HomeMy WebLinkAboutLGL-006-13 ClariflgtOR
LEGAL REPORT
LEGAL DEPARTMENT
Meeting: GENERAL PURPOSE AND ADMINISTRATION COMMITTEE
Date: September 9, 2013 Resolution#: -13 By-law#:
-t
Report#: LGL-006-13 File#: L2010-08-11
Subject: UPDATED SUBDIVISION AGREEMENT
RECOMMENDATIONS:
It is respectfully recommended that the General Purpose and Administration Committee
recommend to Council the following:
1. THAT Council authorize Staff to use the updated subdivision agreement attached
to this Report (Attachment 1) as a standard agreement for all future plans of
subdivision;
2. THAT the Municipal Solicitor be authorized to make minor changes to the
standard subdivision agreement as the need arises; and
3. THAT Council approve the fees referenced in sections 4.3, 4.4, 4.6 and 4.8 of the
updated subdivision agreement.
Submitted by: Reviewed by.
,Z 4, /_Z"
Andrew)6. Allison, B. Comm., LL.B. Franklin Wu, MAOM
Municipal Solicitor Chief Administrative Officer
CORPORATION OF THE MUNICIPALITY OF CLARINGTON
40 TEMPERANCE STREET, BOWMANVILLE, ONTARIO L1C 3A6 T 905-623-3379
REPORT NO.: LGL-006-13 PAGE 2
1.0 BACKGROUND
1.1 The Municipality has been using the same form of subdivision agreement since
May 1993. It needs to be simplified and updated.
1.2 The purpose of this report is to obtain Council approval to use the subdivision
agreement attached to this Report (Attachment 1) as a standard agreement for
all future plans of subdivision.
1.3 Staff from Planning Services, Engineering/Building Services, Operations,
Emergency & Fire Services and Finance have been involved in the preparation of
the updated agreement.
2.0 DISCUSSION
2.1 The updated agreement is intended to do the following:
(a) Advance 2011 - 2014 Strategic Plan objectives.
One of the six priorities of the 2011 - 2014 Strategic Plan is "Promoting
Economic Development". Objective #2 under this priority is to "[a]ttract
new businesses and retain existing businesses to improve / increase non-
residential assessment growth and employment opportunities". One of the
actions identified in connection with this objective is to "[u]ndertake a
review of municipal processes and regulations to identify opportunities to
streamline development application approval". Updating and streamlining
the Municipality's standard subdivision agreement is one way to help
achieve this strategic objective. The updated agreement will also help with
the strategic priority of"Maintaining Financial Stability" by increasing some
fees.
(b) Simplify the language and make it more user-friendly for both Staff and
developers.
The updated agreement is written using plain language to make it easier
for all parties to understand. An effort has also been made to be as clear
and concise as possible. Unnecessary clauses and inadvertent
duplication have been removed. The result is a clearer document that is
easier to read and use. Whereas the old subdivision agreement was well
over 100 pages in length, the updated agreement is only 34 pages
(including schedules). This streamlining has been achieved with no loss of
Municipal authority or protection.
In order to more efficiently process subdivision agreements in the future,
the main body of the updated agreement has been structured to be
standard for all plans of subdivision. Anything that is unique or special in
REPORT NO.: LGL-006-13 PAGE 3
terms of a particular plan of subdivision will form part of the schedules for
that particular subdivision agreement.
(c) Clarify processes and timelines.
Over time, the manner in which Staff have administered certain aspects of
the subdivision development process has changed, but the language of
the subdivision agreement has not been updated to reflect those changes.
This has been corrected. In addition, clearer timelines and trigger dates
for each stage of the approval process have been set out in the updated
agreement.
(d) Add new clauses based on local experiences.
Staff have encountered many specific situations that have tested (for lack
of a better word) the language of the agreement. The new agreement has
several small changes that are intended to address specific issues that
have arisen.
(e) Add new clauses based on experiences outside of Clarington.
Staff have reviewed the standard subdivision agreements used in other
municipalities and taken from them any provisions that we think will help
protect and promote Municipal interests through our agreement.
(f) Update legislative, by-law, guideline and policy references.
As a housekeeping matter, all of these references have been updated.
2.2 When Staff met with representatives of the development community in April 2012
and again in August 2012 to discuss possible changes to the subdivision
agreement, we were asked to look at the following specific issues: (a) high snow
clearing costs; (b) pre-servicing opportunities; (c) maintenance period flexibility
with large project phases; (d) an engineering drawing design checklist; and (e)
the wording of the Municipality's standard letter of credit. These points are all
discussed in this Report.
2.3 The updated agreement is not intended to materially change the way things have
been done in the past except as noted in sections 2.4 through 2.15 below.
2.4 Well Interference (section 2.40) — Sections relating to well interference were
added to Clarington's standard subdivision agreement in 1993. They attempted
to put the onus on the developer to monitor neighbouring wells and provide free
water service when it could be proven that the wells were negatively affected by
new development. The problem with any well interference claim was (and still is)
that it is almost impossible to prove whether construction has had, or will have,
short term or long term impacts on existing wells. To resolve this significant
problem, Durham Region decided to implement a Well Interference Policy
REPORT NO.: LGL-006-13 PAGE 4
(adopted by Regional Council on June 30, 1999). The Policy eliminated costly
disputes by simply providing water service to the property without typical frontage
and connection fees - no questions asked. Developers contribute to the costs of
implementing the Policy through their development charges, but they save
money by avoiding the need to monitor wells and hire engineers when disputes
arise. Many residents have taken advantage of the Region's Well Interference
Policy and hired plumbers to make lateral connections to their homes from the
property line.
Despite the new Regional policy, Clarington has not changed any of the clauses
in its standard subdivision agreement relating to well interference. The current
form of subdivision agreement still requires developers to pay for well monitoring
and connection costs on private property if well interference can be proven. This
has the effect of maintaining all of the problems that were purposefully eliminated
by the Region's policy. Although this wording has been in the Municipal
subdivision agreement since 1993, staff have no recollection of any situation in
which it has ever been successfully applied. Well interference claims are simply
forwarded to Durham Region for their expertise and follow up.
Recognizing that the Region (a) has full jurisdiction over wells and water supply;
(b) has the in-house expertise to address well-related issues; (c) has adopted a
comprehensive.well interference policy; and (d) is collecting development
charges to cover the costs of applying and administering that policy, the updated
agreement simply states that the Regional Well Interference Policy will apply to
the construction of any works that may cause interference to, or dewatering of, a
private well. In other words, there is no Municipal involvement. This is the
approach taken by every other local municipality in Durham.
2.5 Maintenance Period For Landscaping (clause 2.49(d)) — Our standard
subdivision agreement used to have a two year maintenance period for surface
works and landscaping. Approximately 15 years ago, this period was reduced to
one year at the request of the development community. While a one year
maintenance period is appropriate for road works, one year is not enough time to
determine whether there may be problems associated with landscaping works.
The updated agreement reinstates the two year maintenance period for
landscaping works.
2.6 Land Use Plan (section 3.09) —This section of the agreement has been updated
to reflect the changes to the New Home Sales Facilities Policy approved by
Council through Report PSD-030-13 dated June 10, 2013.
2.7 Firebreaks (section 3.19) - This section is standard in many municipal
subdivision agreements, but it has not previously been used in Clarington.
2.8 Street Signs (sections 3.20 and 3.21) - These sections were not in the previous
agreement, but they have been a Municipal requirement for many years.
REPORT NO.: LGL-006-13 PAGE 5
2.9 Lot Identification (section 3.22) - This section was added to respond to a
concern of the Emergency & Fire Services Department regarding its ability to
effectively respond to calls in new subdivisions during construction.
2.10 Engineering Review Fees (sections 4.3 and 4.4) - These sections are standard
in many municipal subdivision agreements, but they have not previously been
used in Clarington. A lot of Staff time is spent reviewing, correcting and re-
reviewing engineering drawings, and it is appropriate to have developers
contribute towards the cost of these multiple but necessary reviews. Even after
implementing this additional fee, the Municipality's engineering fees will still be
amongst the lowest in Durham Region.
2.11 Winter Maintenance Costs (section 4.6) — Clarington recovers winter
maintenance costs from developers until subdivisions are completed and all
houses are built and occupied. The Staff time involved in documenting each site
visit, calculating road lengths and typical costs, and then invoicing the developers
can be substantial. In addition, developers have complained that some projects
are slow to be fully completed and therefore invoices from the Municipality can
continue in some cases for five or six years even though the development may
be more than 50% occupied after 2 years. To address both of these issues, the
updated agreement implements a flat rate based on typical costs for a two year
period. This will eliminate administrative costs and will provide cost certainty to
the developers.
2.12 Street Lighting Costs (section 4.8) —A similar process to the winter
maintenance costs will be implemented. This will also eliminate some
administration and provide cost certainty to the developers.
