HomeMy WebLinkAbout2004-003
THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON
BY-LAW NO. 2004- 003
being a by-law to authorize entering into an Agreement with the Owners of Plan
of Subdivision 18T-96014 and any Mortgagee who has an interest in the said
lands, and the Corporation of the Municipality of Clarington in respect of
18T-96014
WHEREAS, Council on September 28, 1998, approved draft Plan of Subdivision
18T-96014, located in Part Lot 16, Concession 1, former Township of Darlington and
authorized the execution of a subdivision agreement with the Owner;
AND WHEREAS, the Owner(s) of draft Plan of Subdivision18T-96014 is now ready to
proceed to finalize the subdivision agreement;
NOW THEREFORE, the Council of the Corporation of the Municipality of Clarington
hereby enacts as follows:
1 , THAT the Mayor and Clerk are hereby authorized to execute, on behalf of the
Corporation of the Municipality of Clarington, and seal with the Corporation's
seal, an Agreement between the Owners of Plan of Subdivision 18T-96014.
2, THAT the Mayor and Clerk are hereby authorized to accept, on behalf of the
Municipality, the said conveyances of lands required pursuant to the aforesaid
Agreement.
19th
January
BY-LAW read a first time this
day of
2004
BY-LAW read a second time this
19th
day of
January
2004
BY-LAW read a third time and finally passed this
19th
day of January
2004
~.~"'."
~....,.'..
.,~~
John Mutt. ',::: ayor: :::
v~
_ d2. D (1-~
THIS AGREEMENT made in quintuplicate as of this ,5 day of )f\NI JM.X 2004 ~~
BETWEEN:
THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON
- and -
ASPEN SPRINGS WEST L TO.
SUBDIVISION AGREEMENT
Y"
Page 2
TABLE OF CONTENTS
ARTICLE 1 - INTERPRETATION AND SCHEDULES..............................,...................... 5
1.1 Definitions "....',.".......,'......,....."..............."....................,'............,.,........., 5
1.2 Schedules ......,........,........,........,....,.......,.........,..............................,........ 11
ARTICLE 2 - GENERAL ...................,...................,.............,............,..........................,..12
2.1 Recitals in Operative Part of Agreement.....................................,............ 12
2.2 Certification of Ownership .........,.....,............................,..,........................ 12
2.3 Copy of Plan and Agreements Required....................,.....,..........,......,..... 13
2.4 Transfer of Easements..............,.........................,......,.....,..........,......,.....13
2.5 Transfer of Lands ........,......,........,..........................,..,..,..,........................ 14
2.6 Registration of Transfers....,......................,.....,..........,.,..,...............,.,....,.14
2.7 Lands for School Purposes ,........,........,..,...........,..,...........................,..... 15
2.8 Charge on Lands ....,................,..........,..,........,..,.....................................15
2.9 Registration of Agreement .............,....,......,....,........................................15
2.10 Renegotiation and Amendment of Agreement ,...............,........................ 16
2.11 Municipality to Act Promptly...........,................,..,.......................,............. 17
2.12 Assignment of AgreemenL................................,....................................17
2.13 Replacement of Draft Plan with Final Plan(s),..............................,........,..18
2,14 Notification of Owner........,.......,....................................................,.......... 18
2,15 Postponement of Mortgage......,........,...........,...........,..,....................,...... 18
2,16 Successors,...."."....".......................".........."..........".,.......,.,......,.........., 19
ARTICLE 3 - FINANCIAL ..,..,..,........................,............................,........,......................19
3,1 Payment of Taxes ......,................,.........................,..,..,..........,......,..........19
3.2 Payment of Local Improvement Charges..........................,......,............... 19
3.3 Payment of Drainage Charges......,...........,.....,.................,...................... 19
3.4 Payment of Development Charges ........,.......,..,............,.........................20
3.5 Cash in Lieu of Land Dedication ..:........,........,..,............,..........,..............20
3.6 Performance Guarantee Required ........,........,..,............,.................,.......20
3.7 Use of Performance Guarantee .........,..,..........................................,.......21
3.8 Indemnification of Municipality .....,........,..,..,..,..,..................................,..,22
3.9 Insurance".,..".".....,."......"...."... ,....., ,.....,."...."..,."........... ,....,.............. 22
3.10 Maintenance Guarantee Required ..,..,........,..,...........,..,.................,........ 22
3.11 Use of Maintenance Guarantee ...........................,........,..........,............... 23
3.12 Reduction and Release of Performance Guarantee ......,..,......,..........,.... 23
3.13 Reduction and Release of Maintenance Guarantee ................................25
3,14 Payment of Municipality's Costs...........,......,...........,..................,.............25
3.15 Unpaid Monies .................,..,.................................................................,..26
3.16 Occupancy Permit DeposiL........................................,..................,..,.....26
ARTICLE 4 - PLANNING...........".........................,...........,...,..........,.,.........,.................28
4,1 Tree Preservation Plan ...................................,............,..........,................28
4.2 Landscaping Plan and Landscaping Requirements................,................28
4.3 Use of Lands,."."...."......".,.."."........."."."...."."."......,.....,...,. ,.. ....,..."..30
4.4 Lands Unsuitable for Building ,.......,....,..,......,........,..........................,......31
