 of the Development of the Lands and the relevant Landscaping Plan for each Phase Subsequent to Phase 1 of the Development of the Lands expeditiously during the construction of buildings in the Phase in question. Any default by the Owner in , 'i .. ' ~ 18" . . ' .' , I - 16- satisfying the requirements of this paragraph 4.2 may be remedied or corrected by the Town at the Owner's cost. Without limiting the Town's rights under any other provision of this Agreement, the Owner acknowledges and agrees with the Town that the Town may appropriate a portion of the Performance Guarantee to indemnify the Town 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. 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 Owner agrees that the said Lands shall not be used for any purpose other than the purpose set out in Schedule "M" ,provided that such purpose is permitted by the Town's By-Law 84-63, as amended from time to time. 4.4 LAND UNSUlTABI.E FOR BIm.DING The Owner agrees that the lots and blocks within the Plan which are set out in Schedule "N" are unsuitable for building purposes. The Owner will not make or cause or permit an application to be made for a building permit for the construction of any structure on any such lot or block until the conditions set out in Schedule "N" for such lot or block have been satisfied to the approval of the Director of Planning and the Director of Public Works and! or any other authority having jurisdiction in respect of the matter. The Owner further agrees to maintain the lots and blocks set out in Schedule "N" in a condition acceptable to the Director of Planning. 4.5 LAND REQUIRING SITE PLAN The Owner agrees that an application for a building permit in respect of any lot or block within the Plan which are set out in Schedule "0" shall be made until the Owner has entered into a Site Plan Agreement with the Town respecting the development of such lot or block under Section 40 of the Planning Act, 1983, and unless the application for such building permit complies in all respects with the terms of the said Site Plan Agreement. 4.6 REQUIREMENTS FOR BIm..DING PERMITS Neither the execution of this Agreement by the Town, nor the approval by the Town either of the Plan or a fmal plan of subdivision either for Phase 1 of the Development of the Lands or for any Phase Subsequent to Phase 1 of the Development of the Lands, nor the issuance of any Certificate of Acceptance of Works, constitutes a representation or promise or 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 agrees with the Town that 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 for the purposes of the Town, the Region of Durham or the Newcastle Hydro-Electric Commission or for the purpose of a Utilities and services referred to in Schedule "H", or for the purpose of drainage in the lot or block in respect of which an application for a building permit(s) is made, have been transferred to 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). ~ ." , I 'i , . J I ~ /1 - 17 - (c) All of the Works required to be constructed and installed under roads referred to in clause 4.6(b) have been constructed and installed to the satisfaction of the Director; (d) A Schedule of Works for the construction and installation of the Tributary Stormwater Management Works, exclusive of the Soper Creek Erosion Works, has been prepared by the Owner's Engineer and approved by the Director. (e) The Owner is proceeding with the construction and installation of the Tributary Stormwater Management Works, exclusive of the Soper Creek Erosion Works, in accordance with the approved Schedule of Works. (t) All of the Utilities and services required to be constructed and installed pursuant to Schedule "H" have been constructed and installed and have been accepted by the Newcastle Hydro-Electric Commission and/or the authority or company having jurisdiction over such Utilities or services. Alternatively, the Town has received written confirmation from such Commission, authority and/or company, as the case may be, that sufficient fmanciaI 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 or services if the Owner fails to construct and install them. (g) The Owner has provided the Director of Planning with a paper draft of the registered plan of the subdivision of the portion of the Lands in respect of which the application for a building permit(s) is made. The Owner shall provide the Director of Planning with a mylar copy of such registered plan of subdivision forthwith after it is made available to the Owner by appropriate Land Registry Office. (h) The development levies required to be paid by the Owner to the Town pursuant to paragraph 3.4 and Schedule "D"have been paid in respect of the lot or block in the Plan for which the building permit is applied. (i) The Owner has deposited with the Town the Occupancy Permit Deposit as required by paragraph 3.15 of this Agreement and it is in good standing. (j) If the application for a building permit is for a building proposed to be constructed on any lot or block set out in Schedule "N" ,the Owner has fulfilled the conditions with respect to the development of such lot(s) or block(s) as set out in paragraph 4.4 of this Agreement. (k) If the application for a building permit is for a building proposed to be constructed on any lot or block as set out in Schedule "0", the Owner has entered into a Site Plan Agreement under Section 40 of the Planning Act, 1983 with respect to the development such lot(s) or block(s) in accordance with paragraph 4.5 of this Agreement. (I) The Performance Guarantee and in all cases required by this Agreement, the Security for the Maintenance Guarantee provided for in this Agreement has been deposited with the Town and is in good standing, and the Owner has deposited with the Town a separate letter of credit in accordance with paragraph 3.6 of this Agreement, for the Owner's share of the cost of the Stormwater Management Works, and the Owner's share of the cost of the Soper Creek Erosion Works, and except as provided in paragraph 5.27(10), the sidewalk contribution on Liberty Street, each in the amounts specified in Schedule "I"and approved by the Director of Public Works. (m) 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(8) 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) and block(s) in question and the proposed access thereto conforms with the Grading and Drainage Plan and , . . . ." . I w f~ t /,7.c? . , - 18 - the lot grading plan approved by the Director for the particular lot(s) or block(s) as well as with the Town's Design Criteria and Standard Detail Drawings. (n) The Owner has erected or caused to be erected a sign displaying all roads, lots and blocks within the approved Plan sufficient to illustrate the future housing types and distribution, the location of any park, open space, school or commerciaI blocks proposed on the said Lands, as well as all future uses for lands which abut the said Lands as identified in an approved Official Plan, Neighbourhood Plan or Hamlet Development Plan and/or by any approved draft plan of subdivision of such abutting lands. (0) (i) The Owner has constructed access routes to the subdivision in satisfaction of the requirements of subsection 3.2.5.2(6) of the Ontario Building Code and has installed all necessary watermains and hydrants which are fully serviced. (ii) The Owner has agreed with the Town 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 subsection 2.5.1.20f the Ontario Fire Code, storage of combustible waste will be maintained in accordance with subsection 2.4 .1.1. of the Ontario Fire Code, and open burning will not occur contrary to subsection 2.6.3.4.of the Ontario Fire Code. (ill) The Owner has agreed with the Town to comply with the Ontario Fire Code with respect to Combustible Waste (subsection 2.4. 1. 1) and Open Burning (subsection 2.6.3.4). (iv) The Owner has agreed with the Town to have regard for the "Guidelines to Fire Prevention" published jointly by the Ontario Home Builder's Association and the Toronto Home Builder's Association in respect of construction of dwellings. (P) The Owner has provided written confmnation to the Town that all dwellings to be erected on Phase 1 of the Development of Lands or a Phase Subsequent to Phase 1 of the Development of the Lands in which the lot(s) and block(s) in question is located, satisfy the architectural control standards contained in Schedule "W" to this Agreement. (q) The Owner has satisfied the requirements of paragraph 4.12 of this Agreement. 4.7 MODEl. HOMES (1) Notwithstanding the provisions of paragraph 4.6 of this Agreement, the Owner may apply for building permits for model homes to be used for sales display purposes which it proposes to construct on not more than ten percent (10%) of the total number of lots within the registered plan of subdivision, other than the draft finaI plan of subdivision contained in Schedule "B", on which the proposed model homes are to be located and on the draft finaI plan of subdivision contained in Schedule "B" ,not more than twenty-five (25) model homes, provided that: (a) Each such application is in conformity with all by-laws of the Town, the Ontario Building Code Act and the Ontario Building Code. (b) All building permit fees, Occupancy Permit Deposits and the Development Levies provided for in this Agreement have been paid to or deposited with the Town as is required by law and this Agreement. (c) The Owner has satisfied the Director that the final grades of the lots are appropriate for the proposed model home(s) and that such final grades are in compliance with the Grading and Drainage Plan. . . . . . I , " ,l , , , . , ~ ~( - 19 - (d) The Owner has complied with the provisions of paragraphs 4.6(m) and 4.6(p) of this Agreement. (2) Prior to the date of issuance of any building permit for a model home(s), the Owner agrees with the Town that the Owner will obtain the approvaI of the Director of the proposed access to the model home(s) in question. In each case, such access shall be to the satisfaction of the Director and the Town's Fire Chief. (3) The Owner agrees that any model home(s) constructed on the Lands shall be used for sales display purposes only and shall not be occupied for any residential purpose until such time as the provisions of paragraphs 4.6 and 4.10 of this Agreement have been complied with. If such model home(s) is occupied for residential purposes contrary to the provision of this paragraph 4.7(3), then without derogating from any rights the Town may have under this Agreement, a statute, a regulation, or a by-law, the provisions of paragraph 3.15 shall apply and shall be complied with by the Owner on each occasion that such unauthorized occupation takes place. (4) The Owner understands and agrees with the Town that if the Owner constructs or causes or permits any person to construct one or more model homes on any part of the Lands prior to the day on which the watermains and hydrants on the Lands or any part of them are fully serviced and operationaI for fire protection purposes to the satisfaction of the Town's Fire Chief, the construction and/or use of the model home(s) is entirely at the risk of the Owner. The Owner further agrees with the Town to save the Town harmless and indemnify the Town from and against all actions, claims, liabilities, losses, damages and expense, including reasonable legal fees, which arise by reason of construction and/or use of such model home(s), and the provisions of paragraph 3.8(1) shall apply with all necessary changes to it being considered to have been made to give effect to the intent of this paragraph 4.11 (4). 4.8 ARCHITECTURAL CONTROL STANDARDS (1) The Owner agrees that all dwellings to be erected shall satisfy the Architectural Control Standards contained in Schedule "W" to this Agreement. 4.9 RFl1IJIREMF~ FOR SALE OF LANDS The Owner agrees not to sell the Lands or anyone or more portions of the Lands until the following conditions are satisfied: (a) The transfers of easement referred to in paragraph 2.3 have been registered in accordance with paragraph 2.5. (b) Where a building permit has not been issued in respect of a lot or block shown on the Plan which is proposed to be sold, the Owner has obtained from the prospective purchaser an enforceable covenant made directly with the Town by which such purchaser agrees with the Town that prior to the issuance of a building permit for a building on the land in question, he will deliver to the Town, the Newcastle Hydro- Electric Commission, other authority and/or company, as the case may be, any transfer(s) of easement as in such lot or block which are required for Town, Region of Durham and Utilities services or drainage purposes as determined by the Director forthwith after the written request by the Director therefor is given to the Owner. (c) The Owner has obtained from such prospective purchaser of a lot or block, a licence to permit the Owner and/or Town, to enter on the lot or block in question in order to perform the Owner's obligations under this Agreement and to permit the Town 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 credit required by this Agreement have been deposited with the Town and all letters of credit deposited with the Town are in good standing. '; . . " . ~ '?-<-- :1' ..,' - 20- (e) The Owner has included in the agreement to purchase the Lands or the lot(s) on block(s) on the Plan 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 paragraphs 4.12(9)(e), 4.12(9)(t) and 6 in respect of the obligations of subsequent owners. 4.10 REOIJlREMENTS FOR OCCUPANCY PERMIT (1) Notwithstanding the requirements of any statute, regulation or by-law respecting the issuance of any permit authorizing or permitting the occupancy of any building, the Owner shall not occupy or cause or permit any building on the said lands to be occupied without the prior written permission of the Town (the "Occupancy Permit") having been given. In addition to satisfying the other requirements of this Agreement, an Occupancy Permit shall not be issued to any person for any building until the following requirements are satisfied: (a) All of the roads which are required to be constructed under this Agreement and which will provide access to such building, have received the application of the base course of asphaIt, to the written satisfaction of the Director and the required street lighting system has been installed and energized, all at the cost of the Owner. (b) All of the storm drainage system required to be constructed and installed to service such building has been constructed and installed to the written satisfaction of the Director, and such building has been connected thereto. (c) All of the Utilities and services, with the exception of telephone and cable T.V., which are required to be constructed, installed and connected to the building pursuant to Schedule "H" ,have been so constructed, installed and connected to the written satisfaction of the Director, the Newcastle Hydro-Electric Commission or the authority or company having jurisdiction over such Utilities and services, as is appropriate. (d) The building has been connected to and is serviced by a water supply and sewage disposal system to the written approval of the Region of Durham. (e) Either the Owner's Engineer has provided the Director with his written certification that the lot or block, on which such building is located has been developed in conformity with the Grading and Drainage Plan, or the Owner has been given written approvaI by the Director to vary the requirements of the Grading and Drainage Plan with respect to the lot or block in question. (t) The building has been finally inspected and approved pursuant to the Ontario Building Code Act, the Ontario Building Code and the Plumbing Code. (2) The Owner agrees with the Town that prior to the issuance of a "Temporary Occupancy Permit" referred to in paragraph 4.10(3), the Owner, through its qualified acoustic engineer approved by the Director, has confirmed to the Director of Planning in writing that the dwelling in question has been constructed in accordance with the "Noise Impact Study" referred to in paragraphs 4.12(6) and 4.12(9) of this Agreement. (3) Notwithstanding the provisions of paragraph 4.10(1)(e), the Owner shall be issued a "Temporary Occupancy Permit" to permit the occupancy of a dwelling in the event the Owner establishes to the satisfaction of the Director that it has not been able to comply with the requirements of paragraph 4.10(e) by reason of seasonaI, weather or other conditions which are considered by the Director in his discretion to be beyond the control of the Owner. Prior to the commencement of a permitted temporary occupancy of a dwelling, the Owner shall establish to the satisfaction of the Director of Planning that the provisions of paragraphs 4.10(1)(a), (b), (c), (d) 'I . . ., ' ];V -;Z3 . . . . .,' I - 21 - and (t) have been satisfied. The Owner also agrees to provide to the Town the written certification required by paragraph 4.1O( e) within one (1) year from the date of the commencement of the temporary occupancy of the dwelling pursuant to a Temporary Occupancy Permit. Until such written certificate is provided to the Town, the Owner agrees that the Town may retain the Occupancy Permit Deposit provided for by paragraph 3.15 of this Agreement. 