2.13 Letters of Credit (section 5.1) —We no longer insist upon unconditional letters of
credit. Our letters of credit now reference particular agreements, as requested
by developers and their banks. The updated subdivision agreement also makes
it clear that we will accept term deposits/guaranteed investment certificates as
performance security (something that some developers have requested). The
letter of credit issues have therefore been addressed to the satisfaction of the
development community.
2.14 Pre-servicing (section 5.1) — Many municipalities allow developers to undertake
pre-servicing work (e.g. initial grading and underground work within the future
road system) prior to registering a plan of subdivision and executing a
subdivision agreement. Historically, the Municipality has not allowed pre-
servicing.
Developers advised us that they want the ability to pre-service their land for two
reasons. First, they felt that it could help avoid delays in the start up of
construction caused by delays in the preparation of subdivision agreements.
However, they recognized that there would still be delays in the process if two
separate agreements were required for the same phase of development. In fact,
they acknowledged that pre-servicing agreements in some other municipalities
REPORT NO.: LGL-006-13 PAGE 6
are getting so administratively cumbersome that they now take just as long to
process as the main subdivision agreements. Staff and the developers therefore
agreed that it would be better to work on improvements to our standard
subdivision agreement that would reduce the time required to prepare one
agreement.
The developers' second concern was financial, They felt that it was
unnecessarily financially onerous to require security for 100% of initial
subdivision work. In order to undertake subdivision work, it will often be
necessary for the developer to set aside 200% of the cost of that work— 100% to
pay the contractors and 100% to secure the payment. In essence, the traditional
process requires the developers to double up on the financing of all subdivision
agreement work.
Staff recognize that from a practical perspective it is extremely unlikely that any
municipality will ever draw on securities to ensure completion of initial subdivision
work. The updated agreement (section 5.1) therefore only requires security for
15% of the initial work plus 120% of all remaining work. This will require
developers to secure approximately 65% of the cost of all subdivision work. It will
allow developers to commence construction of the subdivision works with
significantly less up front security.
The updated agreement technically does not allow "pre-servicing", but provides
developers with a more time efficient and less financially onerous way to get
construction started. Staff feel that it is progressive approach to the concerns of
the development community,
2.15 Maintenance Period Flexibility (clause 5.3(b)) — Some developers have
complained that even though some surface works have been completed, the
Municipality won't allow partial security reductions until the subdivision is 100%
completed. Staff have been flexible in some situations by allowing a single
interim reduction for surface works even though the current form of agreement
technically doesn't allow it until a Completion Certificate is issued for all surface
works. Clause 5.3(b) of the updated agreement formally gives Staff the
discretion to reduce performance securities where a major portion of the surface
work has been completed. Section 2.56 also gives the Director the discretion to
shift works components around which provides additional flexibility to respond to
this particular developer concern.
2.16 Engineering Services has been working with some of the main consultants who
work in the Municipality to develop an engineering drawing design checklist. It is
expected to be finalized in the fall of this year.
2.17 Staff are of the opinion that the updated subdivision agreement attached to this
Report (Attachment 1) appropriately addresses all of the Municipal objectives
and developer concerns set out in sections 2.1 and 2.2 of this Report, and
REPORT NO.: LGL-006-13 PAGE 7
therefore recommend that it be used as a standard agreement for all future plans
of subdivision.
2.18 Fees for municipal services provided in connection with subdivision agreements
vary greatly amongst municipalities. Some have higher fees in some areas and
lower (or no) fees in other areas. For example, some municipalities require
developers to pay a letter of credit fee, but Clarington has never required this.
Staff feel that the fees included in updated agreement (including the new fees
referenced in sections 4.3, 4.4, 4.6 and 4.8) are fair and reasonable.
3.0 CONCURRENCE
3.1 The Director of Planning Services, Director of Engineering Services, Director of
Operations, Director of Finance and Director of Fire & Emergency Services have
all reviewed this Report and concur with its recommendations.
CONFORMITY WITH STRATEGIC PLAN
The recommendations contained in this Report conform to the general intent of the
following priorities of the Strategic Plan:
x Promoting economic development
x Maintaining financial stability
Connecting Clarington
Promoting green initiatives
Investing in infrastructure
Showcasing our community
Not in conformity with Strategic Plan
Attachment 1 — Updated Subdivision Agreement (September 2013)
ATTACHMENT NO. 1 TO
REPORT LGL-006-13
Page 13
LenrlLrg the SI'ay
SUBDIVISION AGREEMENT
THIS AGREEMENT dated 201_is made
AMONG:
THE CORPORATION OF THE
MUNICIPALITY OF CLARINGTON
-and-
[Insert name of Owner]
-and-
[Insert name of Chargee/Mortgagee]
STANDARD SUBDIVISION AGREEMENT—SEPTEMBER 2013
Standard Subdivision Agreement Page 14
CONTENTS
RECITALS..........................................................................................................................6
PART 1 -INTERPRETATION.............................................................................................. 6
PART 2-ENGINEERING.................................................................................................... 7
General.........................:........................................................................................... 7
Owner's Engineer..................................................................................................... 7
Utilities...................................................................................................................... 8
Tree Preservation Plan............................................................................................. 8
LandscapingPlan.....................................................................................................8
ConstructionSchedule.............................................................................................. 8
CostEstimates.......................................................................................................... 9
Authorization to Commence.....................................................................................9
Construction Supervision........................................................................................ 10
General Construction Requirements...................................................................... 10
Certificates of Completion....................................................................................... 11
Maintenance of Works.....................................................................................I...... 11
ExistingStorm Sewers....................................:....................................................... 12
MaintenancePeriods.............................................................................................. 12
Certificates of Acceptance...................................................................................... 12
Assumption............................................................................................................. 12
WorksComponents................................................................................................ 13
PART 3-PLANNING AND FIRE....................................................................................... 13
Architectural Design Guidelines.............................................................................. 13
Requirements for Building Permits......................................................................... 13
ModelHomes.......................................................................................................... 14
Occupancy Requirements...................................................................................... 14
LandUse Plan........................................................................................................ 14
Noticesand Warnings............................................................................................. 15
TemporaryCrossing,Guards......................:........................................................... 15
SchoolBoard Lands............................................................................................... 15
FireRegulations...................................................................................................... 15
StreetSigns............................................................................................................ 16
LotIdentification...................................................................................................... 16
PART 4- FEES AND CHARGES...................................................................................... 16
OutstandingCharges.............................................................................................. 16
Legal Fees and Disbursements.............................................................................. 17
Engineering Review Fees.........................................................................I............. 17
Engineering Inspection Fee.................................................................................... 17
Winter Maintenance Costs...................................................................................... 17
StreetLighting Costs.............................................................................................. 18
HarmonizedSales Tax........................................................................................... 18
DevelopmentCharges............................................................................................ 18
UnpaidMonies........................................................................................................ 18
PART 5-FINANCIAL SECURITY..................................................................................... 18
Performance Guarantee......................................................................................... 18
Reduction................................................................................................................ 18
Release of Maintenance Holdbacks....................................................................... 19
LotGrading Security............................................................................................... 19
PART6- INSURANCE......................................................................................................20
CoverageRequired.................................................................................................20
Amountof Coverage.................................................................:.............................20
Standard Subdivision Agreement Page (5
Exemption of Coverage Prohibited.........................................................................20
Term .......................................................................................................................21
PART 7-REGISTRATION REQUIREMENTS..................................................................21
Solicitor's Certificate...............................................................................................21
Registration of Agreement......................................................................................21
Registration of R-Plans...........................................................................................21
Transfers of Lands and Easements........................................................................21
Authorityto Update.................................................................................................21
Postponement.........................................................................................................21
Release of Inhibiting Order..................................................................................... 22
Releaseof Agreement............................................................................................22
PART 8-REMEDIES........................................................................................................22
Default....................................................................................................................22
Inspection ...............................................................................................................23
Liens.......................................................................................................................23
Indemnity................................................................................................................23
RemedialAction......................................................................................................24
PART 9-GENERAL..........................................................................................................24
SCHEDULE 1 -DEFINITIONS..........................................................................................26
SCHEDULE 2-PLAN 40M- ..........................................................................29
SCHEDULE 3-STANDARD NOTICES AND WARNINGS.............................................. 30
SCHEDULE 4-SPECIAL NOTICES AND WARNINGS................................................... 31
SCHEDULE 5-LANDS/EASEMENTS TO BE TRANSFERRED.....................................32
SCHEDULE 6-PRELIMINARY WORKS COST ESTIMATE............................................33
SCHEDULE 7-SPECIAL TERMS AND CONDITIONS.................................................... 34
SCHEDULE 8-AGENCY REQUIREMENTS................................................................... 35
SCHEDULE 9-CONDITIONS OF DRAFT PLAN APPROVAL........................................36
Standard Subdivision Agreement Page 16
RECITALS
A. The Owner has received approval of draft Plan of Subdivision S-C-
subject to conditions, including a condition that the Owner enters into this
Agreement.
B. The lands shown on draft Plan of Subdivision S-C- are now
shown on Plan 40M- (the"Lands").