4.5 Lands Requiring Site Plan,..,............,..............................,........................31
4.6 Requirements for Building Permits..................................,......,......,..........31
4.7 Model Homes... ,..".,...................".........,......................,."......,. ,....,.....,.... 34
4.8 Architectural Control Standards ............,..,........,..........,..,.........,......,.......35
4,9 Requirements for Sale of Lands..........,.....,....,.................................,.......35
4.10 Requirements for Occupancy Permit ......................'...................,......,...., 37
4,11 Cash in lieu of Lands for Park or other Public Recreational
Purposes"...."."."..,. ,.."..............."."."......."..................,........,.......... ,.... 38
4,12 Special Conditions ......................................,..,..........................,..............39
(ii)
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Page 3
ARTICLE 5 - PUBLIC WORKS.........................,.....,............,...........,...................,..,......45
5.1 Municipality Works Required...."..,............"....,..........,."........,......,.,..,.....45
5.2 Utilities and Services Required ......,..,......................................................46
5.3 Owner's Engineer".,.....".....,............".........."................... ..,. .... '.. ,...,...,...46
5.4 Design of Works,............... ,........"............,........ ,......".".... ,...,.................,47
5,5 Engineering Drawings........,. ,.."............"."...."."."......'....,...".....".....,.... 48
5,6 Approval of Grading and Drainage Plan ,....,......,..,.............................,....49
5.7 Staging of Construction ................".............".......................,...".....,....,...49
5.8 Approval of Schedule of Works..,...............,.........,......,....,....,.........,........50
5.9 Approval of Works Cost Estimates and Stage Cost Estimates ....,..........,50
5,10 Requirements for Authorization to Commence Works ..,.........,....,..,..,.....51
5,11 Requirements for Commencement of Subsequent Stages of Works ..,.... 54
5,12 Inspection and Stop Work ......,..........,............,........,................,............... 54
5,13 Construction in Accordance with Engineering Drawings..........,............,.. 54
5.14 Sequence of Construction of Works,.......................,......................,......... 55
5,15 Completion Time for Construction of Works,..............,.....,..........,............ 55
5.16 Additional Work .....................,....................,........,..,......,..,.....:................. 55
5.17 Incomplete or Faulty Works and Liens ............,..,.........,........................... 55
5.18 Acknowledgment Respecting Emergency etc. Repairs.......,............,....... 58
5.19 Damage to Existing Services ........,...............,............................,.............58
5.20 Damage to Neighbouring Wells (Rural Applications Only)................,......58
5.21 Use of Works by Municipality.......:,..,..............,............,....,...........,.......... 60
5.22 Maintenance of Roads after Completion ,..............,........,..,....,......,..........60
5.23 Requirements for Certificate of Completion ......,.............,.........,......,.......61
5.24 Requirements for Certificate of Acceptance,..........................................., 62
5.25 Ownership of Works by Municipality ,...........,..........,................................62
5.26 Requirements for Certificate of Release ...........,..,........,..........,............,.. 62
5.ll ~U~.....,.......,..,.....,............"."......".,'.,.....".".,..,.........,......,......"..,..~
5.28 Cost of Works Referred to in Schedule "G"......,..,................,......,............63
ARTICLE 6 - COMPLIANCE WITH REGULATIONS...........,..........,..,..................,..,.....64
ARTICLE 7 - RESPONSIBILITY OF SUBSEQUENT OWNERS ....,..,...........................64
ARTICLE 8 - TIME OF ESSENCE...........,...............................,................,......,..........,..64
ARTICLE 9 - AUTHORITY TO MAKE AGREEMENT....................,...................,........... 64
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Page 4
THIS AGREEMENT made in quintuplicate as of this
day of
,2004
BET WEE N:
THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON
(hereinafter called the "Municipality")
OF THE FIRST PART
- and -
ASPEN SPRINGS WEST LTD.
(hereinafter called the "Owner")
OF THE SECOND PART
- and -
GEORGE IBANEZ, JOSE IBANEZ, HORTENSIA IBANEZ AND
BAYLY HOLDINGS
(hereinafter called the "Mortgagee")
OF THE THIRD PART
- and -
ROYAL BANK OF CANADA
(hereinafter called the "Mortgagee")
OF THE FOURTH PART
WHEREAS:
A The lands owned by the Owner which are affected by this Agreement are
described in Schedule "A" hereto, and are hereinafter called the "Lands";
B, The Owner represents and warrants that subject to Recital C it is the registered
Owner of the Lands in fee simple absolute;
C. The Owner represents and warrants that the mortgagee is the only mortgagee or
chargee of the Lands;
D. The Owner has received the approval of the Regional Municipality of Durham, to
draft Plan of Subdivision 18T-96014 of the Lands subject to compliance with certain
conditions thereto including the making of Subdivision Agreements with the Region and
the Municipality, respectively;
v
Page 5
E, The Owner has applied to the Municipality for approval of a final Plan of
Subdivision of the Lands and to the Region and the Municipality, respectively, for the
making of the aforesaid Subdivision Agreements;
F, The Owner represents and warrants that it has or will enter into an Agreement with
the appropriate Public Utilities Commission or other authority or company having
jurisdiction in the area of the said Lands for the design and installation of the utilities and
services referred to in Schedule "H" and hereinafter called the "Utilities and Services".