4.11 REOIJTREMENTS FOR PARK (1) Not later than the expiry of the forty-five (45) day period following approval of the draft Plan pursuant to Section 50 of the Planning Act, 1983, and in any event prior to the issuance of the Authorization to Commence Works pursuant to paragraph 5.10 of this Agreement, the Owner shall prepare and submit to the Director of Community Services for his approvaI a concept plan for the development of both Block 529 on Plan 18T89041, called for the purposes of this Agreement, (the "Eiram Park") and the abutting proposed park site as determined by the aforesaid Director. (The combination of Block 529 and the abutting proposed park site are called the "Comprehensive Park". The aforesaid master plan for their development is called the "Park Site Master Plan"). The Park Site Master Plan shall show the location of all active and passive recreation areas, facilities and equipment, vegetation including trees, landscaping, accesses, adjacent proposed uses and such other features that are directed to be included in it for the Comprehensive Park by the aforesaid Director by written notice given to the Owner. (2) Not later than the expiry of the forty-five (45) day period following the day on which the Director of Community Services gives written notice to the Owner that he has approved the Park Site Master Plan with any modifications thereto that the Director considers to be appropriate, the Owner will prepare and submit for the aforesaid Director's consideration and approval a detailed park layout plan, a play area layout plan, a grading plan, vegetation and tree planting plan, plumbing and irrigation plan, a plan providing for the construction and installation of other necessary services including drainage and electrical services, a furniture, equipment and flXtures plan, any necessary shop drawings, detailed specifications, and a construction and installation schedule for and respecting the Eiram Park, all of which shall be prepared to standards and have a form and content satisfactory to the aforesaid Director. (These plans, drawings and specifications collectively are called the "Working Drawings and Specifications"). (3) The Owner shall not commence the construction and installation of the Biram Park until the Director of Community Services has given the Owner written notice that he has approved the Working Drawings and Specifications, with or without such changes as the Director may require to be made to them or any of them. (4) Not later than the day preceding the day on which the Director of Community Services gives written notice to the Owner that he has approved the Working Drawings and Specifications and authorizes the Owner to commence construction and installation of the Biram Park in accordance therewith, the Owner shall obtain the insurance required by paragraph 4.11(13) and deposit with the Town's Treasurer a certificate that such insurance has been obtained before such construction and installation is commenced. The Owner in good faith shall commence and proceed to complete the Biram Park with reasonable expedition in accordance with the approved Working Drawings and Specifications so that the construction and installation of the Eiram Park will be completed no later than September 1, 1992. (5) The Owner agrees with the Town that at no time before or after the commencement of the construction and installation of the Biram Park shall the Owner store or cause to permit any other person to store topsoil and/or building materials on any portion of Block 529 on Plan 18T89041. The Owner will keep the Block 129 in clean condition at all times during the construction and installation of the Eiram Park and until it is accepted by the Town in accordance with paragraph 4.11(8). (6) The provisions of paragraphs 5.12,5.13,5.14,5.15,5.16,5.17,5.18,5.20,5.24,5.25 and 5.26 of this Agreement shall apply in respect of the construction and installation, and " , . .. . ~ ^'1 , :1 ..; I - 22 - the completion and acceptance of the Biram Park, with all necessary changes to such paragraphs being considered to have been made to give effect to the intent of paragraph 4.11. (7) The Parties acknowledge that the current estimated cost of the construction and installation of the Biram Park is three hundred and seventy nine thousand five hundred dollars ($379,500.00). Prior to the issuance by the Town's Chief Building Official of a building permit for the first dwelling proposed to be constructed on any of the Lands within the Plan, the Owner shall deliver to the Town's Treasurer an unconditionaI and irrevocable letter of credit in the amount of three hundred and seventy nine thousand five hundred dollars ($379,500.00) (the "Park Letter of Credit") issued by a bank listed in Schedule "A" or Schedule "B" of the Bank Act and acceptable to the Town's Treasurer. The letter of credit shaII contain terms satisfactory to the Town's Treasurer. On the day following the day on which the Director of Community Services gives written notice to the Owner that the Biram Park has been completed in accordance with the approved Working Drawings and Specifications, the amount secured by the Park Letter of Credit may be reduced to such lower amount as may be considered by the aforesaid Director, in consultation with the Town's Treasurer, to be sufficient to provide adequate security to the Town that the Performance Guarantee for the Eiram Park will be performed by the Owner from the date of the aforesaid notice of completion until written notice is given to the Owner that the Eiram Park has been accepted by the Town in accordance with paragraph 4.11(8). The Park Letter of Credit is deemed to be a Performance Guarantee and a Security for the Maintenance Guarantee for the Biram Park. (8) The Owner agrees with the Town that the Biram Park shall not be accepted or deemed to be accepted by the Town until (1) the Director of Community Services has given the Owner written notice that the construction and installation of the Biram Park in accordance with the approved Working Drawings and Specifications has been completed, and (2) after the later to expire of the components of the "Park Maintenance Guarantee" (as hereafter defmed), to expire expires, the Town has given the Owner written notice that the Town has accepted the Biram Park. (9) The Owner agrees to replace at its cost any vegetation or trees which die or deteriorate significantly in quality in the opinion of the Director of Community Services at any time during the period of one (1) year following the day on which the vegetation or trees in question are planted. In each case the replacement shall be installed as soon as is reasonably practicable after the aforesaid Director gives written notice to the Owner requiring it to do so. The Owner also agrees to correct any deficiencies or defects or defaults in respect of the installation of any fixtures, furniture, equipment, installations, and! or services which are or should have been constructed or installed by the Owner on the Biram Park in accordance with the approved Working Drawings and Specifications and in respect of which the aforesaid Director gives the Owner written notice of a deficiency, defect or default, provided that a deficiency or defect shall be corrected or remedied by the Owner forthwith after written notice thereof is given to the Owner by the aforesaid Director. The Owner's responsibility to correct a deficiency or defect a fIXture, furniture or equipment terminates one (1) year following the completion of the installation of the fIXture, furniture or equipment in question. (The Owner's covenants under this paragraph 4.11(9) in respect of both its components of (1) vegetation and trees and (2) defects and deficiencies are called the "Park Maintenance Guarantee"). (10) With regard to insurance in respect of the construction and installation of the Biram Park, the provisions of Schedule "K" to this Agreement shall apply with all necessary changes thereto being considered to have been made to make them applicable in respect of the construction and installation of the Biram Park and performance of the Park Maintenance Guarantee, provided that the aforesaid insurance shall be maintained until the Director of Community Services gives the Owner written notice pursuant to paragraphs 4.11 (8) that the Town has accepted the construction and installation of Biram Park. (11) The provisions of Schedule "L" to this Agreement shall apply in respect of the construction and installation of the Biram Park with any necessary changes thereto being considered to have been made to give effect to the intent of this paragraph 4.11. , . " Ij .' , , , ~ ^-) - 23 - (12) The Owner agrees with the Town that the construction and installation of the Biram Park, with the exception of the plumbing, drainage and the irrigation systems, shall at all times be under the supervision of a qualified landscaped architect or qualified architect, approved by the Director of Community Services, who shall be retained by the Owner and who shall provide the aforesaid Director with his certificate that the Biram Park has been constructed and installed in accordance with the approved Working Drawings and Specifications forthwith after he is of the opinion that the construction and installation of the Biram Park has been so completed. (13) The design, construction and installation of the plumbing, drainage and irrigation system shall be under the supervision of the Owner's Engineer who shall provide the aforesaid Director with his certificate that the plumbing, drainage and irrigation systems of the Biram Park have been completed in accordance with the approved Working Drawings and Specifications forthwith after he is of the opinion that they have been so completed. (14) The Owner agrees to transfer to the Town an easement for Temporary Park Access from Swindells Street in accordance with Schedule liE". (15) The provisions of paragraphs 3.6,3.7,3.9,3.10,3.11 and 3.12 of this Agreement shall apply with the necessary changes thereto being considered to have been made to give effect to the intent of this paragraph 4.11. (16) The provisions of paragraph 5.27(9) of this Agreement apply in respect of the cost of the provision, construction and installation of the Biram Park with all necessary changes to it being considered to have been made to give effect to the intent of this paragraph 4. 11(19). 4.12 SPECIAL CONDIDONS (1) In addition to complying with the provisions of paragraph 4.6 of this Agreement, the Owner agrees with the Town that it will not apply for a building permit to construct a building on any lot or block on the Plan on which a structure is then erected in whole or in part without first demolishing and removing the same at the Owner's cost. (2) The Owner agrees with the Town to construct a pedestrian walkway pursuant to the requirements of Schedule "G", between Lots 68 and 69, and between Lots 91 and 92, on Plan 18T-89041, to provide accesses to the Biram Park from Swindells Street and Maxwell Court. (3) The Owner agrees with the Town to comply with the provisions of Schedule "Q"- Conservation Authority's Work. (4) The Owner agrees with the Town to comply with the provisions of Schedule "Y"- Requirements of Other Agencies. (5) The Owner agrees with the Town that in cases in which the well or private water supply of any person is interfered with as a result of construction on or the development of the Lands or any portion of the Lands, or the construction or installation of any of the Works, the Owner, at its expense, either will connect the affected person to the municipal water supply system or provide a new well or private water system so that water supplied to the affected 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. (6) The Owner agrees with the Town that prior to the issuance of building permits for dwellings proposed to be constructed on any of the lots referred to in paragraph 4.12(9), of this Agreement, the Owner shall, provide its acoustic engineer's written certificate to the Town, certifying that the builder's plans for the dwellings are in 'I . . " . ~ Pl0 . L t J -, \ . ' - 24 - accordance with the acoustic report entitled "Noise Impact Study" - Prepared by G.M. Semas & Associates Ltd., dated October 1989 (the "Noise Impact Study"). (7) The Owner agrees with the Town that if the Escrowed Transfer of Block 530 on Plan 18T-89041 provided for by paragraph 2.4 of this Agreement becomes effective, and the Director gives it written notice requiring it to do so, the Owner, at its cost, will grade and seed Block 530 to the Director's satisfaction in accordance with such notice. (8) The Owner agrees with the Town that in order to facilitate the construction of the Temporary turning circle for Swindells Street referred to in Schedule "G" ,the Owner will not construct or cause or permit to be constructed any building or structure on Lots 57 to 60 on Plan 18T-89041, until the easement therefor provided for by Schedule "E" is released by the Town to the owner(s) of the abutting lots in accordance with this Agreement. 9(a) The Owner agrees with the Town at the Owner's cost to implement the recommendations contained in the Noise Impact Study. Without limiting the foregoing, the Owner agrees to: (i) construct 1.8 metre high acoustical noise barrier fencing on the lot referred to in paragraph 4. 12(9)(b); (ii) place on title appropriate warning clauses for each of the lots in question; and (ill) by implementing the construction techniques described in the Noise Impact Study, construct each dwelling in accordance with that Study. The Owner also agrees with the Town that the aforesaid acoustical noise barrier fencing will be constructed free of gaps and have a minimum density of (4) four pounds per square foot (19.5 kilograms per square metre). The design and materials used in such fencing require the written approval of the Director of Planning and the Director of Public Works to be obtained before construction of the fencing is commenced. 9(b) The location of the 1.8 metre high acoustical noise barrier fencing referred to in paragraph 4.12(9)(a) - noise barrier shall be consistent with Drawing N-l contained in the Noise Impact Study and more particularly shall be located as follows: Lot # on Plan 18T -89041 Location 350 -Along north lot lines -Along rear lot lines -Flankage abutting Street "H" -Westerly lot lines, abutting Liberty Street -Westerly lot lines abutting Liberty Street -North and east lot lines abutting Street "in -North lot lines -North lot lines -North and east lot lines -North and east lot lines -East lot lines -East and south lot lines -North lot lines -North and west lot lines 427 427 to 431 394 and 395 460 and 527 1 and 24 312 and 297 296 and 218R 268L & R 228 227 and 180 159 280L and 269R 313R . ~, . " ~ 1) )1' , . ~7 - 25 - 9(c) The dwellings on the following lots on the Plan shall be constructed with central air conditioning by the Owner at its expense: Lots 159, 180, 227, 228, 268L, 281R, 296,297, 312L, 427. / i I The Owner agrees to submit mechanical drawings as supporting documentation with each building permit application for a building proposed to be constructed on any of such lots, if deemed necessary by the Director of Planning in his discretion. Forthwith after a written notice is given by the aforesaid Director to the Owner making such a requirement, the Owner will submit such drawings to the Town's Chief Building Official for his consideration and approval prior to the issuance of a building permit for the building or structure in question. 9(d) Dwellings on the following lots on the Plan shall be fitted by the Owner at its expense with a forced air heating system and ducting, sized to accommodate a central air conditioning unit thereby allowing the homeowner the option of installing central air conditioning: Lots 1, 18, 19,22-25, 157, 158, 160 to 169, 181,229, 268L, 267R, 268R, 270L, 280L,280R, 281L, 282R, 295,298, 311L, 312R, 313R, 348-363, 394L, 395, 396, 428,429,430,431,446 to 459,527. 9(e) The following warning clauses are to be attached to all offers of purchase and sales for any of the following lots on the Plan: Lots 1,18,19,22-25,157,158, 160 to 169, 181,229, 268L, 267R, 268R, 270L, 280L,280R, 281L, 282R, 295,298, 3IlL, 312R, 313R, 348-363, 394L, 395, 396, 428,429,430,431,446-459,527: "Purchasers are advised that despite the inclusion of noise control features within the development area and within the individual dwelling units, noise levels may continue to be of concern, occasionally interfering with some activities of the building occupants. This dwelling unit was fitted with a forced air heating system and ducting, sized to accommodate a central air conditioning unit. (NOTE: Care should be taken to ensure that the central air conditioning condenser unit is located in an area that is not sensitive to noise.) H 9(f) The following warning clauses regarding outdoor noise levels shall be attached to all offers of purchase and sale of dwellings for the following lots on the Plan: Lots 159, 180,227, 228, 268L, 281R, 296,297,312L,427: "Purchasers are advised that despite the inclusion of noise control features within the development area and within the individual dwelling units, noise levels may continue to be of concern, occasionally interfering with some activities of the building occupants." 9(g) In order to ensure acceptable night time bedroom noise levels and acceptable noise levels within a first floor living, dining or recreation room of dwellings, the Owner agrees with the Town, at the Owner's expense, to so construct the components of the dwelling so as to satisfy in each case the Acoustic Insulation Factor (A.I.F.)abutting each street as set out below: 1. &1m Mearns Avenue Bedroom noise levels...... First floor, living, dining or recreation A.r.LF . 26 room................... . 28 , .. 1 , II .' , . , / j I ~ 22> - 26- 2. Concession Road No. 3 Bedroom noise levels...... First floor, living, dining or recreation 28 room... ............ ....... 29 3. Uberty Street Bedroom noise levels...... First floor, living, dining or recreation 24 room....... ..... ........... 26 The Owner further agrees with the Town that construction on the lots referred to in this paragraph 4.10(9) the dwellings will incorporate the special window treatment described in the Noise Impact Study. (10) The Town will approve the Owner having temporary access for construction purposes to and from Uberty Street and Concession Road No.3 at locations approved by the Director as shown on the Engineering Drawings for Phase 1 of the Development of the Lands. The Owner acknowledges that the location of the access to Uberty Street also requires the prior approval of the Region of Durham. (11) The Owner agrees to pay to the Town the Owner's share of the costs of the Soper Creek Erosion Works. The details, costs and, where relevant, the allocation of the costs of these Works shall be defined in the "Stormwater Management Report" and the "Cost Sharing Report" referred to in Schedule "G" which are subject to the approval of the Director. At the date of this Agreement, the requirements for the Soper Creek Erosion Works have not been determined with precision. Prior to the registration of the first plan of subdivision for a Phase Subsequent to Phase 1 of the Development of the Lands, the Owner agrees with the Town to deposit a letter of credit with the Town's Treasurer to cover the Owner's estimated share of the estimated costs of the Soper Creek Erosion Works as determined in the Cost Sharing Report as approved by the Director. The letter of credit shall be such that will satisfy all of the requirements of this Agreement in respect of a letter of credit that may be deposited with the Town as a Performance Guarantee. Prior to the issuance of the Certificate of Acceptance for the Roads and Above Ground Services for Phase 1 of the Development of the Lands, the Owner's share of the costs of the Soper Creek Erosion Works as set out in Schedule "1" shall be confirmed and updated to current dollars by the Director in his discretion, and the Owner shall pay the Town its revised share of the revised costs of the Soper Creek Erosion Works, determined on the same basis as was used in determining the Owner's share of the estimated costs of these Works in the "Cost Sharing Report". (12) The Owner agrees to construct the "Primary Access" (as hereinafter defined) for Phase I of the development of the Lands at its cost and in accordance with the design therefor approved by the Director. The Primary Access shall be completed no later than July 31, 1991, unless a later completion date is approved in writing by the Director. In the event that the Primary Access is not so completed, this Agreement will be considered by the Town as not being in good standing. Following completion of the Primary Access, the Owner's temporary access as to Liberty Street and Concession Road No. 3 will be abandoned and the streets shall be restored by the Owner at its cost to the satisfaction of the Director as quickly as is reasonably practical. For the purposes of this paragraph 4.12(12), the "Primary Access" shall mean the construction of Freeland A venue from Liberty Street to Mearns Avenue and the construction of Copeland Gate from Fenwick Avenue to Freeland Avenue. (13) The Owner agrees to satisfy the conditions which are contained in Schedule "X" respecting "Road Construction During Winter". The roads in question include Elford Drive, Hanning Court, Fenwick Avenue (from Hanning Court to Pomeroy Street). The Owner and the Town agree that the provisions of this Agreement with respect to maintenance (paragraph 5.23), completion (paragraph 5.22) and acceptance . - , " , . . ~ ~1. - 27a - (paragraph 5.24) of these roads, Performance Guarantee (paragraph 3.6) and Security for the Maintenance Guarantee (paragraph 3.9) for these roads are to be considered to have been replaced by the provisions of Schedule "X" in each case in which the provisions of Schedule "X" are inconsistent with any of the provisions of such paragraphs. (14) The Owner agrees to pay to the Town