C. The Municipality requires the Charge/Mortgage registered in favour of
(the "Chargee/Mortgagee") as Instrument
No. on be postponed to this Agreement.
D. This Agreement is made pursuant to subsection 51(26) of the Planning Act, R.S.O.
1990,c. P.13.
NOW THEREFORE the parties agree as follows:
PART 1 -INTERPRETATION
1.1 The words and expressions used in this Agreement, including its recitals, have the
meanings set out in Schedule 1.
1.2 This Agreement shall be read with all changes in gender or number as the context
requires.
1.3 In this Agreement, unless otherwise specified,
(a) a grammatical variation of a defined word or expression has a corresponding
meaning;
(b) . references to an Act, by-law, guideline or policy shall include any
amendments to or replacements of such Act, by-law,guideline or policy;
(c) references to Parts, sections, subsections, clauses and Schedules are
references to Parts, sections, subsections, clauses and Schedules in this
Agreement;
(d) references to Lots or Blocks are references to Lots or Blocks on the 40M-
Plan;
(e) references to any approved plan, drawing or other document shall be
deemed to include any approved revisions;
(f) every reference to a decision, determination, consent, approval or request
shall be deemed to be qualified by the words"acting reasonably";
(g) every provision by which the Owner or the Owner's Engineer is required to
act shall be deemed to include the words"at the Owner's cost, including the
payment of any applicable taxes';and
(h) every obligation of the Owner's Engineer shall also be an obligation of the
Owner.
1.4 The following Schedules are attached to and form part of this Agreement:
Schedule 1 Definitions
Schedule 2 Plan 40M-
Schedule 3 Standard Notices and Warnings
Standard Subdivision Agreement Page 17
Schedule 4 Special Notices and Warnings
Schedule 5 Transfers of Lands and Easements
Schedule 6 Preliminary Works Cost Estimate
Schedule 7 Special Terms and Conditions
Schedule 8 Agency Requirements
1.5 Schedule 9 (Conditions of Draft Plan Approval) is attached to this Agreement for
information purposes only.
PART 2-ENGINEERING
General
2.1 The Owner and the Owner's Engineer shall ensure that all Works are designed and
constructed in accordance with Municipal Specifications unless otherwise approved
by the Director.
2.2 The Owner and the Owner's Engineer shall ensure that all licences, permits and
approvals required to construct, repair and'maintain the Works are obtained and
maintained in good standing.
2.3 The Owner and the Owner's Engineer shall comply with all applicable legal
requirements(including statutes, by-laws, orders and rules and regulations of every
governmental.authority having jurisdiction)which relate to the design, construction,
repair and maintenance of the Works including all requirements under the
Occupational Health and Safety Act, R.S.O. 1990, c. 0.1 and the Workplace Safety
and Insurance Act, 1997, S.0. 1997, c.16, Sch.A.
Owner's Engineer
2.4 The Owner's Engineer is authorized to act as the Owner's representative in all
matters pertaining to the design, construction, repair and maintenance of the Works
and shall co-operate with the Director to protect the interests of the Municipality and
the general public in all such matters.
2.5 The Owner's Engineer shall prepare and submit for the Director's approval all
engineering plans, drawings, studies, reports, estimates, calculations and
documentation required by this Agreement including,
(a) the Engineering Drawings, Grading and Drainage Plan and utility composite
plan;
(b) all traffic reports, soils reports, geotechnical reports, stormwater
management reports, stormwater implementation reports and other related
reports;
(c) the Phasing Plan;
(d) the Preliminary Works Cost Estimate and Final Works Cost Estimate;and
(e) all documentation required to support requests to reduce the Performance
Guarantee or the Lot Grading Security.
2.6 If construction of any Works has not commenced within 2 years of the date of
approval of the Engineering Drawings, the approval lapses and the Owner shall
resubmit such Engineering Drawings to the Director for re-approval. For purposes
of this section, clearing or grubbing shall not be considered part of any Works.
Standard Subdivision Agreement Page 18
2.7 The approved Engineering Drawings and any other documents provided to the
Director under section 2.5 may be used and/or reproduced by the Municipality
without cost, and without further approval or permission from either the Owner or
the Owner's Engineer, irrespective of whether the Owner's Engineer's fees and
disbursements in respect of any of them have been paid.
2.8 Approval of any Engineering Drawings shall not absolve or release the Owner or
the Owner's Engineer from liability for any errors or omissions in relation to the
Engineering Drawings or from any other obligation under this Agreement.
2.9 The Director shall not approve Engineering Drawings unless(a)they are consistent
with the Community Theme Plan (if applicable) and the Landscaping Plan; and (b)
any lands or easements required for Works on external lands have been
transferred to the Municipality.
Utilities
2.10 The Owner shall enter into agreements with the authorities having jurisdiction to
ensure the proper design and installation of all utilities required to service the Lands
including water, sanitary sewers, electrical, telecommunications and gas, and
provide copies of all such agreements to the Municipality.
2.11 All utility services shall be installed in locations approved by the Director. Unless
otherwise approved, all utility service lines shall be installed underground.
2.12 The Owner shall arrange with Canada Post for the provision of a mail distribution
system to service the Lands in locations approved by the Director.
Tree Preservation Plan
2.13 The Owner's Engineer shall ensure that all Engineering Drawings conform to the
Tree Preservation Plan, unless the Directors approve otherwise.
2.14 The Owner shall preserve all trees required to be preserved in the Tree
Preservation Plan and otherwise comply in all respects with the Tree Preservation
Plan.
Landscaping Plan
2.15 The Landscaping Plan shall be submitted to the Directors for approval.
2.16 The Owner's Engineer shall ensure that the Landscaping Plan conforms to the
Municipal Specifications and is consistent with the approved Engineering Drawings.
2.17 All landscaping shall be planted in accordance with the approved Landscaping
Plan.
Construction Schedule
2.18 The Owner's Engineer shall submit a Construction Schedule to the Director for
approval.
2.19 The Owner shall not commence placement of base asphalt paving later than
December 1st and shall not commence placement of surface asphalt paving later
than November 15th. The Construction Schedule shall include a scheduling
contingency period of at least 2 weeks to meet these paving deadlines.
2.20 The Owner shall proceed in good faith in a continuous manner to construct all of the
Works referred to in an Authorization to Commence in accordance with the timing
and sequence set out in the Construction Schedule.
Standard Subdivision Agreement Page 19
2.21 Construction of all Works authorized in an Authorization to Commence shall be
commenced within 30 days of the issuance of the authorization and shall be
completed within 1 year of the issuance of the authorization.
2.22 The Owner shall not place top curb or surface asphalt on any road unless the base
course of asphalt has been in place for at least 2 winter/spring seasons. On rural
subdivisions, the Owner shall not place surface asphalt until at least 80% of the
houses have been constructed. Where required by the Director, additional
securities must be provided for potential damage to surface asphalt and
downstream ditch cleaning and repair.
2.23 Unless authorized by the Director, no road works shall be undertaken between
December 1St and May 1st. Where the Director has authorized the construction of
underground servicing between December 1St and May 1st, it shall be undertaken
using effective cold-weather precautions acceptable to the Director and shall be
monitored full time by a geotechnical engineer.
Cost Estimates
2.24 The Owner's Engineer shall submit a Preliminary Works Cost Estimate to the
Director for approval.
2.25 When the Engineering Drawings, Grading and Drainage Plan and Landscaping
Plan have been approved, the Owner's Engineer shall submit a Final Works Cost
Estimate to the Director for approval.
Authorization to Commence
2.26 The Owner shall not commence the construction of any Works prior to the issuance
of an Authorization to Commence.
2.27 An Authorization to Commence shall not be issued for any Works until,
(a) the Municipality has received a letter signed by the Owner's Engineer in
which the Owner's Engineer acknowledges and agrees to be bound by the
requirements of Part 2(Engineering)and Part 8(Remedies);
(b) all plans referred to in clause 2.5(a)have been approved;
(c) the Phasing Plan has been approved(clause 2.5(c));
(d) the Municipality has received confirmation from all utilities regarding the
location of services(unless the Director deems it unnecessary);
(e) the Landscape Plan has been approved (section 2.15);
(f) the Construction Schedule has been approved (section 2.18);
(g) all fees and contributions required to be paid to the Municipality by the
Owner under this Agreement have been paid including engineering fees
(sections 4.3,4.4 and 4.5),winter maintenance fees (section 4.6), and street
lighting electricity costs(section 4.8);
(h) the Performance Guarantee has been provided (section 5.1);
(i) all policies of insurance or proof of insurance have been provided (Part 6);
Q) all required lands and easements have been transferred to the Municipality
(section 7.5);and
Standard Subdivision Agreement Page 110
(k) all other plans, reports, approvals and work described in Schedule 7 or
Schedule 8 and specified to be pre-conditions to the issuance of an
Authorization to Commence have been provided, obtained or undertaken.