G, The Owner represents and warrants that it will enter into Agreements with the
Region and the Municipality to satisfy their respective requirements, financial and
otherwise in order to satisfy certain conditions of approval by the Region of draft Plan of
Subdivision 18T-96014;
H. This Agreement is made pursuant to the provisions of Subsection 51 (6) of the
Planning Act. It is authorized by By-law No. 2004-003 passed by The Corporation of the
Municipality of Clarington on January 19, 2004,
NOW THEREFORE WITNESSETH THAT in consideration of the premises and
the covenants hereinafter expressed, and the sum of two ($2.00) dollars of lawful money
of Canada now paid by each Party to the others (the receipt whereof by each Party is
hereby acknowledged), the Parties hereto covenant and agree to and with each other as
follows:
ARTICLE 1 -INTERPRETATION AND SCHEDULES
1.1 Definitions
(1) In this Agreement the term:
(a) "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.
(b) "Appropriate Authority" means the Municipality, the Region, a Ministry of
the Crown in right of Ontario or other authority or agency considered to be
appropriate for the purpose by the Director.
(c) "Assuming Purchaser" has the meaning assigned to it in paragraph
3.16(1) of this Agreement.
Page 6
(d) "Authorization to Commence Works" has the meaning assigned to it in
paragraph 5,10 of this Agreement.
(e) "Building Code Act" means the Building Code Act R.S.O.1990 c.B,13, as
it may be amended or replaced from time to time,
(f) "Certificate of Acceptance" has the meaning assigned to it in paragraph
5.24 of this Agreement.
(g) "Certificate of Completion" has the meaning assigned to it in paragraph
5.23 of this Agreement.
(h) "Certificate of Release" has the meaning assigned to it in paragraph 5.26
of this Agreement.
(i) "Commissioner" means the Commissioner of Planning of the Regional
Municipality of Durham,
U) "Construction Lien Act" means The Construction Lien Act, R.S.O. 1990 c.
C,30 as it may be amended or replaced from time to time,
(k) "Cost Sharing Report" means the "Cost Sharing Report" referred to in
Scheduled "G" of this Agreement.
(I) "Council" means the Council of The Corporation of the Municipality of
Clarington.
(m) "Damaged Services" has the meaning assigned to it in paragraph 5.19 of
this Agreement.
(n) "Development Charge" has the same meaning as is assigned to the term
in the Development Charges Act R.S.O, 1990, c. D.9.
(0) "Development Charge By-law" means Municipality By-law 92-105 as it
may be amended or replaced from time to time, and the term includes a
successor by-law to By-law No. 92-105 which is passed under subsection
3(1) of the Development Charges Act.
(p) "Development Charges Act" means the Development Charges Act,
R.S.O. 1990 c,D.9, as it may be amended or replaced from time to time.
Page 7
(q) "Director" means the Director of Engineering Services of the Municipality
of Clarington or his designated representative.
(r) "Director of Community Services" means the Director of Community
Services or his designated representative,
(s) "Director of Planning" means the Director of Planning Services of the
Municipality of Clarington or his designated representative.
(t) "Drainage Act" means the Drainage Act RS.O.1990, c.D.17 as it may be
amended or replaced from time to time.
(u) "Engineering Drawings" has the meaning assigned to it in paragraph 5.5
of this Agreement.
(v) "Final Works" has the meaning assigned to it in Schedule "G" of this
Agreement.
(w) "First Application" has the meaning assigned to it in Schedule "D" of this
Agreement.
(x) "First Excess Payment" has the meaning assigned to it in Schedule "D" of
this Agreement.
(y) "Hydrogeologist" has the meaning assigned to it in paragraph 5.20(1) of
this Agreement.
(z) "Second Excess Payment" has the meaning assigned to it in Schedule
"D" of this Agreement.
(aa) "Third Excess Payment" has the meaning assigned to it in Schedule "D"
of this Agreement.
(bb) "40M Plan" has the meaning assigned to it in paragraph 2,3 of this
Agreement.
(cc) "Grading and Drainage Plan" has the meaning assigned to it in paragraph
5.6 of this Agreement.
Page 8
(dd) "Initial Works" has the meaning assigned to it in Schedule "G" of this
Agreement.
(ee) "Land Registry Office" has the meaning assigned to it in Schedule "A" of
this Agreement.
(ff) "Lands" has the meaning assigned to it in Recital A of this Agreement.
(gg) "Landscaping Plan" has the meaning assigned to it in paragraph 4.2(2) of
this Agreement.
(hh) "Maintenance Guarantee" has the meaning assigned to it in paragraph
3,10(1) of this Agreement.
(ii) "Master Drainage Plan" has the meaning assigned to it in Schedule "G" of
this Agreement.
un "Minister" means the Minister of Municipal Affairs, Ontario.
(kk) "Monitoring Program" has the meaning assigned to it in paragraph
5.20(1) of this Agreement.