the Owner's share of the costs of the stormwater management works on the West Branch of the Soper Creek for which this development is tributary. These works are described in the Master Drainage Plan for the West Branch of the Soper Creek, prepared by Marshall Macklin Monaghan Ltd., dated Iune, 1989, as approved by the Director and on file with the Director. The total estimated costs of these works and the Owner's share thereof are set out in the Cost Sharing Report for Implementation of the Master Drainage Plan for the West Branch of the Soper Creek prepared by Marshall Macklin Monaghan Ltd. dated May, 1990, as approved by the Director and on file with the Director. They are also set out in Schedule "I". Upon completion of these works the total estimated costs and the Owner's share thereof shall be updated to reflect the "as constructed" costs of the works and the then current dollar vaIue thereof as determined by the Director. The Owner's share of the updated costs of the stormwater management works on the West Branch of the Soper Creek shall be paid by the Owner to the Town prior to the expiry of the thirty (30) day period which commences on the later to occur of the (1) registration of an approved final plan of subdivision which include Lots 9 to 43 inclusive and 49 to 72 inclusive, shown on Plan 18T -89041, against the title to the appropriate portion of the Lands, and (2) the date of issuance of the certificate of completion of these works by the Director. On the execution of this Agreement, the Owner shall deliver to the Town's Treasurer an unconditional and irrevocable letter of credit in the amount of eighty-five thousand, six hundred and twenty dollars ($85,620.00) issued by a bank listed in Schedule "A" or Schedule "B" of the Bank Act and acceptable to the Town's Treasurer. The letter of credit shall contain terms satisfactory to the Town's Treasurer. The letter of credit is to secure performance by the Owner of its covenant to pay its share of the costs of the works referred to in and in accordance with the provisions of this paragraph 4.12(14). (15) The Owner agrees to pay to the Town the Owner's share of the costs of the oversizing of the storm sewer constructed on Mann Street within Plan 18T- 87033. The total estimated costs of this work and the Owner's share thereof have been estimated by the Director and are set out in Schedule "I". Upon completion of this work the total estimated costs and the Owner's share thereof shall be updated to reflect its "as constructed" costs and the then current dollar vaIue thereof as determined bytll.e DiI"ector. The Owner's share of the updated costs of the work referred to in this paragraph 4.12(15) shall be paid by the Owner to the Town prior to the registration of an approved finaI plan of subdivision which includes Lots 9 to 43 inclusive and 49 to 72 inclusive, shown on Plan 18T-89041, against the title to the appropriate portion of the Lands. On the execution of this Agreement the Owner shall deliver to the Town's Treasurer an unconditionaI and irrevocable letter of credit in the amount of forty-two thousand, seven hundred and forty- one dollars and eighty-three cents ($42,741.83) issued by a bank listed in Schedule "A" or Schedule "B" of the Bank Act and acceptable to the Town's Treasurer. The letter of credit shall contain terms satisfactory to the Town's Treasurer. The letter of credit is to secure performance by the Owner of its covenant to pay its share of the costs of the work referred to in and in accordance with the provisions of this paragraph 4.12(15). = " 411- ~C/ - 27b - .. 5. PUBLIC WORKS 5.1 TOWN WORKS REQUIRED The Owner agrees with the Town, at the Owner's expense, to construct and install the facilities, services, works, improvements and landscaping more particularly described in Schedule "G" hereto (and which, with the exception of the Soper Creek Erosion Works collectively are called the "Works"). From the date of the commencement of the construction and installation of the Works until the date of issuance of a Certificate of Acceptance of them, the Works shall remain the property of the Owner and the Owner shall be fully responsible for their maintenance. After the issuance of a Certificate of Acceptance, the Works referred to in such Certificate shall vest in and become the property and the responsibility of the Town. 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 Newcastle Hydro-Electric Commission and/or such other authority or company having jurisdiction in respect of the Utilities and services referred to in Schedule "H" in the area in which the said Lands are located which provides for the matters referred to in Schedule "H". 5.3 OWNER'S ENGINEER The Owner shall retain a Professional Civil Engineer, registered by the Association of Professional Engineers of Ontario (the "Owner's Engineer") who shall perform the duties set out in Schedule "I". Forthwith after retaining its Engineer, the Owner shall give the Director written notice of the name and address of the Owner's Engineer. The Parties acknowledge that G.M. Sernas and Associates Ltd. has been retained as the Owner's Engineer. 5.4 DESIGN OF WORKS (1) The Owner agrees that the design of all the Works with the exception of the Soper Creek Erosion Works, shall conform with the Town'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 fmal. The Owner's Engineer shall complete the "Stormwater Management Report" (draft dated December 1990) for the watershed in which the Lands are located, to the satisfaction of the Director. In addition, the Owner's Engineer, at the Owner's expense, shall prepare to the satisfaction of the Director a "Cost Sharing Report" for the stormwater management works described in the "Stormwater Management Report". The "Cost Sharing Report" will identify the particular Works appropriate for cost sharing, the costs to be shared, including the cost of acquisition of any necessary lands and easements to implement the "Stormwater Management Report", the cost sharing formula, the relevant watershed area, the benefiting properties and any other pertinent factors which affect the costs of or the allocation of the costs thereof to the benefiting owners of the construction and implementation of the Works, excluding the Soper Creek Erosion Works, which are dealt with in the "Stormwater Management Report". (2) The Owner agrees to provide and submit to the Director all necessary Engineering Drawings and obtain all approvals for the construction and installation of the Stormwater . " ~ ~ I ;.1\ /' l - 28 - / j I Management Works, exclusive of the Soper Creek Erosion Works, as required by this Agreement. (3) On the execution of this Agreement, the Owner agrees at its expense to transfer to the Town any lands or easements considered necessary in the opinion of the Director to accomodate the construction, installation and maintenance of the Tributary Stormwater Management Works, exclusive of the Soper Creek Erosion Works. For greater certainty, the Parties agree that the provisions of paragraphs 2.4 and 2.5 shall apply in respect of such transfers. 5.5 APPROV ALOF ENGINEERING DRAWINGS Prior to the issuance of any Authorization to Commence Works, the Owner shall obtain the written approval of the Director of all necessary 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 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. 5.6 APPROV ALOF GRAJJING AND DRAINAGE 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 STAGING OF CONSTRUCTION Prior to the commencement of construction and installation of any of the Works, 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. The draft Staging Plan will divide the Lands into two (2) or more stages for the construction, installation and maintenance of the Works. It shall include the Mearns Avenue Rural Upgrading Works, the Storm Sewer Works and the Tributary Stormwater Management Works, exclusive of Soper Creek Erosion Works. The Owner shall not proceed with the construction and installation of any 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, and thereafter shall proceed to construct and install the 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. . ., '.. I't I J / y- ? ;;Z - 29- 5.8 APPROV ALOF 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 thereto that which may be approved by the Director. 5.9 APPROVAL OF WORKS COST ESTIMATES AND STAGE COST ESTIMATES Prior to the date of issuance of any Authorization to Commence Works, the estimated cost of construction and installation of the Works, excluding the Soper Creek Erosion Works (the "Works Cost Estimates"), shall be approved by the Director and entered in Schedule "J". In addition, if a Staging Plan has been approved pursuant to paragraph 5.7,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 approved by the Director and entered in Schedule "]" prior to the issuance of an Authorization to Commence Works in that stage. 5.10 REQUIREMENTS FOR AUTHORIZATION TO COl\1MENCE WORKS (1) The Owner shall not commence the construction or installation of any of the Works without the written permission of the Town, (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 of 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: (a) The Plan has received final approval from the Region. (b) The plan of subdivision for the Lands or for the portion of the Lands in which the Works which the Owner proposes to construct and install pursuant to the Authorization to Commence Works are located, has been registered against the title to the Lands or to the portion of the Lands which are included in the plan of subdivision, as the case may be. (c) The Owner has delivered to the Town (1) a copy of this Agreement as registered against the title to the Lands, (2) a copy(s) of the registered plan(s) of subdivision and (3) a copy of the other agreements referred to in paragraph 2.2 of thisAgreement. (d) The Owner has paid to the Town any outstanding charges against the said lands required by paragraphs 3.1, 3.2, 3.3 and 3.4 of this Agreement. (e) The Owner has transferred to the Town the easements required by paragraph 2.3 of this Agreement, and such transfers have been registered against the title to the appropriate lands. (f) The Owner has transferred to the Town the lands and paid any cash in accordance with paragraphs 2.4 and 3.5 of this Agreement, and such transfers have been registered against the title to the appropriate lands. (g) The Owner has delivered to the Town letters signed on behalf of the Newcastle Hydro-Electric Commission, or other authority or company having jurisdiction with , .1 t 'or.l i} I , ,. / j / ~ r} - 30- respect to the Utilities and services that are referred to in Schedule "H" that satisfactory agreements 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 an Engineer in compliance with paragraph 5.3 of this Agreement and has confirmed the name and address of its Engineer to the Director in writing. (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. (j) The Owner has been given written approval of the Director of Public Works, Planning and Community Services, as the case may be, of the Landscape Plan and the "Park Site Master Plan "as required by paragraphs 4.2, and 4.11 of this Agreement. (k) The Owner has been given the written approval of the Director of the Grading and Drainage Plan required by paragraph 5.6 of this Agreement. (1) The Owner has been given the written approval of the Director of Planning to the Tree Preservation Plan required by paragraph 4.1 of this Agreement. (m) The Owner has been given the written approval 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 been given the written approval of the Director of the Schedule of Works as required by paragraph 5.8 of this Agreement. (0) The Owner has been given the written approval of the Director to the Works Cost Estimate or the Stage Cost Estimate as required by paragraph 5.9 of this Agreement. (P) The Owner has deposited with the Town the Performance Guarantee applicable in respect of the portion of the Lands for which the Owner is seeking such Authorization to Commence Works as required by paragraph 3.60f this Agreement, and has made all cash payments to and deposited allletten of credit with the Town, as required by this Agreement. (q) The Owner has deposited with the Town all policies of insurance or proof thereof required by paragraphs 3.8 and 4.11(13) this Agreement. (r) The Owner has paid all costs required to be paid to the Town by paragraph 3.13 of this Agreement on or prior to the date of issuance of the Authorization to Commence Works. (s) The Owner has made all payments to and deposited all letters of credit with the Town in respect of the External and/or Oversized services that are required by paragraph 5.27 of this Agreement. (2) Notwithstanding the provisions of paragraph 5.10(1), the Owner may commence the construction and installation of the Works with the written approval of the Director prior to the registration of the plan of subdivision referred to in paragraph 5.1O(1)(b), provided that the requirements of clauses 5.10 (1) (c), (d), (g), (h), (i), (j), (k), (1), (m), (n), (0), (P), (q), (r) and (s) have been satisfied by the Owner. In such a case, however, a Certificate of Acceptance of the Works, shall not be issued by the Director until one or more plans of subdivision of the Lands have been registered and all the other requirements of this Agreement respecting the issuance of a Certificate of Acceptance have been satisfied. Notwithstanding the approval of the Director under this paragraph 5.10(2), the Owner agrees with the Town that the construction or installation of any of the Works pursuant to paragraph 5.10(1), if undertaken shall be undertaken at the sole risk of the Owner and the 'I , . .. ~ r 0/7 '1<1 . J. ~ t ~I . 1 - 31 - Owner hereby waives any right that he might have to compensation by or damages from the Town that he might otherwise have as a result of its construction and installation of any of the Works. 5.11 REQUIREMENTS FOR COMMENCEMENT OF SUBSEOUENT STAGFS OF WORKS / I Notwithstanding any other provision of this Agreement, if the Director has approved a Staging Plan for the said Lands, the Owner shall require an Authorization to Commence Works for each stage defined in the Staging Plan. If the Town has issued an Authorization to Commence Works for a particular stage defined in the Staging Plan, an Authorization to commence Works for any subsequent stage of the Staging Plan shall not be issued until: (a) the Stage Cost Estimate for such stage has been approved by the Director and entered in Schedule "1" hereto; and (b) the Owner has deposited with the Town the Performance Guarantee applying to the stage for which the Owner is seeking such Authorization to Commence Works. 5.12 INSP~CTION AND STOP WORK The Owner agrees to 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 Town 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, after consultation with the Owner's Engineer, may give the Owner, if it does not retain a contractor, or if it does, the Owner's contractor, a written order to stop any work that is being undertaken if, in the Director's opinion, either the work is not being undertaken such that a completed construction and installation of the Works satisfactory to the Town in accordance with this Agreement will result, or if the Performance Guarantee required to be provided pursuant to this Agreement in respect of the Works is not maintained in good standing. The Owner and the Owner's contractor shall comply with the stop work order forthwith on it being given by the Director. 5.13 CONSTRUCTION IN ACCORDANCE WITH ENGINEERING DRAWINGS All of 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, exclusive of the Soper Creek Erosion 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". 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 from 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 the Authorization to Commence Works, with the exception of 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. . ~. r ",' " ,.. f , . / J ?f :J> - 32 - 5.16 MINOR ADDmONAL WORK Until the conclusion of the Maintenance Guarantee Period referable thereto, if in the opinion of the Director, any minor or incidental additional work is required to provide for the adequate operation and functioning of any of the Works, the Owner, at its cost, shall construct or 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 WORK AND LIENS (1) If, in the opinion of the Director, 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 will be completed within the time specified for such completion in the Schedule of Works, or if the Works are being improperly constructed or installed, or if the Owner neglects or abandons the said Works or any part of them before completion, or unreasonable delays occur in the execution of the same, or 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 the Owner neglects or refuses to reconstruct or reinstall any of the Works which may be rejected by the Director as defective, deficient or unsuitable, or the Owner in the opinion of the Director otherwise defaults in performance of this Agreement, then in any such case the Director after receiving the authority of the Town Council, may give the Owner notice in writing of such default, neglect, act or omission. Following the later to occur of the expiry of ten (to) business days, excluding Saturdays, after the giving of such notice and the expiry of such additional period as may be specified in the notice given to the Owner by the Director, the Town at the cost and expense of the Owner may employ a contractor or such workmen and purchase such services, supplies and/or services as in the opinion of the Director are required for the proper completion of the Works in accordance with this Agreement. In cases of an emergency, as determined by the Director in his discretion, any deficiency or defect in the Works, or any failure to complete the Works in accordance with this Agreement, may be corrected or remedied by the Town at the cost and expense of the Owner without prior notice to the Owner, provided that forthwith after the Town so acts, the Director shall give written notice to the Owner describing the emergency, the action taken by the Director, and the cost of the correcting the deficiency or default in queston. The cost of any work which the Town undertakes under this paragraph 5.17(1) shall be determined by the Director in his discretion and his decision shall be final. It is understood and agreed by the parties that the cost for which the Owner is responsible under this paragraph 5.17(1) shall include a management fee to the Town either of thirty percent (30%) of the contractor's charges to the Town (including any charges for overhead and profit) or, if such work is undertaken by the Town, or of thirty percent (30 %) of all costs incurred by the Town to complete the Works in question. The Owner agrees to reimburse the Town for the cost of all Works, and the cost of correcting or remedying all deficiencies, defects and defaults pursuant to this paragraph 5.17(1) which have been incurred by the Town forthwith after the Director gives the Owner written demand for payment of such cost. (2) In the event that any construction liens are filed under the Construction Lien Act such filings 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 claimant within ten (10) ~usiness days, excluding Saturdays, after the giving of such notice, or within such further period of time as may be specified in the notice, then the Town may pay the full amount of the claim and costs into a Court of competent jurisdiction. The Town is hereby authorized by the Owner to draw on and appropriate any Performance Guarantee or Security for a Maintenance Guarantee deposited with the Town's Treasurer or to indemnify the Town against the costs and expense so incurred by the Town. In the event that the Town draws on and appropriates any part of the Performance Guarantee or the Security for the Maintenance Guarantee to satisfy ) , ~f' (' , , , / j , ~ ~~ - 33 - the claim of anyone or more construction lien claimants and costs, 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 ENTRY FOR EMERGENCY REPAIRS In addition to the Town's other rights under this Agreement, the Owner agrees that, at any time and from time to time, employees or representatives of the Town who are authorized by the Director, or contractors retained by the Town may enter on the said Lands for the purpose of making emergency repairs to any of the Works. Such entry and repairs shall not be deemed to be an acceptance of any of the Works by the Town, nor an assumption by the Town of any responsibility or liability in connection therewith, or a release by the Town of the Owner from any of its obligations under this Agreement. 