2.28 Prior to the Owner retaining a new Owner's Engineer, the Owner shall provide the
Director with a letter described in clause 2.27(a)from the new Owner's Engineer.
2.29 An Authorization to Commence may be issued for portions of the Surface Works,
but a Certificate of Completion can only be issued for all of the Surface Works.
Construction Supervision
2.30 The Owner's Engineer shall provide fully qualified, experienced supervisory layout
and inspection field staff to provide quality assurance of the construction of all
Works. Without limiting the generality of the foregoing,the Owner's Engineer shall,
(a) continuously monitor and supervise the construction of all components of the
Works to verify conformity to the approved Engineering Drawings, Municipal
Specifications and all other requirements of this Agreement;
(b) carry out or verify all field layout including the provision of line and grade;
(c) investigate and immediately stop and/or reject any Works, procedure or
material that does not comply with this Agreement and immediately notify the
Director;
(d) investigate and immediately report to the Director any unusual
circumstances, potential problems or conflicts;
(e) maintain and provide copies to the Director upon request all records, data,
tests, reports, photos, approvals and orders pertaining to the Works
including all information on contract, sub-contracts, suppliers, service
providers, payment certificates, payment records, certificates of substantial
performance,and proof of publication where required;
(f) obtain all necessary field information to verify the acceptability of the Works
and to prepare accurate as-constructed drawings; and
(g) arrange for and supervise storm sewer cleaning and video inspections
acceptable to the Director of all storm sewers, catch basin leads and,where
requested, house lateral services, prior to the issuance of a Certificate of
Completion and again prior to the issuance of a Certificate of Acceptance.
2.31 The Owner's Engineer shall arrange for and monitor all required qualitative and
quantitative testing of equipment, materials and procedures to confirm compliance
with specifications.
2.32 The Owner's Engineer and, where applicable, a geotechnical engineer and/or
structural engineer, shall issue certificates in a form acceptable to the Director
confirming that a particular portion of the Works has been constructed in
accordance with specifications.
2.33 The Director may retain, at the Owner's cost, an alternate geotechnical engineer
and/or structural engineer to carry out independent qualitative or quantitative tests
and prepare certificates on behalf of the Municipality.
General Construction Requirements
2.34 All Works shall be constructed in accordance with approved Engineering Drawings.
2.35 No deviation from the approved Engineering Drawings shall be permitted unless
such deviation is authorized by the Director before it is undertaken.
Standard Subdivision Agreement Page ill
2.36 If in the Director's opinion any additional work is required to provide for the
adequate operation, functioning or maintenance of any Works, the Owner shall
construct such additional facilities and perform such additional work as the Director
may require by notice given to the Owner.
2.37 The Owner shall obtain permission from the Director prior to carrying out any
blasting. .
2.38 (1) In this section, "Fill" has the meaning given to it in the Municipality's Site
Alteration By-law No.2008-114.
(2) The Owner shall not import or export any Fill to or from the Lands unless a
permit has been issued for such Fill under the Municipality's Site Alteration By-law
No.2008-114.
2.39 The Owner shall continually monitor all building construction activity and remove all
construction debris and improperly stored building materials.
2.40 The Regional Well Interference Policy adopted by Regional Council on June 30,
1999 shall apply to the construction of any Works that may cause interference to or
dewatering of a private well in the urban and/or rural areas.
Certificates of Completion
2.41 The construction of any Works Component shall not be deemed to be complete
until the Director has issued a Certificate of Completion.
2.42 A Certificate of Completion shall not be issued until,
(a) the Owner's Engineer has made a written request for the certificate;
(b) the Owner's Engineer has provided written confirmation that the Works
covered by the certificate have been constructed in accordance with the
approved Engineering Drawings and Municipal Specifications;and
(c) the Works covered by the certificate have been inspected by the Director,
including any required tests or assessments, and the Director is satisfied
that they have been completed as required by this Agreement.
2.43 The issuance of a Certificate of Completion for the Stormwater Management Works
must coincide with the issuance of a Certificate of Completion for the Surface
Works.
2.44 The issuance of a Certificate of Completion shall not absolve or release the Owner
or the Owner's Engineer from liability for any errors or omissions in relation to the
Works described in the certificate.
Maintenance of Works
2.45 The Owner shall be fully responsible for the construction, repair and maintenance of
all Works from the date that an Authorization to Commence is issued until a
Certificate of Acceptance is issued for the Works.
2.46 The Owner shall monitor and maintain every road and sidewalk within the 40M-Plan
and any existing public highway used to provide access to the Lands that may be
adversely impacted by construction activity on the Lands in a well drained, dust and
mud free condition, suitable for ordinary vehicular traffic and otherwise in
accordance with the Road Condition Policy approved by Council in March, 1989
and revised in April,2003.
Standard Subdivision Agreement Page 112
2.47 The Owner shall erect and maintain signs satisfactory to the Directors at all
entrances to the Lands indicating that the roads are unassumed roads that the
Municipality is not required by law to repair or maintain.
Existing Storm Sewers
2.48 (1) In this section, "External Sewer" means any storm sewer not on the Lands
that may be adversely impacted by construction activity on the Lands.
(2) The Owner shall take all steps necessary to ensure that all External Sewers
are kept free of silt,mud and other debris generated through construction activity on
the Lands.
(3) If an External Sewer has been damaged or has not been kept free of debris
as a result of the construction activity on the Lands, the Owner shall take all steps
necessary to restore the External Sewer to its previous condition after receiving
notice from the Director.
Maintenance Periods
2.49 The minimum maintenance period applicable to each Works Component
commences upon the issuance of a Certificate of Completion and ends as follows:
(a) Base Works—2 years.
(b) Street Lighting Works—2 years.
(c) Surface Works—1 year.
(d) Landscaping Works—2 years.
(e) Stormwater Management Works—2 years.
2.50 Notwithstanding clause 2.49(a), the minimum maintenance period for the Base
Works shall not end until a Certificate of Completion is issued for the Surface
Works.
Certificates of Acceptance
2.51 Following the conclusion of the applicable maintenance period, the Director may
issue a Certificate of Acceptance of any Works Component provided,
(a) the Owner's Engineer has made a written request for the certificate;
(b) the Owner's Engineer has provided written confirmation that the Works
covered by the certificate have been maintained in accordance with the
approved Engineering Drawings and Municipal Specifications;
(c) the Director is of the opinion that the Works have been maintained as
required by this Agreement;
(d) the Director has received as-constructed drawings in a form acceptable to
the Director as well as the electronic files;and
(e) for Surface Works, a registered Ontario Land Surveyor retained by the
Owner has provided the Municipality with written confirmation that all
standard iron bars shown on the 40M-Plan and all survey monuments at all
block corners, the end of all curves, other than corner roundings, and all
points of change in direction on roads are in place.
Assumption
2.52 Following the issuance of a Certificate of Acceptance for the Surface Works and the
Landscaping Works, the Director shall recommend to Council that all roads be.
assumed.
Standard Subdivision Agreement Page 113
Works Components
2.53 Notwithstanding the definitions of Base Works, Landscaping Works, Stormwater
Management Works, Street Lighting Works and Surface Works in Schedule 1, if the
Director and the Owner agree, individual work items may be transferred from one
Works Component to another Works Component, and all Authorizations to
Commence, Certificates of Completion, Certificates of Acceptance . and
Performance Guarantee reductions shall be based on the revised description of the
Works Components.
PART 3-PLANNING AND FIRE
Architectural Design Guidelines
3.1 (1) In this section, "Control Architect" means an architect approved by the
Municipality to provide advice on architectural designs and design themes
for plans of subdivision.
(2) No residential unit shall be offered for sale until the architectural design of
the unit has been approved by the Director of Planning Services.
(3) All dwellings erected on the Lands shall comply with the Municipality's
Architectural Design Guideline approved by Council Resolution #C-121-11
on March 7, 2011 or, if applicable, any architectural design guidelines
specific to the Lands. Compliance shall be determined by the Director of
Planning Services.
(4) All architectural control services provided by the Control Architect shall be at
the expense of the Owner.
(5) Only model working drawings bearing the stamp of the Control Architect
shall be eligible for submission to the Municipality for building permits.
Requirements for Building Permits
3.2 The Owner shall not make an application for a building permit for any building on
the Lands until,
(a) a Certificate of Completion has been issued for the Base Works (unless
otherwise approved by the Director);
(b) all services and utilities that are required to service the building have been
constructed to the satisfaction of the authority having jurisdiction;
(c) all necessary fire access routes have been constructed to the satisfaction of
the Director of Emergency and Fire Services;
(d) if the building will be on a Lot or Block that is unsuitable for building
purposes, the Owner has satisfied the conditions with respect to the
development of such Lot or Block;
(e) the Owner has received confirmation from the Director of Planning Services
that the design of the building complies with the Architectural Design
Guidelines;
(f) the Director has approved an individual Lot or Block grading plan;
(g) Owner has deposited the Lot Grading Security for all Lots;
(h) the Municipality has received confirmation from all utilities that agreements
have been entered into with the Owner(section 2.10);
Standard Subdivision Agreement Page 114
(i) if applicable, an acoustic engineer has certified that the plans for the building
are in accordance with the noise impact study;and
(j) all other matters specified in Schedule 7 or Schedule 8 to be pre-conditions
to an application for a building permit have been satisfied.