(II) "Municipality" means The Corporation of the Municipality of Clarington or
any official, designated by Council to administer the terms of this
Agreement.
(mm) "Occupancy Permit" has the meaning assigned to it in paragraph 4.10(1)
of this Agreement.
(nn) "Occupancy Permit Deposit" has the meaning assigned to it in paragraph
3,16(1) of this Agreement.
(00) "Occupancy Permit Scale" has the meaning assigned to it in paragraph
3,16(2) of this Agreement.
(pp) "Occupational Health and Safety Act" means the Occupational Health
and Safety Act R.S.O, 1990 c. 0.1 as it may be amended or replaced from
time to time,
Page 9
(qq) "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.
(rr) "Owner's Engineer" means a consulting civil engineer experienced in
performing the duties set out in Schedule "'" of this Agreement who or
which is a partnership, association of persons or a corporation that holds a
certificate of authorization, in their or its own name to practice professional
civil engineering and is licensed to do so under the Professional Engineers
Act R.S.O. 1990 c. P.28 as it may be amended from time to time provided
that the Owner's Engineer shall not be the Owner, or an officer, director,
shareholder or employee of the Owner.
(ss) "Performance Guarantee" has the meaning assigned to it in paragraph
3.6 of this Agreement
(tt) "Phase I of the Development of the Lands" means the development of
the portion of the Lands which is within the draft 40M Plan of Subdivision, a
copy of which is contained in Schedule "B",
(uu) "Phase Subsequent to Phase I 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 40M Plan of Subdivision contained in Schedule
"B" after such draft 40M 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 I of the Development of the Lands" includes only a
portion of the Lands which are not located within such draft 40M Plan of
Subdivision, the term "Phase Subsequent to Phase I of the Development of
the Lands" means the development of each portion of the Lands which is
within a separate 40M Plan of Subdivision which is registered against the
title to the portion of Lands to which it applies,
(w) "Planning Act" means the Planning Act R.S,O, 1990 c.P.13 as it may be
amended or replaced from time to time.
(ww) "Reapproved Engineering Drawings" has the meaning assigned to it in
paragraph 5,5 of this Agreement
Page 10
(xx) "Reapproved Grading and Drainage Plan" has the meaning assigned to
it in paragraph 5.6 of this Agreement.
(yy) "Region" means The Corporation of the Regional Municipality of Durham.
(zz) "Related Works" has the meaning assigned to it in Schedule "G" of this
Agreement.
(aaa) "Road System" has the meaning assigned to it in Schedule "G" of this
Agreement.
(bbb) "Schedule of Works" has the meaning assigned to it in paragraph 5.8 of
this Agreement.
(ccc) "Security for the Maintenance Guarantee" has the meaning assigned to
it in paragraph 3.10(2) of this Agreement.
(ddd) "Solicitor" means the Solicitor for the Municipality,
(eee) "Stage Cost Estimates" has the meaning assigned to it in paragraph 5.9
of this Agreement.
(fff) "Staging Plan" means the staging plan for the Lands approved by the
Director of Engineering Services pursuant to paragraph 5.11 of this
Agreement.
(ggg) "Stormwater Management System" has the meaning assigned to it in
Schedule "G" of this Agreement.
(hhh) "Storm Sewer System" has the meaning assigned to it in Schedule "G" of
this Agreement.
(iii) "Street Lighting System" has the meaning assigned to it in Schedule "G"
of this Agreement.
um "Temporary Occupancy Permit" has the meaning assigned to it in
paragraph 4.10(2) of this Agreement.
(kkk) "Tile Drainage Act" means the Tile Drainage Act R.S,Q. 1990, c. T.B as it
may be amended or replaced from time to time.
Page 11
(III) "Treasurer" means the Director of Finance of the Municipality or her
designated representative.
(mmm)"Tree Preservation Plan" has the meaning assigned to it in paragraph
4,1 (1) of this Agreement.
(nnn) "Utilities and Services" means the utilities and services referred to in
Schedule "H" of this Agreement.
(000) "Works" has the meaning assigned to it in paragraph 5.1 of this
Agreement.
(ppp) "Workplace Safety and Insurance Act, 1997" means the Workplace
Safety and I nsurance Act, 1997 S.o. 1997, c.16, Sch. A.
(qqq) "Workers' Compensation Act" means the Workers' Compensation Act
R.S,O. 1990, c. W,11 as it may be amended or replaced from time to time.
(rrr) "Works Cost Estimates" has the meaning assigned to it in paragraph 5.9
of this Agreement.
(sss) "1997 Development Charges Act" means assigned to it in paragraph
5.27(2) of this Agreement.
(2) Whether or not it so provides explicitly, every provision of this Agreement by which
the Owner is required to undertake any action shall be deemed to include the
words "at the cost of the Owner".
(3) Unless the context otherwise requires when used in this Agreement, the singular
includes the plural and the masculine includes the feminine.