5.19 DAMAGE TO EXISTING SERVICFS Forthwith after written demand therefor is given by the Director to the Owner, the Owner will pay to or to the direction of the Town the cost of repairing any damage to any property or services of the Town or the Region of Durham or to any property of any of the authorities or companies referred to in Schedule "H" (the "Damaged Services") including without limiting the generality of the foregoing, any roads, 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 or more portions of the Lands, or the construction or installation of any of the Works including the External and/or Oversized Works, exclusive of the Soper Creek Erosion Works, provided that all such repairs and or relocation(s) are completed to the satisfaction of the Director, Region of Durham and the Newcastle Hydro-Electric Commission or other authority or company which owns or is responsible for the Works, property or services in question. In addition, the Owner agrees with the Town, 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. 5.19ADAMAGE TO NEIGHBOURING WELLS (1) Prior to the commencement of and during the period of construction or installation of the Works and until the expiry of the period of required maintenance of the Works provided for in paragraph 5.23 of this Agreement, the Owner will cause to be carried out, at its expense, the ground water monitoring program which has been approved by the Director pursuant to this paragraph 5.19A(1), (the "Monitoring Program"). The Monitoring Program shall be prepared in draft form by a qualified hydrogeologist (the "Hydrogeologist") who shall be retained by the Owner, at the Owner's expense, after the Hydrogeologist first is approved by the Director. The draft Monitoring Program shall be submitted to the Director for his consideration and approval. After the Monitoring Program has been approved, it shall be implemented by the Hydrogeologist. The Monitoring Program shall describe the number and location of the piezometric observation wells which are to be installed by the Owner, and the frequency, method of observation, method of collection and recording of data and the timing, form and addressees of the report of the Hydrogeologist's analyses and findings to the Town, as well as such other matters as the Director considers to be appropriate. After the draft Monitoring Program has been approved by the Director with or without such modifications as he may consider appropriate, it is the "Monitoring Program" for the purposes of this Agreement. (2) For the duration of the Monitoring Program, the Owner agrees to cause the Hydrogeologist, at no cost to the Town, to provide the Director with a copy of all reports prepared by him in connection with or in implementation of the Monitoring Program forthwith after they are prepared. For the duration of the Monitoring Program, the Owner also will cause the Hydrogeologist to make available to the Director, at no cost to the Town, forthwith after a written request therefore is given to the Hydrogeologist by the . ,.. I " " , , . / J I ~ ')7 - 34- Director, a copy of all data collected and all analyses made in coMection with or implementation of the Monitoring Program. Forthwith following the completion of the Monitoring Program, the Owner will cause the Hydrogeologist to provide to the Director, at no cost to the Town, a copy of all data collected and all analyses and reports made by the Hydrogeologist in COMection with or in implementation of the Monitoring program which previously have not been provided to the Director pursuant to this paragraph 5.19A(2), together with a certificate of the Hydrogeologist, in a form satisfactory to the Town Solicitor that all the data, analyses and reports required to be provided to the Director by this paragraph S.19A(2), have been provided to him. In addition to the foregoing, the Owner agrees to cause the Hydrogeologist to prepare separate reports, to the satisfaction of the Director for each and every occurrence of apparent well interference caused by construction activity within the Lands and reported to the Town, and to deliver the same to the Director, at no cost to the Town, forthwith after each of them is completed. (3) The Owner agrees that, if after considering a report thereon from the Director in this regard, Town Council determines that the well or private water supply of any person outside the Lands is interfered with or dewatered as a result of the construction or installation of the Works: (a) where the interference to a well or private water supply is of short term duration (i.e. during the course of dewatering and excavation and within one month of the completion of dewatering), in the opinion of the Town Council, make available to the affected party, a temporary supply of water at no cost to the affected party; or (b) where the interference to a well or private water supply is of a long term duration, in the opinion of the Town Council, at the option of the Owner and at his expense, COMect the affected party's property to the Town water supply system or provide a new well or private water system for such affected party so that water supplied to the affected party's property shall be of a quality and quantity at least equal to the quality and quantity of water enjoyed by the affected party prior to the interference, as may be required by the Town Council by written notice given to the Owner. (4) If the Director gives written notice to the Owner that he has reason to believe that the well or private water supply of any person outside the Lands is interfered with or dewatered as a result of the construction or installation of the Works, the Owner agrees that forthwith after such notice is given, he will cause the quantity of potable water considered to be appropriate by the Director to be supplied to the affected person(s) free of charge either until such time as the Town Council, after considering a report thereon from the Director, decides that the well or private water supply in question has not been interfered with or dewatered as a result of the construction or installation of the Works, or until such time as the Owner performs his obligation under paragraph S.19A(3), as the case may be. 5.20 USE OF WORKS BY TOWN The Owner agrees that any of the Works may be used by the Town or other authorized persons, for the purposes for which the Works are designed prior to the issuance of a Certificate of Acceptance. Such use of any of the works shall not be deemed an acceptance of any of the Works by the Town, nor an assumption by the Town of them for the purpose of responsibility for their repair and maintenance, nor a release of the Owner from any of its obligations under this Agreement. 5.21 MAINTENANCE OF ROADS AFTER COMPLETION (1) In addition to any other requirement of this Agreement that the Owner maintain the Works, if any building on the said Lands is occupied the Owner at the Owner's cost shall maintain each road(s), which is required to be constructed and which provide access to ., . ~ )<1 - 35 - such building, 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 roads 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 indicate that the road(s) are -unassumed road(s)" which the town is not required by law to repair and maintain, to the satisfaction of the Director. j / (2) The Town agrees to snow plough and sand all paved roads within the Plan, for and on behalf of the Owner until the Certificate of Acceptance of such roads has been issued, provided that until the roads are assumed by the Town, the Owner shall pay to the Town one hundred percent (100%) of the costs of snowploughing and sanding such roads, as determined by the Director, from time to timet and forthwith after being given written notice of such costs by the Director. (3) The Owner acknowledges that the undertaking or provision of any repairs or maintenance by the Town under paragraph 5.180r paragraph 5.21(2) in respect of a road on the Plan, is not intended nor shall it in any way constitute or be taken to constitute the approval or assumption by the Town of the road in question. The road 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 Town Council dedicating the road as a public highway 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 proper Land Registry Office. 5.22 REOUIREMENTS FOR CERTIFICA TEOF COMPLETION The Owner 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 a written certificate that such is the case (the "Certificate of Completion-). In addition to the satisfying the other requirements of this Agreement respecting its issuance, a Certification of Completion shall not be issued until: (a) 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 (b) the Town is satisfied that in respect of the construction and installation of all of the Works authorized by such Authorization to Commence Works, there are no outstanding construction lien claims for payment by contractors, subcontractors, suppliers of services or materials or workmen relating to the construction and installation of such Works. 5.23 PERIOD OF REQUIRED MAINTENANCE OF CERTAIN WORKS From and after the date of the issuance of a Certificate of Completion, the Owner shall maintain each of the Works covered by such Certificate of Completion as follows: (a) Storm Sewer Works includin~ the Storm Sewer Work on Mearns Avenue: a minimum of two (2) years commencing upon the date of issuance of the Certificate of Completion of these Works and terminating upon the date of the issuance of the Certificate of Acceptance of them. (b) Roads and Above Ground Services: a minimum of two (2) years from the date of issuance of the Certificate of Completion for the roads and above .' ' # ')Cf - 36- ground services and terminating upon the date of the issuance of the Certificate of Acceptance for the roads and above ground services. (c) Tributar:y Stormwater Manaaement Works. exclusive of the So,per Creek Erosion Works: a minimum of four (4) years commencing on the date of issuance of the Certificate of Completion for the Tributary Stormwater Management Works, exclusive of the Soper Creek Erosion Works, and terminating on the date of issuance of the Certificate of Acceptance of the Works. / .I The Parties understand and agree that maintenance of the Phase 1 roads shown on the first stage of the Staging Plan which are constructed during the Winter shall be in compliance with the provisions of Schedule .X". 5.24 REOUIREMENTS FOR CERTIFICATEOF ACCEPrANCE The Owner 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 a written certificate that they have been accepted by the Town, (the "Certificate of Acceptance"). In addition to satisfying the other requirements of this Agreement respecting its issuance, a Certificate of Acceptance shall not be issued until all of the Works that are proposed to be covered by such Certificate of Acceptance have been inspected by the Director and the Town Council has approved the written report of the Director that all such Works have been maintained to the approval of the Director for the relevant period set out in paragraph 5.23 of this Agreement, all deficiencies and defects in the Works have been corrected by the Owner, and the Works should be accepted by the Town. 5.25 OWNERSHIP OF WORKS BY TOWN The Owner and the Town agree that the ownership of all of the Works covered by a Certificate of Acceptance shall vest in the Town on the issuance of the Certificate of Acceptance unless otherwise provided by law. After the ownership of Works has vested in the Town, 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 clauses (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 Town agrees to provide the Owner with a written release (the "Certificate of Release") respecting the Lands, Phase 1 of the Development of the Lands, or a Phase Subsequent to Phase 1 of the Development of the Lands, as the case may be, for which a plan of subdivision has been registered. 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 respecting the Lands, Phase 1 of the Development of the Lands, or a Phase Subsequent to Phase 1 of the Development of the Lands, as the case may be, shall not be issued until: (a) A Certificate(s) of Acceptance have been issued for all of the Works located on the Lands, or for all of the Works located on Phase 1 of the Development of the Lands, or for all of the Works located on a Phase Subsequent to Phase 1 of the Development of the Lands, as the case may be, which are required to be constructed and installed by the Owner. (b) A registered Ontario Land Surveyor acceptable to the Director, and retained by the Owner at the Owner's expense, has provided the Town with written confirmation that at a date not earlier than the end of the longest of the maintenance periods set out in paragraph 5.23 for any of the Works referred to in paragraph 5.26(a), he has found, placed or replaced all standard iron bars shown on the Plan and survey , ,! ' .. I ~ ~c:? .' , - 37 - monuments at all block corners, the end of all curves, other than corner roundings, and all points of change in direction or roads on the Plan. (c) Town Council has by resolution acknowledged that the Owner has satisfied all of the provisions of this Agreement relevant to the Lands, Phase 1 of the Development of the Lands, or a Phase Subsequent to Phase 1 of the Development of the Lands, as the case may be. From the date of its issuance, a Certificate of Release shall operate as a discharge of the Owner in respect of the lands 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 for dwellings on the Lands. 5.27 EXTERNAL AND/OR OVERSIZED SERVICES (1) The externaI and/or oversized services located outside the limits of the Plan which the Owner is constructed pursuant to a pre-servicing agreement with the Town of November 22, 1990, or is required to construct and install pursuant to this Agreement, or in respect of which the Owner is required to pay to the Town part of the cost of their construction and installation pursuant to this Agreement, are the following: Mearns Avenue Rural Upgrading Work pursuant to the pre-servicing agreement; Mearns Avenue Urban Upgrading Work; Concession Road No. 3 Rural Upgrading Work; Concession Road No.3 Urban Upgrading Work; Storm Sewer Work pursuant to the pre-servicing agreement; Tributary Stormwater Management Works; exclusive of the Soper Creek Erosion Works; and Soper Creek Erosion Works In this Agreement, these external and/or oversized services including the Soper Creek Erosion Works collectively are called the "External and/or Oversized Services". Each of the ExternaI and/or Oversized Services is defined and, subject to the other provisions of this paragraph 5.27,the Owner's financial responsibility in respect thereof under the current Town policy is described in Schedule "P"hereto. Upon completion of each of the External and/or Oversized Works the as constructed cost shall be determined by the Director. When written notice of the Director's determination of the as constructed cost is given to the Owner, reference to the cost of the particular ExternaI and/or Oversized Service in this Section 5.27 and Schedule UP" and to the Owner's financiaI responsibility in respect of it under the current policy, shall be deemed to be a reference to the as constructed cost thereof. (2) Nothing in this Agreement is intended by the Parties to be taken as fettering in any way the Town Council in the exercise of its legislative discretion with regard to the enactment of a Development Charge By-Law pursuant to the Act. (3) With respect to the Mearns Avenue Urban Upgrading Work, subject to paragraph 5.27(8) the Owner shall pay to the Town the sum of two hundred and eighty thousand, five hundred and seventy five dollars ($280,575.00) on the execution of this Agreement. (4) With respect to the Concession Road No.3 Rural Upgrading Work and the Concession Road No.3 Urban Upgrading Work, subject to paragraph 5.27(8), the Owner shall pay to the Town the sum of four hundred and thirty-eight thousand, sixty-two dollars and fifty cents ($438,062.50) on the execution of this Agreement. (5) The Owner, at its cost, is constructing and installing the Storm Sewer Work pursuant to the pre-servicing agreement with the Town. If: IfY '-(( - 38 - (i) the Town passes a Development Charge By-law under the Act which is applicable to the Lands, (ii) the Development Charge By-law comes into force, and (ill) the Town Council is not required by the Ontario MunicipaI Board to repeal the Development Charge By-law, as soon as is reasonably practicable and legally possible after the by-law comes into effect and any objection thereto has been resolved favourably to the by-law by the Ontario Municipal Board, the Town and the Owner intend to enter into a "front-ending agreement" (as defined in the Act) pursuant to the Act with each other and with any persons who may wish to be a party to such agreement who own land within the Storm Sewer Work "benefiting area" (as defmed in the Act) as it may be described in such agreement. While recognizing that changes may be made by the Ontario Municipal Board pursuant to the Act, the Owner and the Town hereby record their present intention that the "benefiting area" area respecting the Storm Sewer Work will be the area specified in Schedule "P"and that each owner of land within such "benefiting area" shall be responsible to pay the portion of the cost of the Storm Sewer Work which is specified in Schedule "P". The Development Charge By-Law and the "front-ending agreement" are intended to contain such other provisions satisfactory to the Town that the Town considers to be necessary and desirable to implement the requirements and provisions of the Act. Forthwith after the Storm Sewer Work "front-ending agreement" is made, the Town shall process it with reasonable expedition in accordance with section 22 of the Act to the end that the "front-ending agreement" is brought into effect at the earliest possible date so that it may be enforced by and against the parties to it and other owners of lands within the Storm Sewer Work "benefiting area" in accordance with the provisions of the Act. Money received by the Town pursuant to the Storm Sewer Work "front-ending agreement" that is permitted to be reimbursed to the Owner, shall be paid to the Owner in accordance with the applicable provisions of the Act. The Owner hereby directs the Town to make such payment(s) to it. The Parties also agree that nothing contained in this Agreement shall require any credit to be given to the Owner for the cost of constructing and installing the Storm Sewer Work in respect of a development charge imposed by a Development Charge By-law