Model Homes
3.3 Notwithstanding section 3.2, the Owner may apply for conditional building permits
for model homes provided,
(a) the applicable zoning by-law permits the model home;
(b) 10% of the total number of Lots or 10 Lots(whichever is less) may be used
as model homes;
(c) all roads have a base course of asphalt satisfactory to the Director;and
(d) the requirements of clauses 3.2 (d), (e)and (f)have been met.
3.4 Where the requirement of clause 3.3(c) cannot be met, the Owner shall obtain the
approval of the Directors for the proposed alternate access to the model home
(which cannot be via an unpaved road).
3.5 Model homes shall be used for sales display purposes only.
3.6 If the Owner constructs a model home prior to the day on which watermains and
fire hydrants are fully serviced and operational, the construction and use of the
model home is entirely at the risk of the Owner.
Occupancy Requirements
3.7 The Owner shall not apply for an occupancy permit under the Ontario,Building
Code for any building on the Lands until the Street Lighting Works has been
installed and energized.
3.8 The Owner shall not apply for an occupancy permit for a model home until all of the
requirements of section 3.2 have been met.
Land Use Plan
3.9 (1) In this section, "Land Use Plan" means a plan prepared by the Owner in the
Municipality's standard form that has been approved by the Director of
Planning Services showing,
(a) approved Lots;
(b) existing and future roads and interchanges;
(c) existing and future high-tension hydro transmission towers/corridors;
(d) existing and future sidewalks/bicycle paths and trails
(e) existing or future large scale solar or industrial wind turbine
installations;
(f) railway lines;
(g) existing and future transit routes;
(h) community mail boxes;
(i) storm water management ponds,blocks and related facilities;
(j) adjacent land uses;
(k) existing and future schools;
(1) existing and future commercial areas;
(m) existing and future parks;
(n) existing and future areas of different residential densities;
(o) fencing (i.e.noise attenuation,chain link,wooden); and
(p) contact information for all relevant agencies.
Standard Subdivision Agreement Page 115
(2) The Owner shall erect and maintain the Land Use Plan in all sales trailers,
pavilions, model homes, presentation centres, offices or other structures
used to sell new homes within the 40M-Plan.
(3) Any marketing material used to help sell any Lots shall include the Land Use
Plan.
Notices and Warnings
3.10 The Owner shall include in agreements of purchase and sale for all Lots the
applicable Clarington Official Plan map which shows the long term approved land
uses within 500 metres of the 40M-Plan.
3.11 The Owner shall include a clause in agreements of purchase and sale for all Lots
informing the purchaser of all applicable development charges in accordance with
subsection 59(4)of the Development Charges Act, 1997, S.O. 1997, c.27.
3.12 The Owner shall ensure that the notices and warnings set out in Schedule 3 are
included in agreements of purchase and sale for all Lots or Blocks.
3.13 The Owner shall ensure that the notices and warnings set out in Schedule 4 are
included in agreements of purchase and sale for the Lots or Blocks to which they
apply.
3.14 The Owner shall provide the Municipality with a copy of the form of agreement of
purchase and sale to be used for all Lots.
Temporary Crossing Guards
3.15 Where the Director of Planning Services determines that an adult crossing guard is
temporarily required due to safety concerns relating to construction activity, the
Owner shall reimburse the Municipality for the cost of providing such service.
School Board Lands
3.16 If applicable, the Owner shall notify the Municipality if any school board that has an
option to acquire any Lots or Blocks does not exercise its option. The Owner grants
to the Municipality an irrevocable option to acquire such Lots or Blocks on the same
terms and conditions as were available to the school board (including the
consideration to be paid to the Owner) other than the date prior to which the option
has to be exercised. The Municipality shall have 90 days from the date that it is
notified by the Owner that the school board did not exercise its option to exercise
the Municipal option hereby granted by giving notice to the Owner.
Fire Regulations
3.17 The Owner shall store all combustible waste in accordance with the Ontario Fire
Code.
3.18 The Owner shall not permit any open air burning on the Lands without approval
from the Director of Emergency and Fire Services.
3.19 (1) In order to reduce the potential of large loss fires, no more than,
(a) six buildings,where each building contains one dwelling unit;
(b) three buildings, where each building contains more than one, but not
more than four dwelling units;or
(c) one building, where each building contains more than four dwelling
units,
Standard Subdivision Agreement Page 116
shall be constructed adjacent to each other, at the same time, without providing for
a firebreak Lot or Block.
(2) For purposes of this section, the construction of an accessory dwelling unit
or accessory structure such as a detached garage or garden suite shall be
considered part of the main building or dwelling unit.
(3) No combustible framing above the ground subfloor level shall proceed on
the designated firebreak until the exterior finish cladding or interior gypsum wall
finishing and the final installation of roofing, fascia-boards, soffits, doors and
windows of the immediately adjoining buildings have been completed.
(4) Construction shall be permitted on a firebreak Lot or Block up to and
including the ground floor subfloor level at the same time as construction proceeds
on adjacent Lots or Blocks.
(6) Temporary installation of plywood in door and window openings is not
acceptable as a means of complying with subsection(3).
(7) Minimum firebreak size between buildings(on all sides)shall be 8 metres.
(8) When variations of building types are adjacent to each other, the most
restrictive firebreak requirement shall apply.
Street Signs
3.20 The Owner shall erect temporary street signs fastened securely to a post 2 metres
above ground level at all road intersections in the 40M-Plan prior to the
commencement of construction of any building or structure, and maintain such
temporary street signs until permanent signs are erected.
3.21 The Owner shall erect permanent street signs when all grading of roads and
boulevards has been completed to the satisfaction of the Director and maintain
such street signs until Certificates of Acceptance have been issued for the Surface
Works and the Landscape Works.
Lot Identification
3.22 The Owner shall place a sign on every Lot in respect of which a building permit has
been issued that clearly and prominently (at least 150 mm in height) identifies the
Lot according its number on the 40M-Plan and its municipal address.
PART 4-FEES AND CHARGES
Outstanding Charges
4.1 The Owner shall,
(a) pay all municipal taxes outstanding against the Lands;
(b) commute and pay all local improvement charges imposed against the
Lands;and
(c) commute and pay all other charges assessed against the Lands including
charges under the Drainage Act, R.S.0.1990, c. D.17, Tile Drainage Act,
R.S.O. 1990,c.T.8, Ontario Water Resources Act, R.S.O. 1990,c. 0.40 and
Municipal Act, 2009. S.O. 2001, c.25.
Standard Subdivision Agreement Page 117
Legal Fees and Disbursements
4.2 The Owner shall pay all legal fees and disbursements associated with preparation
and registration of this Agreement, the transfers set out in Schedule 5 and all
related documents in accordance with the Municipality's fees by-law(2011-118).
Engineering Review Fees
4.3 The Owner shall pay to the Municipality an engineering review fee of 1.25% of the
Final Works Cost Estimate or$2,000,whichever is greater.
4.4 After the Engineering Drawings have been submitted three times, there shall be an
additional engineering review fee of$1,000 per subsequent submission.
Engineering Inspection Fee
4.5 (1) For the purposes of this section, "Estimated Cost of Services" means the
Final Works Cost Estimate and the estimated cost of Regional services.
(2) The Owner shall pay to the Municipality an engineering inspection fee
calculated as follows:
Estimated Cost of Services Inspection Fee
Less than$500,000.00 $8,000.00 or 3.5% of the
Estimated Cost of Services,
whichever is greater
$500,000.00 to$1,000,000.00 $17,500.00 or 3.0% of the
Estimated Cost of Services,
whichever is greater
$1,000,000.00 to$2,000,000.00 $30,000.00 or 2.5% 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 or greater $67,500.00 or 2.0% of the
Estimated Cost of Services,
whichever is greater
Winter Maintenance Costs
4.6 Notwithstanding sections 2.45 and 2.46, the Municipality shall provide, on the
Owner's behalf,winter maintenance services (snow ploughing, sanding, salting and
spring clean-up)on all roads for a period of 2 years from the date of first occupancy
of any building. The Owner shall pay the Municipality the flat rate set out in section
1 of Schedule 7 (which is based on an annual cost of$5,600.00 per kilometre) to
cover the Municipality's costs of providing such service. After the 2 year period has
expired, winter maintenance services and costs shall be the responsibility of the
Municipality.
4.7 Notwithstanding section 4.6, the Owner shall be responsible for any extraordinary
winter maintenance costs or repair costs (including vehicle and equipment repair)
incurred as a result of improper or deficient construction of the roads or material or
debris on the road.