1.2 Schedules
The following Schedules which are attached hereto, together with all provisions
therein, are hereby made a part of this Agreement as fully and for all purposes as would
be the case if they were set out in the text of this Agreement as covenants and
agreements:
Schedule "A"
Schedule "8"
"Legal Description of the Lands"
"Plan of Subdivision (Reduction)"
Page 12
Schedule "C"
Schedule "D"
Schedule "E"
"Charges Against the Lands"
"Schedule of Payment of Development Charges"
"Transfer of Easements (Reduction)"
"Lands to be Transferred to Municipality and/or "Cash
to be Paid in Lieu Thereof (Reduction)"
"Works Required"
"Utilities and Services Required"
"Duties of Owner's Engineer"
"Works Cost estimates"
"Insurance Required"
"Regulations for Construction"
"Use of the Lands"
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"
"Land Unsuitable for Building"
"Land Requiring Site Plan Approval"
Not Used
"Conservation Authority's Work"
"Engineering and Inspection Fees"
"Conditions of Approval"
"Tree Preservation Plan (reduction)"
"Landscaping Plan (reduction)"
"Requirements of Other Agencies"
"Architectural Control Standards"
Schedule "S"
Schedule "T"
Schedule "u"
Schedule "V"
Schedule "W"
ARTICLE 2 - GENERAL
2.1 Recitals in Operative Part of Agreement
The Owner represents and warrants to the Municipality that each of Recitals A to
G of this Agreement is correct.
2.2 Certification of Ownership
(1) On the execution of this Agreement, the Owner shall provide the Municipality with
a letter signed by an Ontario Solicitor and addressed to the Municipality certifying
as to the title of the said Lands and setting out the names of all persons having
interests in the said Lands and the nature of their interests.
On the execution of this Agreement, the Owner shall provide the Municipality with
a letter signed by an Ontario Solicitor and addressed to the Municipaiity certifying
as to the title of any land outside the limits of the said Lands, which is to be
Page 13
conveyed to the Municipality or in which easements are to be transferred to the
Municipality pursuant to the terms of this Agreement.
2.3 COpy of Plan and Aareements Required
On the execution of this Agreement, the Owner shall provide the Municipality with
as many copies as the Municipality requires of the final Plan of Subdivision of the Lands
as approved by the Commissioner, the Minister, or the Ontario Municipal Board as the
case may be. The draft final Plan of Subdivision as proposed by the Owner (the "40M
Plan") is contained in Schedule "B" attached hereto. The Owner shall also furnish to the
Municipality at the time of the execution of this Agreement, one (1) copy of the final Plan
of Subdivision which has marked on it the stamp of approval of the Region, and a copy of
the executed Subdivision Agreement entered into between the Owner and the Region
with respect to the Lands if the aforesaid Plan has been approved and Agreement has
been executed by the Parties thereto at the time of the execution of the Agreement. If at
the time of the execution of this Agreement, the aforesaid Plan has not been so approved
and/or the aforesaid Agreement between the Owner and the Region has not been
executed, the Owner shall provide the Municipality with a copy of the aforesaid Plan with
the stamp of approval of the Region marked thereon and/or a copy of the aforesaid
Agreement executed by the Region and the Owner forthwith after approval of the
aforesaid Plan is granted and/or the aforesaid Agreement is executed by the Parties
thereto, The Owner shall also furnish to the Municipality, at the time of execution of this
Agreement, one (1) copy of each of the Agreement(s) entered into by the Owner with the
Clarington Hydro-Electric Commission or other authority or company having jurisdiction in
the area of the said Lands for the design and installation of the Utilities and Services, or, if
such Agreement(s) have not been executed at the time of the execution of this
Agreement, the Owner shall provide the Municipality with one (1) copy of each such
Agreement(s) immediately after each such Agreement(s) is executed by the Parties
thereto,
2.4 Transfer of Easements
(1) On the execution of this Agreement, the Owner, at its cost, shall deliver to the
Municipality the executed transfers of easements which are set out in Schedule "E"
and shall pay to the Municipality in cash or by certified cheque the amount which is
equal to any tax, fee or cost payable at the time of or in respect of the registration
of such transfers against the title to he lands to which they apply. Such transfers
shall be free and clear of all encumbrances and restrictions, shall be made for a
nominal Gonsideration, shall contain provisions satisfactory to the Municipality's
Solicitor, and shall be in registerable form,
Page 14
(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 Municipality, the Region of Durham, the
Clarington Hydro-Electric Commission or other appropriate authority or company
for Municipality purposes, Region of Durham purposes or for Utilities and Services,
as the case may be, or for drainage purposes, the Owner agrees to transfer to the
Municipality, the Region of Durham, the Clarington Hydro-Electric Commission or
other appropriate authority or company, as the case 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(s) or block(s) shown on the Plan. If further easements are requested to be
transferred to the Municipality, the Region of Durham, the Clarington Hydro-
Electric Commission, or other appropriate authority or company, as the case may
be, the provisions of paragraph 2.4(1) shall apply with all necessary changes to it
being considered to have been made to give effect to the intent of this paragraph
2.4(2).