passed by the Town Council whether or not the development charge includes as a component the whole or any part of the cost of the Storm Sewer Work. The Owner hereby consents to the registration of the "front-end agreement" referred to in this paragraph 5.27(5) against the title to the Lands or such portion thereof as may be determined by the Town in its discretion. (6) The Owner, at its cost shall construct and install the Tributary Stormwater Management Works with the exception of the Soper Creek Erosion Works in compliance with the other provisions of this Agreement. The Soper Creek Erosion Works will be constructed and installed by or for the Town or other authority or person at a date in the future that cannot be defined with precision at the present. The Owner's share of the cost of the Soper Creek Erosion Works will be secured and paid to the Town as provided for in paragraph 4.12 (11) of this Agreement. (7) If: (i) the Town passes a Development Charge By-law under the Act which is applicable to the Lands, (ii) the Development Charge By-law comes into force, and (ill) the Town Council is not required by the Ontario Municipal Board to repeal the Development Charge By-law, as soon as is reasonably practicable and legally possible after the by-law comes into effect and any objection thereto has been resolved favourably to the by-law by the Ontario Municipal Board, the Town and the Owner intend to enter into a "front-ending agreement" (as defined in the Act) pursuant to the Act with each other and with any person who may J I l . J,f9/ Lf~ , . - 39 - wish to be a party to such agreement who own land within the Tributary Stormwater Management Works "benefiting area" (as defined in the Act) as it may be described in such agreement. While recognizing that changes may be made by the Ontario Municipal Board pursuant to the Act, the Owner and the Town hereby record their present intention that the "benefiting area" area respecting the Tributary Stormwater Management Works will be the area specified in Schedule UP" and that each owner of land within such "benefiting area" shall be responsible to pay the portion of the cost of the Tributary Stormwater Management Works including as a separate component thereof the cost of the Soper Creek Erosion Works, which are specified in Schedule "P". The Development Charge By-Law and the "front-ending agreement" are intended to contain such other provisions satisfactory to the Town that the Town considers to be necessary and desirable to implement the requirements and provisions of the Act. Forthwith after the Tributary Stormwater Management Works "front-ending agreement" is made, the Town shall process it with reasonable expedition in accordance with section 22 of the Act to the end that the "front-ending agreement" is brought into effect at the earliest possible date so that it may be enforced by and against the parties to it and other owners of lands within the Tributary Stormwater Management Works "benefiting area" in accordance with the provisions of the Act. Money received by the Town pursuant to the Tributary Stormwater Management Works "front-ending agreement" that is permitted to be reimbursed to the Owner shall be paid to the Owner accordance with the applicable provisions of the Act. The Owner hereby directs the Town to make such payment(s) to it. The Parties also agree that nothing contained in this Agreement shall require any credit to be given to the Owner for the cost of constructing and installing the Tributary Stormwater Management Works and/or for the amount to be paid by the Owner in respect of a development charge imposed by a Development Charge By-law passed by the Town Council whether or not the development charge includes as a component that the whole or any part of the cost of either or both the Tributary Stormwater Management Works and the Soper Creek Erosion Works. The Owner hereby consents to the registration of the "front-end agreement" referred to in this paragraph 5.27(e) against the title to the Lands or such portion thereof as may be required by the Town in its discretion. (8) The Parties acknowledge that in accordance with the Town's previous policy, but for the enactment of the Act, the Town would have covenanted in this Agreement to endeavour to collect the "Property Frontage Charges" set out in Schedule UP" from owners of "Designated Areas" (also set out in Schedule UP") with the exception of the Owner, as development of the Designated Areas took Place, and after the collection thereof, to pay the same to the Owner in order to reimburse it for part of the cost of the Mearns Avenue Rural Upgrading Work. The Parties also acknowledge that because of the enactment of the Act and its provisions, the Town's policy requires modification so that it will be consistent with and implementable to the extent legally possible under the Act. Accordingly, notwithstanding paragraphs 5.27(3) and 5.27(4) of this Agreement, the Town agrees that in exchange for the Owner's construction and installation of the Mearns Avenue Rural Upgrading Works at its cost pursuant to the pre-servicing agreement, the Town hereby releases the Owner from the Owner's obligation to make the payments required by paragraphs 5.27(3) and 5.27(4) and the payment of the amount of forty-five thousand dollars ($45,000.00) which the Owner is required to pay to the Town pursuant to Schedule "I" as a contribution towards the cost of a sidewalk on Liberty Street. Further, until the day which immediately precedes the day of passing of the Development Charge By-law under the Act which is applicable to lands including the Lands, the Town will endeavour to collect the "Property Frontage Charges" (set out in Schedule "P")referable to such Works from the owners, with the exception of the Owner, of lands comprising the "Designated Areas" in accordance with the provisions of Schedule "P". If the Town is successful in its endeavour in whole or in part, it will reimburse the Owner from the amount(s) so collected up to the maximum amount of forty-three thousand dollars ($43,000.00). Either if the Town is not successful in its endeavour, or if the Town has not collected the full amount of forty-three thousand dollars ($43,000.00) as Property Frontage Charges from anyone or more such owners of the Designated Areas by the day immediately preceding the day on which the Development Charge By-law is passed, the Town's obligation to endeavour to collect and reimburse to the Owner the whole or any part of the aforesaid amount of forty-three thousand dollars ($43,000.00) which has not been collected theretofore is terminated, and the Town shall have no further liability to the Owner in respect of the payment or .' < ~ '-f3 , "1>1 , . . - 40- reimbursement of the aforesaid amount of forty-three thousand dollars ($43,000.00) or so much thereof as remains uncollected on the day immediately preceding the day on which the Development Charge By-Law is passed. (9) Notwithstanding any other provision of this Agreement, the Parties hereto understand and agree that nothing contained in this paragraph 5.27 shall constitute a covenant by the Town to pass a Development Charge By-law or a by-law to authorize the making of either or both the "front-ending agreements" referred to in paragraphs 5.27(5) and 5.27(7) or to make either or both of such agreements or, except or is provided in paragraphs 5.27(3)(4), and (8) to reimburse or to take any steps to reimburse the Owner for any part of the cost of the External and/or Oversized Works. If by-laws to authorize the making of either or both such "front-ending agreements" are not passed by the Town Council, or if either or both such agreements are not made, or if made are changed by the Ontario Municipal Board, or if the obligations of the Parties to either or both such "front-ending agreements", if made, are changed by the Ontario MunicipaI Board, or if the obligations of any owner(s) of land within the intended relevant "benefiting area" referred to in paragraphs 5.27(5) and 5.27(7) are changed by the Ontario Municipal Board, the Owner agrees that the Town is not required and the Owner will not require the Town to make any payment to the Owner or to reimburse the Owner in any manner and from any source that may be available to the Town in respect of the whole or any part of the cost of providing either or both of the External and/or Oversized Services referred to in paragraphs 5.27(5) or 5.27(7). Further, the Owner agrees with the Town that the Owner will not take any step to seek an exemption from the Town's Development Charge By-Law if passed, or to seek or claim a reduction of or a credit in respect of the amount of the development charge imposed by the By-Law which in any way is based on the expenditures made or to be made by the Owner in respect of any of the External and/or Oversized Services referred to in this Agreement or the payment of or agreement to pay Development Levies in accordance with this Agreement. Without limiting the the generality of the foregoing, the Owner further agrees with the Town that if the Town passes a Development Charge By-law applicable to the Lands which comes into effect and the development charge is based on the "net capital cost" of "services" (both terms as defined in the Act), that results or will result from development in all or a defined part or parts of the Town, the Owner will not object to such by-law nor complain under the Act of the development charge imposed by the by- law, or the amount that the Owner or any other person will be required to pay in respect of development of the whole or any portion of the Lands on the ground that the cost of any of the ExternaI and/or Oversized Services or the provision of such Services or any of them has been provided by the Owner, or such cost has been provided for in this Agreement, has or has not been included in the development charge or that the development charge should have been imposed in respect of a different defined area(s) of the Town or the whole Town. 6. RESPONsmILITY OF SUBSEQUENT OWNERS After the issuance of the Certificate of Release, the Owner, its successors and assigns as the owner of each lot or block on a registered plan of subdivision which implements the Plan shall have the sole responsibility for the following which shall be performed or undertaken at his cost: (a) He shall be responsible for providing and maintaining adequate drainage of surface waters from such lot or block in accordance with the approved lot grading and drainage plans referred to in paragraph 5.6 herein. (b) He shall be responsible for compliance with the terms of paragraph 4.5 "Requirements for Building Permits" of this Agreement if, at the date of issuance of the Certificate of Release, a building permit has not been issued for the lot or block in question. (c) He shall be responsible for the maintenance of fencing required in Schedule "G" and Paragraph 4.12(9) of this Agreement. 7. TIME OF ESSENCE Time is of the essence of this Agreement. , t 1 1 . I " . ~ ~tf - 41 - 8. AUTHORITYTO MAKE AGREEMENT The Owner acknowledges and agrees that the Town bas 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 Town 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: ) THE CORPORATION OF ) TOWN OF NEW ASTLE ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ElRAMD~~COBP. ~. - ~~.-t " jI1t ..' I.P .C.,,-I- & II. ~c i /J, (',.,d.,'" of L BANK OF COMMERCE d. HARTl Ll. CltETAIt'I PtRfl'1M J- ~ ,~,.. .. ."f':t~~~y ~&fjl . " ,., " . . . / j SCHEDULE "A" THIS SCHEDULE IS SCHEDULE "A II to the Agreement which has been authorized and approved by By-Law No. 91-11 of the Corporation of the Town of Newcastle, enacted and passed the 28th day of January, 1991. LEGAL DESCRIPTION OF THE LANDS All and Singular that certain parcel of land and premises, situated, lying and being in the Town of Newcastle and the Regional Municipality of Durham, and being comprised of Part of Lots 9 and 10 in Concession Number 2 of the Geographic Township of Darlington, more particularly described as Part 1 on Plan 10R-3790. ;ff '-/~ . '. / j , .' " . ~CHEDULE "B" THIS SCHEDULE IS SCHEDULE "B" to the Agreement which has been authorized and approved by By-Law No. 91-11 of the corporation of the Town of Newcastle, enacted and passed the 28th day of January, 1991. 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SCHEDULE "c" THIS SCHEDULE IS SCHEDULE "C" to the Agreement which has been authorized and approved by By-Law No. 91-11 of the Corporation of the Town of Newcastle, enacted and passed the 28th day of January, 1991. CHARGES AGAINST THE LANDS i (Paid prior to Execution) j (1) MUNICIPAL TAXES I (2) LOCAL IMPROVEMENT CHARGES (Paid prior to Execution) (3) DRAINAGE CHARGES (paid prior to Execution) $ Lfq I' " . ;fir ~D I ." SCHEDULE "D" THIS SCHEDULE IS SCHEDULE "D" to the Agreement which has been authorized and approved by By-Law No. 91-11 of the Corporation of the Town of Newcastle, enacted and passed the 28th day of January, 1991. DEVELOPMENT LEVIES Without fettering in any way the Town Council in the exercise of its discretion to pass a Development Charge By-law under the Development Charges Act, 1989 which imposes a development charge as permitted by that Act in respect of the development of Lands in all or part of the Town including the Lands, after the date of this Agreement, the Owner agrees to pay to the Town amounts of money (the "Development Levies") calculated by applying two thousand, nine hundred and seventy four dollars ($2,974.00) to each single- family dwelling and each semi-detached dwelling and two thousand, seven hundred and thirty dollars ($2,730.00) to each townhouse dwelling which the Owner proposes to construct on the Lands. The Owner shall make the following payments on account of Development Levies to the Town on the occasions set out below: Phase I of the DeveloDment of the Lands Phase I of the Development of the Lands, exclusive of Block 528 on Plan 18T89041 consisting of 32 semi-detached units and 115 townhouse units total amount: 115 units at $2,730/unit and 32 units at $2,974/unit = $409,118.00 is payable: (a) 25% of the aforesaid sum being $102,279.50 on the execution of this Agreement; (b) 25% of the aforesaid sum being $102,279.50 at the date of the issuance of the building permit for the first dwelling in Phase 1 of the Development of the Lands; (c) 25% of the aforesaid sum being $102,279.50 on the first anniversary of the issuance of the building permit for the first dwelling, or on the date of issuance of the building permit for the seventy-fourth (74th) dwelling in Phase 1 of the Development of the Lands, whichever date is the sooner; (d) the remainder of the aforesaid sum being $102,279.50, twenty- four (24) months following the date of issuance of the building permit for the first dwelling or on the date of issuance of the building permit for the one hundred and eleventh (lllth) dwelling in Phase 1 of the Development of the Lands, whichever date is the sooner; With respect to Block 528 on Plan 18T89041, the Owner will pay the Development Levies for the dwellings to be constructed thereon at the aforesaid townhouse dwelling rate at the time(s) and in the amounts determined by the Director of Planning no later than the date on which a site plan agreement is executed by the Owner in respect of the development of Block 528 pursuant to Section 40 of the Planning Act, 1983. Phase Subseauent to Phase 1 of the Development of the Lands (a) 50% of the Development Levies payable in respect of dwellings proposed for each Phase Subsequent to Phase 1 of the Development of the Lands are payable to the Town prior to the date of issuance of the first building permit for a dwelling in each such Phase; (b) 25% of the Development Levies payable in respect of dwellings proposed for each Phase subsequent to Phase 1 of the Development of the Lands is payable on the first anniversary . ..) . J' " , gr z;-/ - 2 - of the issuance of the first building permit for the construction of a dwelling in each such Phase or on the issuance of the building permit for construction of the dwelling which when combined with the building permits theretofore issued for dwellings in that Phase comprises 51% of the total number of building permits that may be issued for the construction of dwellings in that Phase, whichever date is the sooner; and (c) 25% of the Development Levies payable in respect of dwellings proposed for each Phase Subsequent to Phase 1 of the Development of the Lands is payable twenty-four (24) months following date of issuance of the first building permit for the construction of a dwelling in each such Phase or on the date of issuance of the building permit for the construction of the dwelling which when combined with building permits theretofore issued for dwellings permitted to be constructed in that Phase comprises 76% of the total number of building permits that may be issued for the construction of dwellings in that Phase, whichever date is the sooner. AMENDMENTS TO SCHEDULE SUbject to the provisions of the Development Charges Act, 1989: (a) The Town shall review its schedule of Development Levies annually and may adjust the amount of the Development Levies herein in accordance therewith. (b) The Owner hereby acknowledges and agrees to such annual adjustment and further agrees that such adjusted Development Levies shall be applicable to all lots or blocks within the Plan of which development levies remain due. References in this Schedule "0" and in any other provision of this Agreement to "Development Levies" are to be construed to be references to the Development Levies required to be paid by the Owner pursuant to paragraph 3.4 of this Agreement and this Schedule "D". They are not to be construed to be or to include references to a development charge that may be imposed by a Development Charge By-Law passed by the Town under the Development Charges Act, 1989. , ' r 11- ~ ~2 SCHEDULE "E" THIS SCHEDULE IS SCHEDULE "E" to the Agreement which has been authorized and approved by By-Law No. 91-11 of the Corporation of the Town of Newcastle, enacted and passed the 28th day of January, 1991. TRANSFBRS OF BASEMENTS The Owner shall deliver to the Town transfers of the following easements: 1) Tributary Stormwater Management Works Plan 10R-3953, pt1 and 2 2) Temporary turning circle (Swindells street) Plan lOR Pt1 3) Temporary park access (Swindells Street) Plan lOR Pt2 4) Storm sewers and overland flow route (Sumpter Square & Block 531) Plan lOR Pt - Easements wi thin each Phase Subsequent to Phase 1 of the Development of the Lands as may be required by and to the satisfaction of the Director, shall be transferred by the Owner to the Town prior to the registration against title of the 10M plan of subdivision for the Phase in question. 