Standard Subdivision Agreement Page 118
Street Lighting Costs
4.8 The Municipality shall pay all electricity costs for the Street Lighting Works after a
Certificate of Completion has been issued for such Works. The Owner shall pay
the Municipality the lump sum set out in section 2 of Schedule 7 which represents a
2 year estimate of such costs. Payment of such costs shall not relieve the Owner of
the responsibility to repair and maintain the Street Lighting Works.
Harmonized Sales Tax
4.9 The Owner shall pay all applicable Harmonized Sales Taxes on the fees payable
under sections 4.2,4.3,4.4,4.5,4.6 and 4.8.
Development Charges
4.10 The Owner shall pay the Municipal development charge for each unit at the rate in
effect under the Municipality's Development Charge By-law No. 2010-058 when the
payment is made at the timing of building permit issuance.
4.11 The Owner acknowledges that all charges, payments,Works and other obligations
of the Owner in this Agreement are characterized as,
(a) local services constructed at the expense of the Owner related to or within
the 40M-Plan as a condition of approval under section 51 of the Planning
Act, R.S.O. 1990, c. P.13; or
(b) services for which the Owner is making no claim for development charge
credits or seeking any other type of recovery unless the Owner is a party to a
cost-sharing agreement or front-ending agreement with the Municipality
which requires benefitting land owners to reimburse the Owner for a portion
of such costs.
Unpaid Monies
4.12 The due date of any money payable under this Agreement to the Municipality shall
be 30.days after the date that the invoice is given to the Owner. Interest shall be
calculated and paid by the Owner on all late payments at the rate of 1% per month
as approved by Council through Report TR-86-97.
PART 5-FINANCIAL SECURITY
Performance Guarantee
5.1 The Owner shall deposit a Performance Guarantee with the Municipality in order to
guarantee the performance of all of the Owner's obligations under this Agreement.
5.2 The Municipality may appropriate any portion of the Performance Guarantee to
remedy any Default.
Reduction
5.3 The Performance Guarantee may be reduced provided,
(a) the Owner's Engineer has made a written request for the reduction which
includes all pertinent payment information;
(b) a Certificate of Completion has been issued for the Works Component in
respect of which the reduction is sought (unless otherwise approved by the
Director);
(c) the Owner is not in Default; and
Standard Subdivision Agreement Page 119
(d) the Owner has filed a statutory declaration stating that,
(i) all services and materials with respect to the construction and
maintenance of the Works for which the reduction is sought have
been supplied and no amounts are owing to any person in relation to
such materials or services;
(ii) no person has given notice of a claim for lien under the Construction
Lien Act, R.S.O. 1990, c.30 against the Lands or any part thereof,
and no person is entitled to make such a claim;
(iii) there are no judgments or executions filed against the Owner;
(iv) nothing is owed by the Owner or claimed against it for
unemployment insurance deductions, income tax deductions, or
premiums under the Workplace Safety and Insurance Act, 1997,
S.O. 1997, c. 16, Sch.A;
(v) the Owner has not made any assignment for the benefit of creditors,
no receiving order has been made against it under the Bankruptcy
and Insolvency Act, R.S.C. 1985, c. B-3 and no petition for such an
order been served upon the Owner; and
(vi) 45 days have passed since the completion of the Works for which
the reduction is sought.
5.4 (1) The Performance Guarantee may be reduced to an amount equal to the
sum of,
(a) 15% of the value of the completed Works Component (based on the
Final Works Cost Estimate);and
(b) 120% of the value of all uncompleted Works (based on the Final
Works Cost Estimate).
(2) If the Director estimates that the cost of uncompleted Works is significantly
greater than the Final Works Cost Estimate for such Works or if additional
work or remedial work (including storm sewer cleaning) is noted by the
Director, the amount referred to in clause (1)(b) shall be increased
accordingly.
Release of Maintenance Holdbacks
5.5 Following the issuance of a Certificate of Acceptance, the portion of the
Performance Guarantee held as security for the Works covered by the certificate
shall be released.
Lot Grading Security
5.6 All Lots in urban areas shall be sodded and all Lots in rural areas shall be sodded
or seeded,as required by the Director,within 1 year of occupancy.
5.7 After sodding and within 1 year of occupancy, the Owner's Engineer shall certify to
the Director that the final grade of a Lot or Block for which a building permit was
issued conforms to the approved individual Lot or Block grading plan.
5.8 In order to secure the obligations under sections 5.6 and 5.7, the Owner shall
deposit with the Municipality cash or a Letter of Credit in the amount set out in
section 3 of Schedule 7 which is based on the following scale:
Level 1: 10 or fewer units $ 15,000.00
Level 2: 11 to 50 units $ 30,000.00
Standard Subdivision Agreement Page 120
Level 3: 51 to 100 units $ 45,000.00
Level 4: 101 to 250 units $ 60,000.00
Level 5: 251 to 500 units $ 90,000.00
Level 6: 500 or more units $150,000.00
5.9 The Lot Grading Security may be reduced to a lower level of security once the
Owner's Engineer has provided to the Directors a sufficient number of certified Lot
grading certificates to justify the reduction.
PART 6-INSURANCE
Coverage Required
6.1 The Owner shall obtain and maintain insurance of the character commonly referred
to as public liability and property damage with an insurance company approved by
the Municipality's Director of Finance and licensed in Ontario to underwrite such
insurance. Such insurance shall contain terms and conditions acceptable to the
Municipality's Director of Finance and shall indemnify the Municipality against all
damage or claims for,
(a) any loss or damage that may happen to any of the Works;
(b) any loss or damage that may happen to any of the materials or any of the
equipment or any other things used to construct any of the Works or any of
the utilities;
(c) any injury to any person including workers employed on the Lands and the
public;
(d) any loss or damage that shall or may result from the storage, use or handling
of explosives;
(e) any loss or damage that shall or may result from the drainage of surface
waters on or from the Lands;
(f) any loss or damage that may result from the disposal of effluent from any
sewage disposal works; and
(g) any loss or damage that may happen to any public road or to any property of
the Municipality or to the property of any other person either directly or
indirectly by reason of the Owner undertaking the development of the Lands.
Amount of Coverage
6.2 All policies of insurance shall be issued jointly in the names of the Owner and the
Municipality and shall provide minimum liability coverage of $5,000,000.00 for all
damage arising out of one accident or occurrence or series of accidents or
occurrences.
6.3 The issuance of any policy of insurance or the acceptance of it by the Municipality
shall not relieve the Owner from responsibility for other or larger claims for which it
may be held responsible.
Exemption of Coverage Prohibited
6.4 No policy of insurance shall contain coverage exemptions or limitations for any,
(a) shoring, underpinning, raising or demolition of any building or structure;
(b) pile driving or caisson work;
(c) collapse or subsidence of any building,structure or land from any cause; or
Standard Subdivision Agreement Page 121
(d) storage, handling or use of explosives in cases in which the Owner is
required to obtain the Director's permission to carry out a blasting operation.
Term
6.5 The term of all required insurance shall commence no later than the day on which
the first Authorization to Commence is issued and shall terminate when Certificates
of Acceptance have been issued for all Works.
6.6 All policies of insurance shall contain a clause providing for automatic term
renewals.
PART 7-REGISTRATION REQUIREMENTS
Solicitor's Certificate
7.1 The Owner shall provide to the Municipality a solicitor's certificate in a form
acceptable to the Municipal Solicitor certifying,
(a) ownership of the Lands and all encumbrances against the Lands;and
(b) ownership of any land outside the limits of the 40M-Plan and all
encumbrances against such land if it is to be conveyed to the Municipality or
if an easement through it is to be transferred to the Municipality.
Registration of Agreement
7.2 The Owner consents to the registration of an Inhibiting Order and notice of this
Agreement against title to the Lands.
7.3 The Municipality may enforce the provisions of this Agreement against the Owner
and, subject to the provisions of the Registry Act, R.S.O. 1990, c. R.20 and the
Land Titles Act, R.S.O. 1990, c. L.5, against all subsequent owners of the Lands.
Registration of R-Plans
7.4 Following the registration of the 40M-Plan and the Inhibiting Order, the Owner shall
cause to be registered all draft reference plans referred to in Schedule 5.
Transfers of Lands and Easements
7.5 (1) The Owner shall transfer to the Municipality all of the lands and easements
described in Schedule 5 free and clear of encumbrances and restrictions.
All such transfers shall be made for a nominal consideration and shall
contain provisions satisfactory to the Municipal Solicitor.
(2) If, subsequent to the date of this Agreement, further lands or easements
through a particular Lot or Block are required for Municipal purposes related
to the development of the Lands, the Owner shall transfer such lands or
easements to the Municipality after notice to do so is given to the Owner by
the Director and subsection(1)shall apply to any such transfer.
Authority to Update
7.6 The Owner authorizes the Municipality to complete registration particulars of any
instruments referred to in this Agreement as required.
Postponement
7.7 (1) In this section, "Charge/Mortgage" and "Chargee/Mortgagee" mean the
Charge/Mortgage and Chargee/Mortgagee referred to in recital C.