2.5 Transfer of Lands
On the execution of this Agreement, the Owner shall deliver to the Municipality
executed transfers, sufficient to vest in the Municipality title in fee simple absolute free
and clear of all encumbrances and restrictions, of the lands set out in Schedule "F" hereto
and shall pay to the Municipality in cash or by certified cheque an amount of money which
is equal to any tax, fee, or cost payable at the time of or in respect of the registration of
such transfers against the title to the lands to which they apply. All transfers referred to in
this paragraph 2.5 shall contain provisions to the satisfaction of the Municipality's
Solicitor, shall be made for a nominal consideration, and shall be in a registerable form.
2.6 Reaistration of Transfers
The transfers of easements and lands referred to In paragraphs 2.4 and 2.5 shall
be prepared by the Owner and shall be registered at the Owner's expense, at the same
time as the Plan is registered. If such transfers are of or in respect of lot(s) or block(s)
which are to be defined on the final Plan of Subdivision of the Lands when the Plan is
approved and registered against title, the registered number of the Plan shall be left blank
and the Owner hereby authorizes the Municipality to insert such Plan number after
registration of the Plan,
r
Page 15
2.7 Lands for School Purposes
(1) On or prior to the execution of this Agreement, the Owner shall deposit with the
Municipality, 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 any School Board which has an option to acquire any lot(s) or
block(s) comprising part of the Lands does not exercise its option, forthwith after
such School Board fails to exercise such option, the Owner shall give notice to the
Municipality in writing that the School Board has not exercised its option. The
Owner hereby grants to the Municipality an irrevocable option to acquire such
lot(s) or block(s) on the same terms and' conditions including, without limiting the
generality of the foregoing, the consideration to be paid to the Owner, as the
School Board could have acquired such lot(s) or block(s) by exercising its option
as aforesaid, except that the Municipality shall exercise the option hereby granted
by giving written notice to the Owner prior to the expiry of ninety (90) days after the
Municipality receives the aforesaid notice from the Owner that the School Board
has failed to exercise its option. The purchase of the lot(s) or block(s) in question
by the Municipality shall be completed within ninety (90) days after the exercise of
the Municipality's option as aforesaid,
2.8 Charge on Lands
The Owner hereby charges all its interest in the Lands with the obligations set out
in this Agreement.
2.9 Registration of AClreement
The Owner hereby consents to the registration of this Agreement or a notice
thereof against the title to the Lands. The Owner will not register, permit or suffer any
person to register any instrument after the registration of the final Plan of Subdivision
against the title to the Lands unless this Agreement and any transfers or other documents
required to be fumished hereunder have first been registered against the title to the
Lands or the appropriate portion(s) thereof, as the case may be. Without derogating from
the foregoing, the Owner also hereby consents to the registration of an Inhibiting Order(s)
or a Caution(s) against the title to the Lands or the relevant portion(s) thereof as the case
Page 16
may be, in order to give further effect to the foregoing and acknowledge that the
Municipality has reasonable cause to register an Inhibiting Order(s) or Caution(s) as the
case may be.
2.10 Reneqotiation and Amendment of Aareement
(1) Following the occurrence of any of the events set out below in this paragraph 2.10
(the "Renegotiation Events"), the Municipality may give written notice to the Owner
requiring that particular provisions of this Agreement specified in the notice shall
be renegotiated and, if necessary amended by the Parties. No later than the
expiry of the ten (10) day period following the date on which such notice is given,
the Owner will cease and will require all persons with whom it has a contractual
relationship to cease constructing and installing the Works referred to in such
written notice until the specified provisions of this Agreement have been
renegotiated and any necessary amendment(s) made to this Agreement. The
Renegotiation Events are the following:
(i) the Region, the Minister, or the Ontario Municipal Board approves a final
Plan of Subdivision for the said Lands which the Municipality considers to
be substantially different from the 40M Plan proposed by the Owner;
(ii) the final Plan of Subdivision is not approved by the Region and registered
against the title to the Lands within eighteen (18) months after the date as
of which this Agreement is made;
(iii) either if a Subdivision Agreement between the Owner and the Region has
not been executed at the date as of which of this Agreement is made, or if
such Subdivision Agreement between the Owner and the Region has been
so executed, it is amended subsequent to the date as of which this
Agreement is made, the provisions of such Subdivision Agreement between
the Owner and the Region, in the opinion of the Municipality, affect
materially the location or sizing of any of the Works to be supplied and
installed under the terms of this Agreement; or
(iv) construction or installation of any of the Works has not commenced within
two (2) years from the date of registration of the final Plan of Subdivision of
the Lands against the title to the Land;
Forthwith after the giving of written notice as aforesaid requiring the renegotiation
of specified provision(s) of this Agreement, the Owner and the Municipality will
Page 17
renegotiate the same in good faith and, with expedition. In the event that the
renegotiation has been completed or has not resulted in agreement by the Parties
prior to the expiry of the twenty (20) day period following the date on which the
notice requiring the renegotiation is given as aforesaid, at any time thereafter the
Municipality may give the Owner written notice declaring this Agreement to be
terminated whereupon it shall terminate.