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 Town's solicitor, shall be made for a nominal consideration, and shall be in registrable form. Prior to the registration of the transfer(s) of such easements against the title to the applicable lands, the Owner agrees with the Town that it will not require the issuance of building permits for the construction of buildings or structures on the portion of the Lands within the 10M plan of subdivision in question. The easements for the Storm overland flow route and the Storm sewers and overland flow route shall be perpetual in duration. The easement for the Temporary turning circle (Swindells Street) shall terminate on the last to occur of (1) the date on which a certificate of Completion of Works has been issued for the extension of Swindells Street southerly to the constructed and dedicated easterly extension of Longworth Street from Liberty Street (WhiCh extension of Longworth Street has not been constructed at the date of the Agreement); (2) the date on which the Owner at its cost has completed the removal of the constructed turning circle from the area of such easement , has installed any necessary replacement curbing and sidewalks on Swindells Street in such area, has installed topsoil and sodded the boulevards, on such area to finish Swindells Street including the boulevard and sidewalks in the area of such easement to the satisfaction of the Director (the "Swindells Restoration) "); and (3) the date on which all of works comprising the Swindells Restoration have been accepted in writing by the Director. The easement for the Temporary park access (Swindells street) shall terminate on the date on which the land necessary to accommodate an extension of the Park proposed to be located on Block 529 of Plan 18T89041 to the constructed and dedicated easterly extension of Longworth street with a minimum frontage on the easterly extension of Longworth Street of one hundred and fifty (150) metres, has been transferred to the Town. . " . , . ff ,3 " , SCHEDULE "F" THIS SCHEDULE IS SCHEDULE "F" to the Agreement which has been authorized and approved by By-Law No. 91-11 of the corporation of the Town of Newcastle, enacted and passed the 28th day of January, 1991. LANDS TO BB TRANSFERRED TO TOWN AND/OR CASH TO BB PAID IN LIEU THEREOF (1) TRANSFER OF LANDS 1) 0.3 metre reserves................. Block 535 to 539 and 542 to 544 all on 18T-89041. 2) Road widening...................... Blocks 545 and 546 as shown on 18T-89041. 3) Fire station....................... Block 530 on 18T-89041. 4) Park............................... Block 529 on 18T-89041. 5) Walkways........................... Shown as part of Block 529 on 18T-89041 being Park Block. (2) CASH IN LIEU OF LANDS - NOT APPLICABLE r; < , SqHEDULE "G" THIS SCHEDULE IS SCHEDULE "G" to the Agreement which has been authorized and approved by By-Law No. 91-11 ot the Corporation ot the Town of Newcastle, enacted and passed the 28th day of January, 1991. WORKS REOUIRED 1. STORM SEWER SYSTEM The Owner shall construct, install, and supervise the construction and installation of and maintain a storm drainage system, satisfactory to the Town, for the removal and disposal of upstream storm water and storm water originating within the said lands, including storm sewer mains, manholes, service connections, catchbasins and leads, open channels, storm outfalls and any other appurtenances as may be required in accordance wi th the Town's Design Criteria and Standard Drawings. The Owner agrees to produce Engineering Drawings for the storm drainage system, to the satisfaction of the Director. The Owner agrees to obtain any easements required by the Director which are external to the said Lands, at no expense to the Town for the disposal of storm water from the said lands and transfer the same to the Town in accordance with paragraph 2.3 and 2.5 of this Agreement. 2. TRIBUTARY STORMWATER MANAGEMENT WORKS EXCLUSIVE OF SOPER CREEK EROSION WORKS The Owner shall design, construct, install, supervise and maintain all the stormwater management works specified in the "Stormwater Management Report" for this watershed prepared by G.M. Sernas and Associates Ltd. The construction of the Stormwater Management Works excluding the Soper Creek Erosion Works shall comply with the provisions of the "stormwater Management Report" as amended by the additions of any contingency items deemed necessary by the Director. The Owner agrees to obtain at the Owner's expense and on the date of execution of this Agreement to transfer to the Town any lands or easements considered necessary by the Director to accommodate the construction, implementation and/or maintenance of the Tributary Stormwater Management Works, exclusive of the Soper Creek Erosion Works. Paragraphs 2.3, 2.4 and 2.5 of this Agreement apply in respect of such transfers. The OWner agrees to maintain at its cost the Tributary Stormwater Management Works exclusive of the Soper Creek Erosion Works, to the satisfaction of the Director of Public Works until the expiry of the periOd of the Maintenance Guarantee in respect of it. They shall be maintained in a neat and tidy condition, compatible with the abutting land uses. The maintenance required shall include but not be limited to items such as periOdic grass cutting, control of noxious weeds, collection and disposal of litter and sediment and any maintenance works that may be necessary to maintain the intended function and operation of these Works. The Owner shall satisfy any requirements financial or otherwise which are allocated or assigned to it in the "Stormwater Management Report" and the "Cost Sharing Report" for this watershed as approved by the Director, forthwith after the Director gives the Owner written notice rE~quiring Owner to do so. 3 . ROADS . ' ~ 55 - 2 - The Owner shall construct and install the following roads and services on the streets shown on the Plan at its cost as follows: (a) (b) (c) (d) (e) (f) (g) (h) 4. Pavement widths to be applied to the following streets: - as shown on the Engineering Drawings. The grading and paving of all street, including the installation of Granular "A" and Granular "B" material to provide a proper base for paving, shall be in accordance with the Town's Design criteria and Standard Drawings. The Owner shall construct curbs and gutters on both sides of all streets, in accordance with the Town's Design criteria and Standard Drawings. The OWner shall construct, install and maintain complete sidewalks in accordance with the Town's Design criteria and Standard Drawings, as shown on the Engineering Drawings. The owner agrees to grade and pave all driveways between the curbs and sidewalks, in accordance with the Town's Design criteria and Standard Drawings. The Owner also agrees to grade and pave all driveways between the curbs and sidewalks, where sidewalks are installed, and in all other cases, to grade and gravel the driveway between the curbs and the lots lines. The Owner agrees to construct, install, energize and maintain street lighting, in accordance with the Town's specifications, on all streets and walkways and this Agreement, to the satisfaction of the Director of Public Works. The Owner agrees to install topsoil and sod the boulevards between the curbs and the property line, in accordance with the Town's Design criteria and Standard Drawings and the approved Landscaping Plan, to the satisfaction of the Director of Public Works. The Owner agrees to supply and install traffic signs and permanent street-name signs, in accordance with the Town's Design criteria and Standard Drawings and to the satisfaction of the Director of Public Works. PEDESTRIAN WALKWAYS The Owner agrees at its cost to construct, install and maintain in accordance with this Agreement completed pedestrian walkways, inCluding all boundazy fencing and lighting, in accordance with the Engineering Drawings, the Town's Design criteria and Standard Drawings and the Landscaping Plan. All such pedestrian walkways shall be: (i) ( ii) (iii) (iv) 5. paved or concrete from edge to edge; properly drained; fenced and screened; and extended to the curb of any intersecting street with provide appropriate curb cuts being provided at these locations. TEMPORARY TURNING CIRCLE The Owner shall transfer to the Town an easement for the Temporary turning circle required by the conditions of draft approval of the Plan in accordance with the Town's Standard Drawings, and shall construct and maintain such turning circle in accordance with the Town's Design criteria and Standard Drawings, to the satisfaction of the Director of Public Works. On the termination of the I, , / 66 - 3 - easement for the Temporary turning circle (Swindells street), Part on Plan lOR shall be transferred by the Town tor a nominal consideration to the Owner or to its successor or assign(s) who then own the lots on the Plan which abut the easement area for the Temporary turning circle. 6. CONSERVATION WORKS In addition to the work required by the Schedule "Q", the Owner shall construct, install and maintain certain conservation works within this Plan, such as retaining walls, drainage channels and watercourse channelization works, including all appurtenant fences and all other apparatus, in accordance with the Engineering Drawings approved by the Director of Public Works. 7 . LOT GRADING The Owner agrees to rough grade the Lands in accordance with the Tree Preservation Plan and the Grading and Drainage Plan, to the satisfaction of the Director forthwi th following the Director giving the Owner written notice requiring it to do so. 8. LANDSCAPING (a) The Owner shall complete and install all landscaping requirements for the roads and pedestrian walkways provided for in this Agreement and the installation of noise fencing and fencing in accordance with the approved Landscaping Plan referred to in paragraph 4.2 and Schedule "U" of this Agreement. (b) The Owner shall provide, plant and maintain, under the supervision of a qualified nurseryman or horticulturist the tree and shrub planting requirements provided for in this Agreement in accordance with the Landscaping Plan. 9. EXTERNAL ANDIOR OVERSIZED WORKS (A) ROADS AND SERVICES (a) Subject to paragraph 5.27 (2) of this Agreement, the Owner shall reconstruct the following roads at its expense: (i) Mearns Avenue from Concession Street North to Concession Road NO.3; The reconstruction program will include: (i) excavation; (ii) grading and drainage; (iii)installation of granular "A" and "B"; (iv) asphalt paving; (v) topsoil and sodding of ditches; and (vi) street lighting (the "Reconstruction Work"). (b) All Reconstruction Work shall be completed in accordance with the Town's Design criteria and Standard Drawings and the Engineering Drawings. (c) Without derogating from the provisions of paragraph 5.27 of this Agreement, the Owner agrees to pay all of the costs of any Works on Concession Road No. 3 which in the Director's opinion are required for the short term prior to the future reconstruction of Concession Road No.3 in order to accommodate the anticipated vehicular traffic from Phase 1 of the Development of the Lands and each Phase Subsequent to Phase 1 of the Development of the Lands. It is presently . ' (d) (B) (e) (f) (g) ;fr ~? - 4 - contemplated by the Parties that no such Works will be required since access to street B on Plan 18T-89041 from Concession Road No. 3 will not be permitted until such time as Concession Road NMo. 3 is reconstructed. Until that time, street B will be terminated at its northerly limit as shown on the Engineering Drawings. The Owner agrees to enter into a cost sharing agreement with the Town for the construction of sidewalks on Liberty street from Concession Road No. 3 southerly to Concession street, containing terms which are satisfactory to the Oirector of Public Works. QTijER WORKS Subject to paragraph 5.27 of this Agreement, the Owner agrees to contribute to the cost of the Soper Creek Erosion Works as allocated and assigned to him by the "Stormwater Management Report" and the "Cost Sharing Report" as approved by the Director. SUbject to paragraph 5.27 (10) of this Agreement, the Owner shall contribute to the construction of a sidewalk on the east side of Liberty street, in the amount set out on Schedule "J". Prior to the commencement of the development of the next Phase subsequent to Phase I of the Development of the Lands, the Owner's contribution to the construction of the sidewalk on Liberty Street and the Soper creek, Erosion Works of the Soper Creek as set out on Schedule "J" shall be confirmed and updated to current dollars by the Oirector in his discretion, and the payment of these revised costs shall be made to the Town of Newcastle by the Owner forthwith after it is given written notice of the Director's determination. . .! , , , " . .i1 .<;<6 SCHEDULE "H" THIS SCHEDULE IS SCHEDULE "H" to the Agreement which has been authorized and approved by By-law No. 91-11 of the Corporation of the Town of Newcastle, enacted and passed the 28th day of January, 1991. 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 . STREET LIGHTING SYSTEM The Owner shall arrange with the appropriate authority having jurisdiction for the design, provision and installation of a complete street lighting system to serve the said Lands on behalf of the Town in whose ownership the system shall vest upon acceptance of the works including all appurtenant apparatus and equipment, in the locations as approved by the Director. The Owner shall furnish written evidence satisfactory to the Director that such arrangements have been made prior to the issuance of any Authorization to Commence Works. 3. TELEPHONE SYSTEM The Owner shall arrange with Bell Canada for the design, prov1s10n and installation of a telephone system to serve the said lands, as approved by the Director. All telephone services are to be installed underground. The Owner agrees to enter into agreement with Bell Canada for any facilities and easements required by said agency for the servicing of Plan 18T-89041. 4. GAS SUPPLY SYSTEM The Owner shall arrange with the 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. 5. 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 and installation of a complete cable television distribution system to serve the said Lands. All cable television services are to be installed underground. 6. 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. ,I It. # 61 "1 ,.. ~ , , , SCHEDULE II I " THIS SCHEDULE IS SCHEDULE "I" to the agreement which has been authorized and approved by By-law No. 91-11 of the Corporation of the Town of Newcastle, enacted and passed the 28th day of January, 1991. 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 drafts of the following for the consideration and approval of the Director: (a) the Engineering Drawings; (b) the Grading and Drainage Plan; (c) the Landscaping Plan; (d) the Schedule of Work; (e) the staging Plan; (f) the Works Cost Estimate; and (g) the stage Cost Estimate. 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, or documents or from liability for any damage or loss caused or resulting directly or indirectly by the Owner's Engineer. 2. REPRESENT OWNER AND OBTAIN APPROVALS The Owner's Engineer is hereby authorized by the Owner and shall act as the Owner's representative in all matters pertaining to the construction and installation of the Works and shall co-operate with the Town to obtain the necessary approvals for construction and installation. 3. PROVIDE RESIDENT SUPERVISION The Owner's Engineer shall provide fully qualified supervisory layout and inspection staff to provide continuous inspection service during all phases of the construction and installation of the Works, the plumbing, drainage and irrigation systems for the Eiram Park and the Private Works and to perform the following: (a) provide field layout including the provision of line and grade to the contractors and, where required, restaking; and (b) inspect the construction and installation to ensure that all work is being performed in accordance with the contract documents; and (c) arrange for or carry out all necessary field testing of materials and equipment installed or proposed to be installed at the request of the Director; and (d) provide co-ordination and scheduling of the construction and installation in accordance with the timing provision contained herein and the requirements of the Director; and (e) investigate and report to the Director any unusual circumstances which may arise during the construction and installation; and (f) obtain field information, during and upon completion of the construction and installation, required to modify the Engineering Drawings to produce the as-constructed drawings. , , I J lit - 2 - 4. MAINTAIN RECORDS The owner's Engineer shall maintain all records pertaining to the construction and installation. 5. PROVIDE PROGRESS REPORTS The Owner's Engineer shall provide the Director with reports on the progress of the construction and installation 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 the As-constructed Drawings for the approval of the Director. .~ ~O f . , (;, ( 1 .. I J ~ SCHEDULE "J" THIS SCHEDULE IS SCHEDULE "J" to the Agreement which has been authorized and approved by By-law No.91-11 of the Corporation of the Town of Newcastle, enacted and passed the 28th day of January, 1991. WORKS COST ESTIMATES ESTIMATED COST OF WORKS (Phase 1 of the Development of Lands) STORM SEWERS (including pipes, manholes catchbasis and connections, headwalls and appurtenances) $1,339,107.10 TRIBUTARY STORMWATER MANAGEMENT WORKS 350,000.00 ROADS (including final grading, Granular bases, asphalting, curbs and gutters, sodding and boulevards) INTERNAL Year 1 Year 2 573,403.10 395,784.20 EXTERNAL MEARNS AVE. 545,333.50 LANDSCAPING (including tree planting, fencing, etc.) 89,400.00 STREETLIGHTING 75,000.00 SUBTOTAL $3,368,027.90 ENGINEERING AND CONTINGENCIES 505,204.19 $3,873,232.09 SUBTOTAL LIBERTY STREET SIDEWALK 45,000.00 $3,918,232.09 TOTAL ESTIMATED COST OF WORKS The Performance Guarantee for the Works shall be based on the preliminary estimates which are provided 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 Cost Estimate for the construction and installation of the Works shall be prepared by the Owner's Engineer and submitted to the Director for approval. The revised Cost Estimate shall be had regard to by the Director in requiring an adjustment in the Performance Guarantee, in the event of any increase or decrease in the Cost Estimates. I' , " - 2- STORMWATER MANAGEMENT WORKS ON WEST BRANCH OF SOPER CREEK Total estimated costs Owner's share $2,057,000.00 $85,620.00 STORM SEWER OVERSIZING ON MANN STREET Total estimated costs Owner's share $371,907.12 $42.741.83 ~ 62 11, ., . , j,1/ fe} . '. . SCHEDULE "K" THIS SCHEDULE IS SCHEDULE "K" to the Agreement which has been authorized and approved by By-law No. 91-11 of the Corporation of the Town of Newcastle, enacted and passed the 28th day of January, 1991. INSURANCE REQUIRED 1. TYPES OF COVERAGE REQUIRED 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 Town's Treasurer and licenced in ontario to underwrite such insurance. Such policy or policies of insurance shall indemnify the Town 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; and (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; and (c) any injury to any person or persons including workmen employed on the said Lands and the public; and (d) any loss or damage that shall or may results from the storage, use or handling of explosives; and (e) any loss or damage that shall or may result from the drainage of surface waters on or from the said Lands; and (f) 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 Town 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 and utilities pertaining thereto. 2. AMOUNTS OF COVERAGE REQUIRED Policy or policies of insurance shall be issued jointly in the names of the Owner and the Town and shall provide the following minimum coverages for Five Million Dollars ($5,000,000.00) for all damage arising out of one (1) accident or occurence or series of accidents or occurences. The issuance of such policy or policies of insurance or the acceptance of it or them by the Town shall not be construed to relieve the Owner from responsibility for other or larger claims for which it may be held responsible. 