Standard Subdivision Agreement Page 122
(2) The Chargee/Mortgagee hereby postpones the Charge/Mortgage to this
Agreement with the intent that this Agreement shall take effect as though
dated, executed and registered prior to the Charge/Mortgage.
Release of Inhibiting Order
7.8 The Municipality shall not release the Inhibiting Order until all of the transfers
described in Schedule 5 and all partial discharges or postponements relating to
such transfers(as described in the Inhibiting Order) have been registered.
Release of Agreement
7.9 The Municipality shall prepare and register partial releases of this Agreement on a
lot by lot basis provided Certificates of Acceptance have been issued for all Works,
Council has assumed all of the roads and the person requesting the partial release
pays all registration costs.
PART 8-REMEDIES
Default
8.1 The Owner shall be in default if,in the opinion of the Director,
(a) the Owner is not constructing any Works so that they will be completed
within the time specified in the Construction Schedule;
(b) completion of the Surface Works is being unduly delayed;
(c) the Works are being or have been improperly constructed;
(d) the Owner neglects or refuses to complete, remove or repair any Works that
have been rejected by the Director as being defective, deficient or
unsuitable; or
(e) the Owner is otherwise in default of any obligation under this Agreement.
8.2 (1) If the Owner is in Default and such Default has continued for a period of 10
business days(or such longer period of time as may be required in the
circumstances to cure the Default)after receipt of notice from the Director
setting out the particulars of the Default,the Municipality may,
(a) give the Owner an order to stop construction of any Works;and/or
(b) enter upon the Lands and remedy the Default at the Owner's
expense, and draw upon the Performance Guarantee to purchase
such services and materials as in the opinion of the Director are
required for such purpose.
(2) Notwithstanding subsection (1), notice of Default under section 2.39 (site
condition) and section 2.46 (road and sidewalk maintenance) shall be 1
business day.
(3) Notwithstanding subsection (1), the Director shall not be required to give
notice of Default under section 2.23 (winter construction). If there is Default
under section 2.23, the Director may immediately issue a stop work order
and direct that all trenches be immediately backfilled, and construction shall
not recommence prior to May 1St, at which time any remedial work or tests
deemed necessary by the Director shall undertaken.
(4) Notwithstanding subsection (1), the Director shall not be required to give
notice of Default under section 2.30 (construction supervision). If there is
Standard Subdivision Agreement Page 123
Default under section 2.30, the Director may immediately retain an
independent field inspector to carry out the supervisory duties described in
section 2.30 on behalf of the Municipality at the Owner's expense.
(5) Notwithstanding subsection (1), in cases of emergency or urgency, the
Municipality may enter onto the Lands without notice and perform, at the
Owner's expense,such work as the Director deems necessary to protect the
integrity of existing Municipal infrastructure or to protect the integrity and
functionality of the Works.
(6) The cost of any remedial work undertaken by the Municipality under this
section shall include an administration fee of 30%of the contractor's charges
to the Municipality(including any charges for overhead and profit)or, if such
work is undertaken by the Municipality, 30% of all costs incurred by the
Municipality to remedy the Default.
8.3 Every contract made by the Owner with a contractor or homebuilder to construct
any Works shall require the contractor or homebuilder to comply with all of the
provisions of this Agreement, including the requirement to stop work when ordered
by the Director.
8.4 Construction of any Works described in a stop work order may only recommence
after the Director has provided authorization to recommence.
Inspection
8.5 The Municipality shall be permitted unrestricted access to the Lands at all times in
order to inspect any Works. The Owner and Owner's Engineer shall cooperate fully
with the Municipality in any inspection.
Liens
8.6 (1) If a claim for a lien in respect of any Works is filed with the Municipality or the
Municipality receives written notice of a claim of an alleged beneficiary of a
statutory trust under the Construction Lien Act, R.S.O. 1990,c.C.30 and the
Owner fails to discharge the lien or the claim as the case may be within 10
business days after receipt of notice from the Municipality,then the
Municipality may,
(a) pay the full amount of the claim and security for costs into a court of
competent jurisdiction in order to obtain an order vacating such claim
for lien;
(b) discharge the claim in full by paying the amount claimed; or
(c) draw the full amount of the claim from the Performance Guarantee
and hold the cash in a deposit account of the Municipality as the
security payment of the claim.
(2) The Owner shall indemnify the Municipality against the costs incurred by the
Municipality in making any payment pursuant to subsection (1) including the
Municipality's reasonable legal costs.
Indemnity
8.7 The Owner shall indemnify and save the Municipality harmless from and against all
actions,claims, liabilities, losses,damages and expenses(including Municipality's
reasonable legal costs)which are caused in whole or in part by the Owner's
negligence or improper work completed by the Owner until all Works have been
accepted, save and except for any actions,claims, liabilities, losses, damages and
expenses resulting from the Municipality's negligence or the negligence of those for
whom the Municipality is responsible in law.
Standard Subdivision Agreement Page 124
Remedial Action
8.8 The Owner acknowledges that the Municipality, in addition to any other remedy it
may have at law, shall also be entitled to enforce this Agreement in accordance
with section 446 of the Municipal Act, 2001, S.O.2001, c.25.
PART 9-GENERAL
9.1 The Works may be used by the Municipality and the public for any of the purposes
for which they are designed, without interference by the Owner, and without the
payment of any compensation to the Owner.
9.2 The Owner shall not assign this Agreement without the Municipality's consent.
9.3 No amendment to this Agreement shall be effective unless made in writing and
signed by all parties.
9.4 If any provision of this Agreement is held by a court to be invalid, illegal or
unenforceable,the remaining provisions shall not be affected.
9.5 This Agreement shall be governed by and construed in accordance with the laws in
force in the Province of Ontario.
9.6 Time shall be of the essence of this Agreement unless the Director authorizes
otherwise.
9.7 This Agreement shall enure to the benefit of and shall bind the parties and their
respective successors and permitted assigns.
9.8 Any notice that is required to be or may be given under this Agreement shall be in
writing and shall be sent by e-mail or delivered:
To the Owner:
Attention:
Email:
To the Municipality: Municipality of Clarington
40 Temperance Street
Bowmanville, ON L1C 3A6
Attention: Director of Engineering Services
Email:enaineerinc0a.clarin tot n.net
and
Attention: Director of Planning Services
Email:planningAclarington.net
or such other e-mail address or postal address of which either party has notified the
other. Any such notice shall be effective from the date that it is so emailed or
delivered.
Standard Subdivision Agreement Page 125
IN WITNESS WHEREOF the parties have signed this Agreement.
THE CORPORATION OF THE
MUNICIPALITY OF CLARINGTON
David Crome, Director of Planning Services
Patti L. Barrie, Municipal Clerk
We have authority to bind the Corporation
[Insert name of Owner]
Per:
Per:
I/We have authority to bind the Corporation
[Insert name of Mortgagee/Chargee]
Per:
Per:
I/We have authority to bind the Corporation
Standard Subdivision Agreement Page 126
SCHEDULE 1 -DEFINITIONS
"40M-Plan"means the Plan 40M-
"Architectural Design Guidelines" means the architectural control design guidelines
described in subsection 3.1(2).
"assumed" means assumed by the Municipality for public use and maintenance purposes
through the passage of a by-law by Council under subsection 31(4) of the Municipal Act,
2009, S.O.2001, c.25.
"Authorization to Commence" means a certificate issued by the Director to formally
authorize commencement of any Works.
"Base Works" means the Storm Sewer Works, initial works within the road system
including sub-grade, sub-base and base granular materials, sub-drains, base curbs, base
asphalt,traffic control and temporary street name signs, installation and removal of turning
circles, and noise attenuation fencing.
"Certificate of Acceptance" means a certificate issued by the Director to formally accept
a Works Component.
"Certificate of Completion" means a certificate issued by the Director to formally
acknowledge that the construction of a Works Component has been completed.
"construct"includes install.
"Construction Schedule" means a.schedule which sets out the time at which, and the
sequence in which, the Owner proposes to construct the Works Components other than
the Surface Works.
"Council" means the Council of the Municipality.
"Default"means default as described in section 8.1.
"Director"means the Municipality's Director of Engineering Services or a designate.
"Directors"means the Director and the Director of Planning Services.
"Director of Emergency and Fire Services" means the Municipality's Director of
Emergency and Fire Services or a designate.
"Director of Planning Services" means the Municipality's Director of Planning Services
or a designate.
"Engineering Drawings" means drawings and/or specifications prepared by a
professional engineer respecting any Works.
"Final Works Cost Estimate" means the Preliminary Works Cost Estimate as revised
after the Engineering Drawings, Grading and Drainage Plan and Landscaping Plan have
been approved.
"Grading and Drainage Plan" means a plan showing (a) the existing and proposed
drainage pattern on the Lands and all lands adjacent to the Lands; (b) the direction of all
surface drainage, including water from adjacent land originally flowing through, into or over
the Lands to the municipal storm sewer system or any other outlet approved by the
Director; and (c)overland flow routes.