(2) On the termination of this Agreement by the Municipality declaring it to be
terminated in accordance with paragraph 2.10(1), none of the Parties hereto may
make any claim against the Municipality for damages for any loss or cost or make
any claim against the Municipality for compensation in respect of any of the Works,
whether located in whole or in part on land in which the Municipality has an
interest. Notwithstanding the foregoing, the Owner and the Municipality expressly
agree that the covenants and agreements contained in paragraphs
3.8,3,14,5,17,5.19,5.20 and 5,21 and Article 7 of this Agreement will survive the
termination of this Agreement pursuant to paragraph 2.10(1), and paragraphs 3.8,
3.14, 5.17, 5,19, 5.20 and 5,21 and Article 7 of this Agreement shall continue to
bind the Owner and may be enforced by the Municipality in the same manner and
to the same extent as if this Agreement had not been terminated.
(3) Without derogating from the provisions of paragraph 2.10(1) from time to time by
mutual agreement. the Parties hereto may amend the terms of this Agreement and
any of the Schedules, but an amendment shall only be effective if in writing and
executed under the seals and hands of the proper officers of each Party.
2.11 Municipality to Act Promptly
Wherever the Municipality, the Municipality's Solicitor, the Municipality's Director of
Finance or any Municipality Director is required to take action pursuant to this Agreement,
or is required to make a decision or render an opinion, or give confirmation or give
authorization, permission or approval shall be made promptly in all respects and the
Municipality and its officials shall act reasonably,
2.12 Assi~nment of A~reement
The Owner shall not assign this Agreement without prior written consent of the
Municipality. For greater certainty, any assignment which is made contrary to this
paragraph 2.12 does not relieve a subsequent Owner of the Lands of any of his
obligations under this Agreement.
Page 18
2.13 Replacement of Draft Plan with Final Planes)
(1) The Parties hereto acknowledge that at the time of the execution of this
Agreement, only a red-lined copy of draft Plan of Subdivision 18T-96014 has been
approved by the Region. A copy of it is contained in Schedule "B" hereto. All
descriptions in this Agreement and the Schedules hereto refer to the proposed
lot(s) or block(s) and street(s) shown on such red-lined draft Plan of Subdivision.
The 40M Plan proposed by the Owner is also contained in Schedule "B".
(2) On a final Plan of Subdivision implementing Plan 18T-96014 approved pursuant to
the Planning Act, 1983 being registered against the title to anyone (1) or more
portions of the Lands, the registered final Plan of Subdivision shall be deemed to
be substituted for the red-lined draft Plan of Subdivision 18T-96014 for the
purposes of this Agreement. All amendments necessary to this Agreement shall
be considered to have been made to it and to the descriptions and references
contained in it, including without limiting the generality of the foregoing, Schedules
"B", "E", "F", "G", "N" ,"0" ,"P" and "Q", in order to replace the descriptions and
references to the redlined draft Plan of Subdivision 18T-96014 with descriptions
and references to and that are consistent with such registered final Plan of
Subdivision.
2.14 Notification of Owner
If any notice or other document is required to be or may be given by the
Municipality or by any official of the Municipality to the Owner under this Agreement, such
notice shall be mailed by first class prepaid post or delivered to:
The Owner: Aspen Springs West Ltd
1029 McNicoll Avenue
Scarborough, ON M1W 3W6
or such other address of which the Owner has notified the Municipality in writing. Any
such notice so mailed or delivered shall be deemed good and sufficient notice under the
terms of this Agreement and shall be effective from the date which it is so mailed or
delivered,
2.15 Postponement of Mortgage
The Mortgagee hereby postpones its mortgage to this Agreement with the intent
that this Agreement shall take effect as though dated, executed and registered prior to the
mortgage. I n the event that (1) the Mortgagee obtains an order of foreclosure against the
Page 19
Owner, (2) the Mortgagee directly or indirectly takes possession of the Lands, or (3) the
Lands are sold after default occurs under the mortgage, the Lands shall not be used or
developed by any person otherwise than in conformity with the provisions of this
Agreement. In order to give further assurance to the Municipality, the Mortgagee at its
cost shall execute a separate Postponement Agreement containing terms satisfactory to
the Municipality's Solicitor forthwith after being requested to do so by notice given in
writing to the Mortgagee and to deliver the same to the Municipality.
2.16 Successors
This Agreement shall ensure to the benefit of and be binding on the Parties hereto,
and their respective successors and assigns.
ARTICLE 3 - FINANCIAL
3.1 Payment of Taxes
Prior to the date of execution of this Agreement, the Owner shall pay all municipal
taxes outstanding against the Lands, as set out in Schedule "C" hereto, In addition, the
Owner shall pay any municipal taxes which may become due in respect of the whole or
anyone or more portions of the Lands after the date of execution of this Agreement in
accordance with the law.
3.2 Payment of Local Improvement Char~es
Prior to the date of execution of this Agreement, the Owner shall pay all charges
with respect to local improvements assessed, against the said Lands as set out in
Schedule "C" hereto. Such charges shall include the Municipality's share of any local
improvements which serve the said Lands and shall include the commuted value of such
charges including charges falling due after the date of the execution of this Agreement.
3.3 Payment of Draina~e Char~es
Prior to the date of the execution of this Agreement, the Owner shall pay all
drainage charges assessed under the Drainage Act and the Tile Drainage Act against the
Lands, as set out in Schedule "C" hereto, including the commuted value of such charges
falling due after the date of execution of this Agreement.