3. EXEMPTION 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; or (b) any pile driving or caisson work; or (c) any collapse or subsidence of any building, structure or land from any cause; or Cd) any storage, handling or use of explosives. J 1. _ 't , ~ {;G( , I., . ., SCHEDULE "L" THIS SCHEDULE IS SCHEDULE "L" to the Agreement which has been authorized and approved by By-law No. 91-11 of the Corporation of the Town of Newcastle, enacted and passed the 28th day of January, 1991. REGULATIONS FOR CONSTRUCTION 1. REQUIREMENTS FOR BLASTING The Owner shall, prior to commencing any blasting, obtain from the Director, permission to carry out the blasting operation. 2. REMOVAL OF TOPSOIL The Owner shall not remove any topsoil from the said Lands except for construction purposes and such topsoil must remain within the limits of the said Lands. 3. 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 Town other than the roads within the limits of the said Lands, without the written consent of the Director. 4. DISPOSAL OF CONSTRUCTION GARBAGE All construction garbage and debris from the said Lands must be disposed of in an orderly and sanitary fashion in a dump site off the said Lands and approved by the Director. The Town shall not be responsible for the removal or disposal of garbage and debris. The Owner agrees to deliver a copy of this clause 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. 5. QUALITATIVE AND QUANTITATIVE TESTS The Owner agrees that the Town may have qualitative or quantitative tests made of any materials or equipment installed or proposed to be installed. The costs of such tests shall be paid by the Owner. 6. MAINTENANCE. CLOSING AND USE OF EXTERNAL ROADS. The owner shall, at all times during the life of this Agreement ensure that all public roads abutting the said Lands and all public roads used for access to the said Lands, during any construction on the said Lands, shall be maintained in a condition equal to that now existing and to the approval of the Director. The Owner shall maintain, at all times, all such roads free of dust and mud originating from the lands during the course of construction. If damaged, the Owner agrees to restore immediately, and at its own expense, such road to a condition equal to that existing at the time of such damage and to the approval of the Director. No public road outside the limits of the said Lands shall be closed without the prior written approval of the authority having jurisdiction over such pUblic road. The Owner agrees not to use or occupy any untravel1ed portion of any public road allowance without the prior written approval of the authority having jurisdiction over such public road allowance. 7. MAINTENANCE OF INTERNAL ROADS The owner shall, prior to the placement of the base course of asphalt on any road required to be constructed under this Agreement, remove any contamination of the granular base course and , I, I , , , ' , - 2 - 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, the owner shall, prior to the placement of the surface of asphalt on any road required to be constructed under this Agreement, clean the base course of asphalt and repair and replace such base course where necessary. until the internal roads are assumed by the Town, 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. 8. 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. ~ ';6 I', I J I SCHEDULE "M" THIS SCHEDULE IF SCHEDULE "M" to the Agreement which has been authorized and approved by By-law No. 91-11 of the Corporation of the Town of Newcastle, enacted and passed the 28th day of January, 1991. USE OF THE LANDS The Owner agrees that the said Lands shall not be used for any purpose other than as set out in the following table: LOT OR BLOCK NUMBER LAND USE 1} Lots 1 to 527 Blocks 528, 531, 532, 533 and 534, on Plan 18T-89041. In accordance with By-law 84-63 as amended ~ ~~ . , , ' , ~ G 7 SCHEDULE "N" THIS SCHEDULE IF SCHEDULE "N" to the Agreement which has been authorized and approved by By-law No. 91-11 of the corporation of the Town of Newcastle, enacted and passed the 28th day of January, 199 LAND UNSUITABLE FOR BUILDING The Owner agrees that no application will be made for a Building Permit for the erection of any structure on the lands listed in the following table, until the conditions listed in the following table have been satisfied to the approval of the Directors of Public Works and/or any other Authorities having jurisdiction. LOT OR BLOCK NUMBER LAND USE Lots 57 to 60, Plan 18T-89041 Lots 59 to 68, Plan 18T-89041 See section 4.12(8) Not to be developed until the park has been extended and permanent access is obtained to the south through lands owned by others until such time the said lots are to be graded and seeded in conjunction with the park and to be utilized as a temporary access and frontage to the park to the satisfaction of the Director of community Services. Lots 228 to 234 inclusive, on Plan 18T-89041 No building permit to be issued until the development of Block 531 has received all applicable approvals. Block 531 Future development upon receipt of all applicable approvals. Block 532, 533, 534 on Plan 18T-89041 Future development upon receipt of all applicable approvals. Furthermore, the Owner agrees not to develop each except in conjunction with adjacent lands, and further agrees to maintain these blocks until they are developed. Lots 49 to 58, inclusive, and Lots 69 to 72, inclusive Not to be developed until the outfall for the storm sewer serving these lots has been approved in writing by the Director. I I, I I I ~ 6<;1 . . SCHEDULE "0" THIS SCHEDULE IF SCHEDULE "0" to the Agreement which has been authorized and approved by By-law No. 91-11 of the Corporation of the Town of Newcastle, enacted and passed the 28th day of January, 1991. LAND REOUIRING SITE PLAN APPROVAL The Owner agrees that no application will be made for a Building Permit for the erection of any structure on any of the lands listed in the following table until a site plan agreement has been entered into the Town pursuant to section 40 of the Planning Act, 1983, and the building permit complies in all respects with the terms of the site plan agreement. LOT OR BLOCK NUMBER Block 528 on 18T-89041.......................Medium Density Block . . f . , ' , ~ 01 , " SCHEDULE "P" THIS SCHEDULE IS SCHEDULE "P" to the authorized and approved by By-Law No. Town of Newcastle, enacted and passed 1991. Agreement which has been of the Corporation of the the 28th day of January, OVERSIZED AND/OR EXTERNAL SERVICES 1. KEARNS AVENUE RURAL ROAD UPGRADING WORK: This Work means the reconstruction of Mearns Avenue to a rural road standard on the ultimate urban road profile which in future can be widened to an urban road standard in accordance with the Town's Design criteria and Standard Drawings. The limits of the construction are from Concession Street northerly to Concession Road 3. The reconstruction program includes: (i) ( ii) (iii) (iv) (v) (vi) Excavation Grading and Drainage Storm Sewer; Road only (MH#94 to headwall) Installation of Granular "A" and "B" Asphalt paving Topsoil and sOdding of ditches Total Estimated Costs: Owner's Share: $806,714.28 $141,204.37 2. KEARNS AVENUE URBAN UPGRADING WORK: This Work means the road widening of Mearns Avenue to an urban road standard from Concession street northerly to Concession Road 3 in accordance with the Town's Design Criteria and Standard Drawings. The road widening program includes: (i) ( ii) (iii) (iv) (v) (vi) (vii) (viii) (x) Excavation Grading Installation of storm sewers Installation of curb and gutter Installation of Granular "A" and "B" Asphalt paving Topsoil and sodding boulevards Sidewalks street Lighting Total Estimated Costs: Owner's Share: $1,552,500.00 $139,370.63 3. CONCESSION ROAD 3 RURAL ROAD UPGRADING: This Work means the reconstruction of Concession Road 3 to a rural road standard on the ultimate urban road profile which in future can be widened to an urban road standard in accordance with the Town's Design criteria and Standard Drawings. The limits of the construction are from Liberty Street easterly to Mearns Avenue. The reconstruction program includes: (i) (ii) (iii) (iv) (v) Excavation Grading and Drainage Installation of Granular "A" and "B" Asphalt paving Topsoil and sodding of ditches Total Estimated Costs: Owner's Share: $264,875.00 $132,437.50 I I , J J { V\ 70 . If :t - 2 - 4. CONCESSZON ROAD NO. 3 URBAN ROAD UPGRADING This Work means the road widening of Concession Road 3 to an urban road standard from Liberty street easterly to Mearns Avenue in accordance with the Town's Design criteria and Standard Drawings. The road widening program includes: ( i) (ii) (iii) (iv) (v) (vi) (vii) (viii) (x) Excavation Grading Installation of storm sewers Installation of curb and gutter Installation of Granular "A" and "B" Asphalt paving Topsoil and SOdding boulevards Sidewalks Street Lighting Total Estimated Costs: Owner's Share: $611,250.00 $305,625 5. STORK SEWER WORK: This Work means the construction of oversized storm sewers (in excess of Mearns Avenue road drainage) on Mearns Avenue and more specifically includes the installation of storm sewers and manholes from manhole 194 southerly to the headwall of the Stormwater Management Facility as shown on G.M. Sernas Ltd. Project No. 89020, Drawing G-10 and G-l04, dated September, 1990. Total Estimated Costs: Owner's Share: $465,608.40 $349,706.00 6. TRZBUTARY STORMWATER MANAGEMENT WORKS CexcludiD9 the Soper Creek Erosion Work): This Work means stormwater management works for the entire watershed and more specifically, the construction of a Stormwater Management Facility, landscaping, fencing, erosion protection (from the Stormwater management Facility to the Soper Creek) and engineering and contingencies. These works are defined on G.M. Sernas Project No. 90104 Drawing PND 1, dated September, 1990 and Drawing PND 2, dated September, 1990 and the Stormwater Management Report prepared by G.M. Sernas Ltd., draft dated December, 1990. Total Estimated Costs: Owner's Share: $880,000.00 $455,172.41 7. SOPER CREEK EROSION WORKS: This Work means the erosion protection of the Soper Creek downstream of the Tributary Stormwater Management Works and will be defined in the Stormwater Management Report prepared by G.M. Sernas Ltd., draft dated December, 1990 as it is to be amended and approved by the Director. The Report will establish the Total Estimated Costs and the Owner's Share of the Total Estimated Costs of the Works. '. , ~, , , , , , , -3- 16 15 17 '.\ / -- M:Wl) ._ - - ! 7 '-."'-" '\, \ \ \ I , , iV , , I ') l; r ( 8 2 ~\ '"''Ii \ to \. 't': I . DESIGNATED AREAS ~ 7( liIa0S ~~~ "". ill " I ! I I j I II : I . : ~, i I , II ------ 'I ~--""~'11 r-~ ), . ! I if ~i I ill , I 11I1 ' II! ~II , I I, ILl J ":'::1 ['- DATE, MAR.lSI , , . f . 1'1 DESIGNATED AREAS 1 2 3 4 5 6 7 8 9 ~ ?~ - 4 - OWNERS OF DESIGNATED AREAS PROPERTY OWNERSHIP (Karch 1991) Carol Margaret Wonnacott c/o Frank Wonnacott 900 Wilson Road North Apt. 1310 Oshawa, Ontario L1G 7T2 Schickedanz Developments Ltd. 3311 Bayview Avenue suite 105 Willowdale, ontario M2K 1G4 George Edward Bellman/Jeanne Helen Bellman Mearns Avenue R.R. #4 Bowmanville, Ontario L1C 3K5 Ontario Land Corporation Ministry of Government Services Realty Service Branch 13th Floor - Ferguson Block 77 Wellesley Street West Toronto, ontario M7A 1N3 participation House Project (Durham Region) Inc. 500 Wentworth street East unit 3 Oshawa, ontario L1H 3V9 Carol Mae Anderson Lawrence Edward Paradis 98 Concession street East R.R. #4 Bowmanville, Ontario L1C 1Y1 Eiram Developments Corporation Unit 7 221 North Rivermede Road Concord, Ontario L4K 3N7 Marilyn Webb c/o Frank Wonnacott 900 Wilson Road North Apt. 1301 Oshawa, ontario L1G 7T2 824060 ontario Limited 221 North Rivermede Road Unit 7 Concord, Ontario L4K 3N7 . I ,\ , . , " ~ ?J - 5 - 10 819363 ontario Incorporated (In Trust) Liza Developments Corp. 16 Sims Crescent Unit 16 Richmond Hill, Ontario L4B 2P1 11 Emily & Deminico Marachetti 11 Botfield Avenue Etobicoke, ontario M9B 4E6 12 Jaro Andanne Rimes R.R. #4 Bowmanville, Ontario L1C 3K5 13 621182 Ontario Limited 16 Sims Crescent Unit 16 Richmond Hill, Ontario L4P 2P1 14 Ashdale Capital Corporation Ltd. c/o Laurie J. Jacques Atlin, Goldenberg 55 University Avenue suite 800 Toronto, ontario M5J 2K4 15 Wayne C. Inez & Irene Bradley R.R. #4 Bowmanville, ontario L1C 3K5 16 Kathleen & Allan Stephen R.R. #4 Bowmanville, Ontario L1C 3K5 17 Coombes-Credit Point Developments 2350 Doulton Drive Mississauga, ontario L5H 3M3 , 1II ( f.L-, , , , , '. ~ 7c.f - 6 - KEAlUtS AVENUE RURAL ROAD UPGRADING WOU COST SHARING AREA NO.. PROPERTY FRONTAGECOSTS TOTAL STORM FRONTAGE ROADWORKS SEWERS WEST SIDE 14 Willowbrook 305 m $49,562.50 $0.00 $49,562.05 13 ilia Dev. (I) 269 m $43,712.50 $0.00 $43,712.50 11 Marachetti 540m $87,750.00 $0.00 $87,750.00 10 Liza Dev.(n) 100 m $16,250.00 $3,167.95 $19,417.95 8 Webb 166m $26,975.00 $8,189.14 $35,164.14 7 Biram 522m $84,825.00 $56,379.37 $141,204.37 9 824060 Ontario Ltd. 168 m $27,300.00 $7,653.02 $34,953.02 EAST SIDE 4 M.G.S. 1050 m $170,625.00 $0.00 $170,625.00 3 Bellman 70m $11,375.00 $0.00 $11,375.00 2 Schickedanz 420 m $68,250.00 $9,891.39 $78,141.39 1 Wannacott 530m $86,125.00 $48,683.41 $134.808.41 $672,750.00 $133,964.28 $806,714.28 SUMMARY OF THE OWNER'S ESTIMATED COSTS AND PAYMENTS FOR EXTERNAL ROADS (MEARNS AVENUE AND CONCESSION ROAD NO.3) Owner's estimated costs for Mearns Avenue Rural Road Upgrading Work Less Payments from the Owner with respect to paragraphs 5.27(3) and 5.27(4) ($438,062.50 + $280,575.00) $806,714.28 $718.637.50 $ 88,076.78 Difference , , , " ~ SCHEDULE "0" THIS SCHEDULE IS SCHEDULE "Q" to the Agreement which has been authorized and approved by By-law No. 91-11 of the Corporation of the Town of Newcastle, enacted and passed the 28th day of January, 1991. CONSERVATION AUTHORITY'S WORKS (1) Prior to the commencement of site preparations, the Owner shall obtain the Central Lake Ontario Construction Authority's ("e.L.O.C.A. ") approval of 100 year storm overland flow routing for the Plan. A brief report is to be submitted which illustrates overland flow routing for the site and any other affected developments in the Northeast Bowmanville Area. (2) Prior to the commencement of site preparation including the rough grading of roads, the Owner shall obtain C.L.O.C.A. approval of sediment control and grading plans for the subject lands. Furthermore, the Owner agrees to carry out, or cause to be carried out to the satisfaction of C.L.O.C.A. the above noted requirements. (3) The Owner agrees to maintain all stormwater management and erosion and sedimentation control structures operating and in good repair during the construction period in a manner satisfactory to the Ministry of Natural Resources and C.L.O.C.A. (4) The Owner agrees that the Northeast Bowmanville Master Drainage Plan including stormwater management, drainage and erosion control plans shall be prepared to the satisfaction of C.L.O.C.A. . ~.. r . " , , I, , j I ~ ?~ SCHEDULE "R" THIS SCHEDULE IS SCHEDULE "R" to the Agreement which has been authorized and approved by By-law NO.91-11 of the Corporation of the Town of Newcastle, enacted and passed the 28th day of January, 1991. ENGINEERING AND INSPECTION FEES FOR DEVELOPMENT Estimated Costs of Works ~ (Parts I, II, III, IV Schedule "J") Up to $100,000.00 $100,000.00 to $500,000.00 4% to a MAXIMUM OF $4,000.00 $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 include the estimated cost of Regional services. The payment of the Engineering and Inspection fees to the Town of Newcastle are subject to the Goods and Services Tax, and therefore an additional 7% must be added to the fees calculated using this schedule. The aforesaid amount is to be paid prior to issuance of the authorization to commence for each respective phase. , . ~ '77 I f ~ I I I SCHEDULE "s" THIS SCHEDULE IS SCHEDULE "s" to the Agreement which has been authorized and approved by By-law No. 91-11 of the Corporation of the Town of Newcastle, enacted and passed the 28th day of January, 1991. REGION'S CONDITIONS OF DRAFT PLAN APPROVAL 1. That this approval applies to draft plan of subdivision 18T- 89041, prepared by G.M. Sernas & Associates Ltd., identified as job number 89020, dated April 12, 1989 and revised November 1989, and further revised in red, which illustrates 332 lots for single-family dwellings, 80 lots for 160 semi-detached or linked dwellings, 115 lots for street townhouses, 1 block for medium density residential development, a park block, a block for a future fire station, a future development block, road widenings, site triangles and various 0.3 metre reserves. 2. That the road allowances included in this draft plan shall be dedicated as public highways. 3. That the road allowances included in this draft plan shall be named to the satisfaction of the Regional Municipali ty of Durham and the Town of Newcastle. 4. That Block 547 shall be dedicated as pUblic highway for the purposes of widening Liberty Street. 5. That 26 metre x 11 metre sight triangles at the northeast and southeast corners of proposed Street "A" and Liberty street, as widened, be conveyed, free and clear of all encumbrances, to the Region of Durham with the registration of the plan. 6. That Blocks 545 and 546 shall be dedicated as public highway for the purpose of widening Concession Road No. 3 and Mearns Avenue respectively. 7. That a 9 metre x 9 metre sight triangle at the southwest corner of Concession Road No. 3 and Mearns Avenue, as widened, be conveyed, free and clear of all encumbrances, to the Town of Newcastle with the registration of the plan. 8. That 0.3 metre reserves, shown as Blocks 540 and 541 on the draft plan, shall be conveyed to the Region of Durham. 9. That 0.3 metre reserves, shown as Blocks 535 to 539, and 542 to 544 on the draft plan, shall be conveyed to the Town of Newcastle. 10. That any deadends and/or open sides of road allowances created by this draft plan shall be terminated in 0.3 metre reserve(s) to be conveyed to the Town of Newcastle. 11. That Block 530 shall be dedicated to the Town of Newcastle for the purpose of constructing a fire station. 12. That the 3.0 metre walkways which form part of Block 529 on the draft plan shall be dedicated to the Town of Newcastle. 13. That the Owner submit a landscaping plan, a master drainage and lot grading plan, and a tree preservation plan to the satisfaction of the Town of Newcastle. 14. That the Owner submit a park site master plan prepared by a qualified landscape architect to the satisfaction of the Town of Newcastle. 15. The Owner agrees that where the well or private water supply of any person is interfered with as a result of construction , " , , $ ?~ .. .,- J ". - 2 - or the development of the subdivision, the Owner shall at his expense, either connect the affected party to municipal water supply system or provide a new well or private water 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. 16. That the OWner agrees not to develop Blocks 532, 533 and 534, except in conjunction with adjacent lands, and further agrees to maintain these blocks until they are developed. 17. That the Owner shall convey land (Block 529) to the Town of Newcastle for park or other public recreational purposes in accordance with the Planning Act, as amended. Alternatively, the municipality may accept cash in lieu of such conveyance. 18. That such easements as may be required for utilities, drainage and servicing purposes shall be granted to the appropriate authorities. 19. That the land uses shown on the approved draft plan shall be placed in appropriate zoning categories in a Zoning By-Law passed by the Council of the Town of Newcastle in accordance with the Planning Act 1983, as amended. 20. That the Northeast Bowmanville Master Drainage Plan including stormwater management, drainage and erosion control plans be prepared to the satisfaction of the Ministry of Natural Resources, the Central Lake ontario Conservation Authority and the Town of Newcastle. 