"Lands"means the lands described in recital B.
"Landscaping Plan" means a plan prepared by a qualified landscape architect showing
the proposed landscaping for the Lands (including all boulevards, entranceways, trees,
fencing, landscape strips, stormwater management facilities and parks) that meets
Standard Subdivision Agreement Page 127
Municipal Specifications,the requirements of any community theme plan approved by the
Directors, and any other requirements of the Directors.
"Landscaping Works" means all work described in the Landscaping Plan other than any
landscaping work that is part of the Stormwater Management Works.
"Letter of Credit" means an irrevocable and unconditional letter of credit issued by a
bank listed in Schedule "I" or Schedule "II" of the Bank Act, S.C. 1991, c.46 containing
terms-satisfactory to the Municipality's Director of Finance.
"Lot Grading Security"means the security required under section 5.6.
"Municipality" means The Corporation of the Municipality of Clarington including, where
appropriate, its agents, consultants, contractors, sub-contractors, employees or other
persons authorized to act on its behalf.
"Municipal Specifications" means the Design Guidelines and Standard Drawings
prepared by the Municipality in 2004(revised in 2010).
"Owner" means and includes, where appropriate, all agents,
consultants, contractors, sub-contractors, suppliers, employees and other persons for
whom the Owner is in law responsible.
"Owner's Engineer" means a professional engineer or a firm of professional engineers
retained by the Owner to perform the engineering duties set out in this Agreement.
"Performance Guarantee" means cash, a guaranteed investment certificate in favour of
the Municipality, or a Letter of Credit initially in an amount equal to 15%of the value of the
Base Works plus 120% the value of all other Works included in the Final Works Cost
Estimate.
"Phasing Plan" means a plan showing how the Works within the Lands are intended to
connect to subsequent phases of development, including the provision of temporary or
transitional works.
"Preliminary Works Cost Estimate" means the Preliminary Works Cost Estimate set out
in Schedule 6.
"Region"means The Corporation of the Regional Municipality of Durham.
"roads"means all road allowances, highways, streets and lanes shown on the 40M-Plan.
"Storm Sewer Works" means a system for the removal of upstream storm water and
storm water originating within the Lands, including storm sewer mains and connections,
manholes, service connections, catch-basins and rear yard catch-basins and leads, open
channels, ditches, storm outfalls and structures and any other appurtenances and over-
sizing as required.
"Stormwater Management Works" means a stormwater management system that is
consistent with the master drainage plan for the Lands, complete with overland flow
routes, detention and retention facilities, quality control devices, outlets, erosion and
sedimentation control measures, and all landscaping associated with such facilities.
"Street Lighting Works" means a street lighting system that provides illumination of
roads and walkways to serve the Lands including all connections, energy and
maintenance costs, appurtenant apparatus and equipment.
"Surface Works" means top curb and gutter, surface asphalt, sidewalks, all streetscape
components including street trees,boulevard topsoil and sod, driveway aprons, permanent
street name signs, fencing, walkways, and any remaining Works that are not part of the
Base Works,the Stormwater Management Works or the Street Lighting Works.
Standard Subdivision Agreement Page 128
"Tree preservation Plan" means the tree preservation plan prepared in accordance with
Municipal Specifications entitled prepared by
and dated
"Works" means all facilities, services, works and improvements, including all connections,
alterations, adjustments and transitions required to suit existing systems or lands, required
for the development of the Lands including the Base Works, Stormwater Management
Works, Storm Sewer Works, Street Lighting Works, Surface Works, and all fencing, noise
attenuation measures,walkways (including lighting)and other miscellaneous works shown
on the Engineering Drawings, Grading and Drainage Plan, Tree Preservation Plan and
Landscaping Plan.
"Works Component" means the Base Works, the Landscaping Works, the Stormwater
Management Works, the Street Lighting Works, or the Surface Works, or any components
specified in Schedule 7.
Standard Subdivision Agreement Page 129
SCHEDULE 2 e PLAN 40M
Standard Subdivision Agreement Page 130
SCHEDULE 3-STANDARD NOTICES AND WARNINGS
Assumption of Roads—A considerable period of time may elapse before the roads in
this subdivision are eligible for assumption by the Municipality. Until assumption, the
developer is responsible for their maintenance.
Boulevards — Nothing may be planted, constructed or installed within municipal road
allowance except as permitted under the Municipality's Boulevard By-law No.2013-066.
Construction—As is the case in any new subdivision, there will be ongoing construction
activity that that may affect the purchaser's use and enjoyment of the property including
mud, dust, noise, traffic delays, and a lack of full services such as sidewalks.
Drainage— Side or rear yard swales or any other drainage pattems on any lot cannot be
altered except with the permission of the Municipality.
Driveway Spacing— The width of driveways at the street must conform to the approved
house siting plans.
Future Development—Land surrounding this plan of subdivision may be rezoned to allow
for future development.
Grading— This lot will be graded by the builder in accordance with the plans approved by
the Municipality. Such grading may accommodate drainage from surrounding lands and
may include swales, slopes and retaining walls. In some cases, existing constraints and
topography may require the final grading design to vary from the Municipality's guidelines
which may affect the use of certain areas of the property. Issues regarding quality or
workmanship should be directed to the builder.
Mail Service — Door-to-door postal service will not be available within this plan of
subdivision. Instead, all mail will be delivered to community mailboxes in locations
approved by Canada Post and the Municipality.
Municipality's Gate Policy— No gates will be permitted in any fence required by the
subdivision agreement to be located between private property and Municipal property
without the approval of the Municipality's Director of Engineering.
Municipal Parking Requirements — All roads in this subdivision will be subject to the
Municipality's Traffic By-law No. 91-58, as amended, which may limit on-street parking.
Occupancy—Occupancy of any dwelling within this subdivision is not permitted unless an
occupancy permit has been issued by the Municipality.
Rural Ditching — Municipal ditches are constructed for the purpose of conveying road
drainage. Municipal maintenance of such ditches is limited to ditch functionality only. As a
result, ditches may have tall grasses, weeds and bulrushes, or may have local areas of
standing water and/or minor erosion. If the purchaser desires a higher standard of ditch
maintenance and appearance, it will be the purchaser's responsibility and may require
Municipal approval.
Schools — Students from this area may have to attend existing schools. Although a
school site has been reserved within this plan of subdivision, a school may not be built for
some time, if at all, and then only if authorized by the Ministry of Education.
Subdivision Agreement — The lands described in this Offer are subject to the
requirements of a Subdivision Agreement between
and the Municipality of Clarington dated , 201_. A copy of this Agreement is
registered on title to the property. Purchasers are advised that this Subdivision Agreement
authorizes the Municipality to enter onto all lands within the plan of subdivision in order to
carry out various-inspections.
Standard Subdivision Agreement Page 131
SCHEDULE 4-SPECIAL NOTICES AND WARNINGS
Note: See Conditions of Draft Plan approval
Standard Subdivision Agreement Page 132
SCHEDULE 5-LANDS/EASEMENTS TO BE TRANSFERRED
LANDS TO BE TRANSFERRED
1. Road Widenings:
2. Sight Triangles:
3. Reserves:
4. Parkland Dedications:
5. Landscaping Blocks and Walkways:
6. External Lands:
7. Other:
EASEMENTS TO BE TRANSFERRED
8. Servicing Easements:
9. Temporary Turning Circles:
10. External Lands:
11. Other:
Standard Subdivision Agreement Page 133
SCHEDULE 6-PRELIMINARY WORDS COST ESTIMATE
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
Sub-total: $
5%Contingency Allowance: $
Sub-total: $
10%Engineering Allowance: $
Sub-total: $
13%H.S.T.Allowance: $
Total Estimated Value of the Works: $
Total Amount of Performance Guarantee: $
Standard Subdivision Agreement Page 134
SCHEDULE 7-SPECIAL TERMS AND CONDITIONS
Winter Maintenance
1. Prior to the issuance of an Authorization to Commence, the Owner shall pay the
Municipality a flat rate of $ to cover the Municipality's costs of providing
winter maintenance services(section 4.6).
Street Lighting
2. Prior to the issuance of an Authorization to Commence, the Owner shall pay the
Municipality a lump sum of $ which represents a 2 year estimate of all
electricity costs for the Street Lighting Works(section 4.8).
Lot Grading Security
3. Prior to the issuance of any building permit, the Owner shall deposit with the
Municipality cash or a Letter of Credit in the amount of$ as Lot Grading
Security(section 5.8).
Note: Conditions of Draft Plan approval will contain additional special terms and
conditions.
Standard Subdivision Agreement Page 135
SCHEDULE 8-AGENCY REQUIREMENTS
Note: See Conditions of Draft Plan approval
Standard Subdivision Agreement Page 136
SCHEDULE 9 -CONDITIONS OF DRAFT PLAN APPROVAL