21. That detailed plans be submitted regarding alterations to the watercourses. Any proposed al terations to the existing watercourses must receive approval by the Ministry of Natural Resources pursuant to the Lakes and Rivers Improvement Act. 22. Prior to the commencement of site preparation, the Owner shall obtain Central Lake ontario Conservation Authority approval of 100 year storm overland flow routing for the plan. A brief report is to be submitted which illustrates overland flow routing for the site and any other affected developments in the Northeast Bowmanville Area. 23. That prior to the commencement of site preparation, including the rough grading of roads, the Owner shall obtain Central Lake ontario Conservation Authority approval of sediment control and grading plans for the subject lands. 24. That the Owner agrees to implement the recommendations of the Acoustic Report entitled "Noise Impact study" prepared by G.M. Sernas & Associates Ltd., dated October 1989, which specifies the necessary noise attenuation measures for the proposed development. 25. That the Owner shall provide for the extension of such sanitary sewer and water supply facilities which are external to, as well as within, the limits of this plan that are required to service this plan. In addition, the Owner shall provide for the extension of sanitary sewer and water supply facilities within the limits of the plan which are required to service other developments external to this subdivision. Such sanitary sewer and water supply facilities are to be designed and constructed according to the standards and requirements of the Regional Municipality of Durham. All arrangements, financial and otherwise, for said extensions are to be made to the satisfaction of the Regional Municipality , , , " ~ 7~ - 3 - of Durham, and are to be completed prior to final approval of this plan. 26. That prior to entering into a subdivision agreement, the Regional Municipality of Durham shall be satisfied that adequate water pollution control plant and water supply plant capacities are available to the proposed subdivision. 27. That prior to final approval of this plan, the Owner shall satisfy all requirements, financial and otherwise, of the Town of Newcastle. This shall include, among other matters, the execution of a subdivision agreement between the Owner and the Town of Newcastle concerning the provision and installation of roads, drainage and other local services. 28. That prior to final approval of the plan, the Owner shall satisfy all requirements, financial and otherwise, of the Regional Municipality of Durham. This shall include, among other matters, the execution of a subdivision agreement between the Owner and the Region concerning the provision and installation of sanitary sewers, water supply, roads and other regional services. 29. That the subdivision agreement between the Owner and the Town of Newcastle shall contain, among other matters, the following provisions: a) The Owner shall carry out, or cause to be carried out, to the satisfaction of the Central Lake Ontario Conservation Authority, the recommendations referred to in the report required in Condition 20. b) The Owner shall carry out, or cause to be carried out, to the satisfaction of the Central Lake Ontario Conservation Authority, site grading, sediment control and major overland flow routing. c) The Owner agrees to implement the works in the approved reports and plans, as required in Conditions 20 and 21, to the satisfaction of the Ministry of Natural Resources. d) That the Owner agrees to maintain all stormwater management and erosion and sedimentation control structures operating and in good repair during the construction period in a manner satisfactory to the Ministry of Natural Resources and the Central Lake ontario Conservation Authority. e) That the Owner agrees to notify the Lindsay Ministry of Natural Resources at least 48 hours prior to the initiation of anyon-site development. 30. That prior to final approval of this plan for registration , the Commissioner of Planning for the Regional Municipality of Durham shall be advised in writing by: a) the Town of Newcastle, how Conditions, 1, 2, 3, 6, 7, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 24 and 27 have been satisfied; b) Central Lake ontario Conservation Authority, how Conditions 20, 22, 23, 29(a), 29(b) and 29(d) have been satisfied; and c) Ministry of Natural Resources, how Conditions 20, 21, 29(c), 29(d) and 29(e) have been satisfied. SCHEDULE "T" r-~ COO , " THIS SCHEDULE IS SCHEDULE "T" to the Agreement which has been authorized and approved by By-law No. 91-11 of the Corporation of the Town of Newcastle, enacted and passed the 28th day of January, 1991. TREE PRESERVATION PLAN (See attached Plan) . \...., ~.:;, .., It' ~ ......- +"'.~ eO ~. "'r tot... .,....,.....~.~- .... ~. ..' .:r.'(> ... ,. " .. .,t,~ . ..... <Ii... ... ,. ". ." ~.'- #. ' <I/o ..j ~ . 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" ... 'P. \ ... "::.-i 1-" .. \lJ~ '" .. .. ... \ ,'to.., ~. Rf,p~ERATlHG MEADOjY .~ 26;" ... !G. 27' ..w ~, " '" '" .. I:' i:, I . ..'......-......- ~ . ,. Wi ." i ill ",,'''i! I. . ~ ~ '. .' .. : ..'....., "'.. ...f. ' , l.....l~!:.\~:\.:!s: 10 ... ,-.. ... . D . , . ..~, ~li ~ It... ". 28. :'" ," ... .., :II r- i:i-.;~cn:~,,:~~;\-:;o.11 r- t~'~-----l ......lS'1'C.....'_ f &:~=~~~10 II'I""*,,,,'~ -, " $ 1 I I I I' -:~::.? ~ ; , 47 . ~'Q lOCA nON ......P .,. ,. 0......... "'..-. GENERAL NOTES , TI' .~_."_._- ---- ~~._--- -- ---~- _. '"-" _._---_.~~_._-- ~ ,- ----- - _... ._.~---.._--- ..... - REVISIONS () HENRY KORTEKAAS of: ASSOCIATES. LANDSCAPE AIlCHlTECTUllE, ENVIRONMENTAL . llECREATIDIW. 'LANHINC n_"':J!'i':::~U'W X11I1T'K.U$ CAP/) PLDmNfl '.... '=:" =.::' Uf .... '(RAlI "'VJ:LOPlI'Nr$ LTA IIDl1TJl 6J,sr ."rJIANVII,U vr"tAIOi ~'!t(RV.noH PlAtt -t.~ 0IIQIIQ1t' A.WJ1, -- A,WJ1. I!..~ , . , " , J SCHEDULE "U" THIS SCHEDULE IS SCHEDULE "u" to the Agreement which has been authorized and approved by By-law No. 91-11 of the Corporation of the Town of Newcastle, enacted and passed the 28th day of January, 1991. LANDSCAPING PLAN (See attached Plan) * 9~ ~~ - ~ ~.~_,.. - GOCa1I 'ow ao"'~ _. ...'. .......... ... 11--' ~,~ ~~ @ ACOUSTlCAI. FENer - 1.8Om POST SECTlON- 1 or 2 ,._, If . i- ~, L1 ~_..__..._... 'Q""""OI'~ vow... ~C\o.--" .....uD ., ....._....tnoo tIlE -- --- l......."""'....,..,.'O.aca..,.""..._....ru I..=..~,.~..:"""" LtC ~ QIO( roo' oV~...o ~~C). """".............. _ ~-._ ..."''''''''''....,''"''.to.tlR.tlD_~~.. '0 . ... $t-...w 1WCIC'rCI' __u ..1lI.I,........'O.OIOfrw_.wGRI 13\ ACOUSTICAl rENCE- UOm W ELEVATlON- 2 or 2 ::--l~_,"'.""" -".."''''''''' :::::..... - ....... .........Of'~ -.utIli..__.......... ~_lt....._ ~.....IIlIOGf~ ....... l'\lItIfIG ... .. __ ,.... tIIO w.q$ ... aDOf a.u. ..... fIlll.... ......,. .'t.""""i~......... . ~~-...... -.... ~...- -- . ....-. ........"., ,.... . ......... <<01'0",...... IPlln""''''''' _...~IlnRCI~...~ -.-....cwt.,.._ .... ... ........,,~, Q). 4 STANDARD TREE PLANTING L1 VERTICAl WOOO STAKES ....- (J //~) f .~. " I / / "\, /LJ l '. l ~._._--~-~-..L.--f.-i'-----:-. ", 1. or- ..l: .. ....... ~. ......., 10.... _ -.,~......""""'............ .... ....... .... .....-n O&......u.... _ .......,.... lO ... ~... fill .. ~ -- ................ " ..I), ..1~.J4..~. I i --t " \ Q. , , .. .!I).,,.~.. y' " '.. t;( ci .: .:z: ,) :::,~\ .~ \ ~~ ~" ~~ .~ ~~. ,~;.,... , ,r", " \ . / _.' ,"", \ .' -: \;: ~', . / :_.,....;:.~ ~""'r" . '::::~::,~~:;~,'ti '. (:') ,.':, \ '. ~ ;,~',\' .I \ I 1\\\! .r- ! J I\~-L ..",,~~~~, .----" . [J.1.\ l'j! , " f' , \ ,Q \.,' <( j' 'C) (Ill: '. :. ~ ",\ ,'" ..... ---- ' · 1.: :-~1'f';.;~~i~-~.~' . 'n~ ' . I ' , I. : I \ ' : i: \ "-" . I ! /11! " i .. O:z: , \- .__________n._. , , . ~ llH)' IA~~ 11-' '. .... '" \ ~""i~ . . I. ' . . ..... ..h..... . : : : ,I.. ,':: ~ --:-:- , , : :: ';': ., .. I ..' .r ~ ',' I~ ,..; i ....t. ~ i ...--...."\ ~~ , Cf- ; >( J AI. rn<C[ .... ~ ~ " Atdu&TUl mcc /- .;". /9~'~:-:~" ~~- --... -.~~"R~""';;-; -1, I { -- r', '\:' Iii .(,.... "..:~:J, l,'.~~) a -() - -. ---E;-'-.. -....; ~":"'~-.. ....-..... (~.::; if .~ ~. -\ c c.: '" I PLANT LIST-PHASE Ii. :. ,,: !i! :,i .' j: ) Ktl tcO. IOTAHICAL NAME COWMON NAWE 'SIzt ItEMMtCS "., .............~ ---.......... -- - .. ............- ...,. --.. _ ..______.............- ..... WIt .. 1........... ...... ........ ... _JIll I __.............. _ . .-.-.... _011I ......_ 1t ....-_ _ -.. r " ;,! .. , .., " ".......,1 .~ ~..I ....~ " " . ! t:- I .. ;/,' : '- " : "'i~ : C .-.....;----- ."., 0' o - ',. j -....... _..~. .-, , ... i '1 '''"-~ .. ('I /"\ / --I L! l I. /' . ~ h I ,. 1 ...- .. . . . . - "i 'l~__ ~.'.' ...-.. .........10....,..... NO _.- ,.....,. ,....... to.....,fl ..... ... .,.,............. tal' ~OIII."'___ , ................".,... . ................ . --~............. l:. :'i ...... .... '. .. ... _................-..,. -.-- t..,.~1fl'O.lIl.... a.ftlCtllOf"""""'-"'lII_ &. I <<<Ill ......... ,.,... __ ~... ...... ,*",fIIt.. ,..,. ___ _.., ...... ..-... .....____..fUN.... J...................,..... _-. @ AlTERIt/lTE IIOARD FENCE 100m", WOOD POSTS - 0: PARK DEVELOPMENT IlfrDt TO 1'LAlI& ~ - LD " I ~ i T , . \ l) J\ '. ~ ~- , ill ill ') ~ .,. :0 rj ~'. .;C.....r. .=~,.-:::. "'......,. ,- -.. , , .'.-~:t~:.y, .r ~, o j\f \ \ 0'- (; ~-; t . ~\ ..... ~ - ...~, <f"<":l.IJ:'~., ..'...... ...~ :~..:--;-:-';;-;;.-;--~_.~. \ .~ , , ~ i t "'j... :1...;; . ~. ..~ i'" 1 '...I . , db .ot ,i p I., I,' LOCATION MA' .... .r ......."',&-.. GENERAL NOTES ....-.-....-------- ......_...IIt~_ --- ..- --....-.-... -- .....fUIIlf..______._C1J ........... -..........--- ... --",.... ........... ..~....,._..~.... =-=-~::-~,-- - "===--===-111I" -- . r: ~ Lttf or PttAS[ I - _., Ulol DOMD fPlCI: 1.60 ACOU&T&Al. fPlCI: I'tHCf TO 11: "TO Tl1f NCU'5C& OIl LOT& n7Z.13.105 . 131 ~ REVISIONS HENRY KORTEKAAS I: ASSOCIATES ~ , ..-" \. I.ANDSCAPE ARCHIT[C1\/Il[, ENVlRON..ENTAl . RtCllfATlONAl P\.IoIlfCOOl 7" .. ...... ... __ ... ~" .. .,.,. -~.. DIf'l'llIUAS CAlUl I'/.MTtN(; '''............_~__l''... .,,~.nu _____ - /IIIWl DIVIlI.Ol'1I1N7'S LTD. "lNfrB JUST BOr_1.U _I - &_[T TItlr ~TttCo AND r[1lCING I'UII -.. ,,~ l~U:-L. f>."- 1'1000 -.. ~/2V'lO 11.-~ A-W.tt. -.. -";124.2 _1 ~ A-W.tt. lIa: 'c """"-\ '" '91 , , , " ~ cry SCHEDULE "V" THIS SCHEDULE IS SCHEDULE "V" to the Agreement which has been authorized and approved by By-law No. 91-11 of the Corporation of the Town of Newcastle, enacted and passed the 28th day of January, 1991. REQUIREMENTS FROM OTHER AGENCIES 1. Ministry of Natural Resourses (a) Detailed plans are to be submitted regarding alterations to the watercourses. Any proposed alterations to the existing watercourses must receive approval by the Ministry of Natural Resources pursuant to the Lakes and Rivers Improvements Act. Furthermore, the Owner agrees to implement the works as noted above. (b) The Owner agrees to notify the Lindsay Ministry of Natural Resources at least 48 hours prior to the initiation of any on- site development. (c) The Owner agrees that the Northeast Bowmanville Master Drainage Plan including stormwater management drainage and erosion control plans be prepared to the satisfaction of the Ministry of Natural Resources. I ' . " , $f g~ I ' 1\ SCHEDULE "w" THIS SCHEDULE IS SCHEDULE "w" to the Agreement which has been authorized and approved by By-law No. 91-11 of the Corporation of the Town of Newcastle, enacted and passed the 28th day of January, 1991. ARCHITECTURAL CONTROL STANDARDS The Owner agrees that all dwellings to be erected on the Lands shall satisfy the following architectural control standards: 1. Exterior Materials a) Exterior construction must be a minimum of 40% masonry products excluding stucco and concrete blocks. No substitution is allowed except by written permission of the Director of Planning and Development. b) Dwellings sited at corners require full height masonry products on all elevations. 2. Colours a) Colours of bricks, siding, roofs and trims must be compatible and in harmony such as earthtone range, pastel range, grey/black range etc. b) Where bricks are used, co loured mortar is required. c) Accent colour bricks for brick detailing is permitted provided if used consistently in group of dwellings. d) Colour of caulking around metal flashing or windows is required to match colour of brick or siding. 3. Repetition of Elevations and Stvles a) Any two dwellings abutting each other must exhibit a minimum of twenty-five percent (25%) exterior variations in elevations or colour schedule. b) Dwellings or identical elevation and/or colour schedule must be separated by a minimum of four (4) lots. c) Dwellings which m1m1C the influence of a particular architectural influence (eg. Georgian, Colonial, Spanish) are permitted only if constructed in a group reflecting the same architectural influence. 4 . Others a) All metal roof vents and stacks must be located in the rear slope of roofs and must be painted to match the roof colour if exposed to public view. b) All dwellings must carry brick veneers to within twelve (12) inches of grade on front elevation and within twenty (20) inches on side and rear elevations. Exposed concrete foundation in excess of the aforementioned standard will not be permitted. c) Builder is encouraged to vary siting and setback of dwellings. d) The above standards are minimum standards and builders are encouraged to exceed the standards as long as the objective of creating attractive and aesthetically pleasing appearance is achieved. ~ ~(/ I ' SCHEDULE "X" THIS IS SCHEDULE "X" to the Agreement which has been authorized and approved by By-law No. 91-11 of the corporation of the Town of Newcastle, enacted and passed the 28th day of January, 1991. WINTER ROAD CONSTRUCTION The owner covenants and agrees that the following provisions apply to the winter Road Construction program wi thin Phase 1 of the Development of the Lands: 1. Excavate the sub-base to the satisfaction of Soil-Eng Limited to allow for a minimum depth of 600 mm Granular 'B'. The sub- grade surface shall be smoth, lump fee, crowned at 3%, and subdrains notched. 2. Allow the sub-grade surface to freeze to the satisfaction of Soil-Eng Limited. 3. Place a minimum 600 mm of Granular 'B'. The Granular 'B' must not be frozen, with 4% or less silt content and must be fully compacted to the satisfaction of Soil-Eng Limited before freezing. 4. Place 150 mm of Granular 'A'. The Granular 'A' must not be frozen and must be fully compacted to the satisfaction of soil-Eng Limited before freezing. 5. All snow and ice must be removed from the surface, at all times prior to any stage of road construction. 6. Asphalt to be placed under suitable conditions maintaining asphalt temperature at a minimum of 135 degrees celsius. The application of final 50 mm of Granular 'A' to be placed just prior to paving. The extent of the paving width should be extended between the back of curb to back of curb, wi th provision made for catchbasins. 7. Placing of concrete base curb is not permitted. 8. Limit of road pavement is to be restricted to the frontages of early closing lots. Total road, proposed for completion has been identified as Elford Drive, Hanning Court and Fenwick Avenue. Balance of the roads within Phase I will require separate authorization from this department. 9. Restrictive entrance onto the paved roads will be provided through truck barricades on Concession 3 and Liberty Street. All construction materials to be accessed through the rear of lots provided by the builder. The developer is to assume full res90nsibility to enforce this provision. This restrictive access shall be maintained until notice permitting the removal of the barricades has been issued by the Director of Public Works. 10. The consultant is to ensure positive drainage on the entire site and specifically the roads at all times. 11. Access - as outlined in G.M. Sernas letter of January 15, 1991, to be removed only upon authorization from the Town of Newcastle. 12. The developer shall endeavour to prevent dust from rising as a result of his activities. The developer's contractor shall I . I I , / co? . +...," , , - 2 - spray regularly with water and clean the public roads and accesses to the satisfaction of the Director of Public Works, dampened down dust, and remove mud and debris that would otherwise cause nuisance to the occupants of adjoining property and to the public. The developer's contractor shall clean vehicles and plant before they leave the site to ensure that no earth, dust, mud or debris is deposited by them on roads. The developer's contractor shall ensure that the roads, footways, stream courses and drains within and adjacent to the site are completely fee from earth, dust, mud and debris. He shall employ sufficient labour to clean such roads, footways, stream courses and drains to the satisfaction of the Director of Public Works. With respect to existing roads, the developer shall strictly adhere to the Town of Newcastle 'Road Condition POlicy'. 13. Hydro, bell and cable T.V. crossings shall be co-ordinated with the road building operations. open-cutting of paved road is not permitted. Actual dates for utility installation must be provided to this department. 14. Benkelman Beam Testing. Benkelman Beam Testing shall be carried out in the Spring of 1991 and the spring of 1992. Additional tests are to be carried out as required by the Director of Public Works. 15. certification Soil-Eng Limited shall provide full time on-site superv1s1on and must certify the following stages of the construction in writing: *Excavation to sub-grade *Placement of Granular 'B' *Placement of Granular 'A' *Placement of hot mixed asphalt The developer's consultant will review Soil-Eng Limited's certification, confirm its acceptability in writing and provide the necessary recommendation to the Town. Upon satisactory completion of the certification process, an authorization to proceed to the next stage of construction will be issued in writing by this de~artment. 16. In addition to the above-mentioned procedure, authorization to place surface works (i.e. top asphalt and curbs) must be obtained from this department in writing, prior to proceeding. The Director of Public Work's decision will be based on the structural analysis of the roads in the Spring of 1992. 17. Any repair works must be carried out with this department's written consent and acted on immediately by the developer. 18. The letter of credit will not be reduced until such time as the initial roadworks are deemed acceptable. This will be based on the structural analysis of the roads in the spring of 1992. 19. The Town of Newcastle has apprehensions about proceeding with the winter Road Construction. Eiram Development Corporation acknowledges that it assumes absolute and total responsibility and liability for the works. Furthermore, Eiram Development Corporation acknowledges that Town's riht to order additional . ~ ,. ..". ;f J - 3 - testinq, monitorinq or analysis, to refuse to accept, to order removed and replaced any or all of the roadworks constructed and aqrees to meet all requirements of the Public Works Department, financial or otherwise. 20. It is the responsibility of the developer and/or his consultant to make the contractor aware of the above-mentioned conditions. ff ~~ .. ii- l-"~ ~ ,,"c , _it, F ?er ...1 ... ~ , , '" , ..'4 '. 1 ( DATED:' April , 1991 BETWEEN: THE CORPORATION OF THE TOWN OF NEWCASTLE - and - EIRAM DEVELOPMENT CORPORATION - and. - THE ESTATE OF GEORGE STEPHEN BANK OF CREDIT AND COMMERCE CANADA CANADIAN IMPERIAL BANK OF COMMERCE SUBDIVISION ,AGREEMENT The corporation of the Town of Newcastle Planning Department " .40 TemperMlC::e ~t.reet " Bowmanville, ontario L1C 3K6 . ,..