Page 20
3.4 Payment of Development Charges
(1) The Owner shall pay all Development Charges and portions of front-end payments
required by the provisions of the Development Charges Act the "1997 DC Act" (as
hereafter defined) and the Development Charge By-law passed under the Act or
the 1997 DC Act as is applicable in respect of the development of the Lands or
anyone or more portions thereof. The Owner shall pay the Development Charges
in accordance with the Schedule of Payment of Development Charges contained
in Schedule "D" hereto. Each payment of Development Charges set out in
Schedule "D" shall be adjusted as required by the Development Charge By-law
passed under the Act or the 1997 DC Act as is applicable prior to the issuance of
any building permit in respect of any lot(s) or block(s) on the Lands, to take into
account increases or decreases in the Development Charge rate imposed by the
Development Charge By-law then in effect as well as adjustments made on the
application of the "Index" (as hereafter defined),
(2) The Parties acknowledge and agree that none of the provisions of this Agreement,
including but not limited to paragraph 3.4 and Schedules "D" and "G", are intended
nor shall they 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 is imposed by the
Development Charge By-law passed under the Act or the 1997 DC Act as is
applicable and none of them shall 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 under the Development Charges Act.
3.5 Cash in Lieu of Land Dedication
On the execution of this Agreement, the Owner shall pay the Municipality the cash
payment in lieu of dedication of lands as set out in Scheduie "F" hereto.
3.6 Performance Guarantee Required
Prior to the date of issuance of any Authorization to Commence Work, the Owner
shall deposit with the Municipality, cash or an irrevocable and unconditional letter of credit
issued by a bank listed in Schedules "lor II" of the Bank Act, acceptable to the
Municipality's Director of Finance, and containing terms satisfactory to the Municipality's
Director of Finance. The deposit shall be in the amount determined by the Director to be
the amount required to secure to the Municipality the performance by the Owner of its
covenants contained in this Agreement to construct and install the Works and the
Page 21
performance of the Owner's obligations under paragraph 5.13(2) as well as the
performance by the Owner of its covenants under paragraphs 3.1, 3.2 and 3.3. With
respect to the works and without limiting the generality of the foregoing, in making his
determination, the Director may have regard to the "Works Cost Estimate" or the "Revised
Work Cost Estimate" (both terms as hereafter defined) whichever is applicable, for the
construction and installation of the Works which either are the subject of an Authorization
to Commence Work or for the issuance of which an Authorization to Commence Works
application has been made by the Owner. If from time to time following the issuance of
any Authorization to Commence Works the Director is of the opinion that the amount of
the Performance Guarantee should be increased in order to protect the Municipality's
interests under this Agreement, forthwith after the Director gives written notice to the
Owner requiring an increase in the amount of the Performance Guarantee, the Owner
shall deposit with the Municipality cash or an unconditional and irrevocable letter of credit
in such amount issued by a bank listed in Schedule "I" or "II" of the Bank Act that is
acceptable to the Municipality's Director of Finance and continuing terms satisfactory to
the Municipality's Director of Finance. (The cash deposit(s) or letter(s) of credit which is
(are) to be deposited by the Owner pursuant to this paragraph 3.6 and other provisions of
this Agreement are called the "Performance Guarantee".) In the evenUhat the Owner
does not increase the amount of the Performance Guarantee for a period of thirty (30)
days following the giving of written notice by the Director to the Owner requiring an
increase in the amount of the Performance Guarantee, (1) all Authorizations to
Commence Work that have been issued shall terminate, and (2) the Owner shall not
apply for or require the issuance of any permit for the construction of buildings or any part
of the Lands pursuant to the Building Code Act. Without derogating from the other
provisions of this Agreement, the Parties acknowledge that if the Owner deposits a letter
of credit with the Municipality's Director of Finance as the whole or part of the
Performance Guarantee or an increase thereof required by this Agreement, the
Municipality's Director of Finance, acting reasonably, may at any time draw on such letter
of credit and deposit the cash proceeds thereof in an account to the credit of Municipality
for disbursement in accordance with this Agreement.
3.7 Use of Performance Guarantee
From time to time the Municipality may appropriate the whole or anyone or more
portions of the Performance Guarantee up to an amount(s) determined by the Director,
which in aggregate shall not exceed the amount(s) which in the opinion of the Director are
required to remedy the Owner's breach(es) or default(s) of or under the provisions of this
Agreement. Forthwith after making each such appropriation, the Director shall give the
Owner written notice thereof and the Owner shall forthwith reinstate the Performance
Guarantee to the full amount(s) required by this Agreement.
Page 22
3.8 Indemnification of Municipality
(1) The Owner shall defend, indemnify and save the Municipality harmless from and
against all actions, claims, liabilities, losses, damages and expenses including
reasonable legal fees which arise by reason of or are caused in whole or in part by
the making and/or the implementation of this Agreement, or the design,
construction and installation, supervision of construction and installation,
inspection, and/or maintenance of the' Works by the Owner, its employees,
contractors, suppliers of services or materials, the Owner's Engineer, the Owner's
Engineer's employees, and the Owner's licensees.
(2) For greater certainty, the making of this Agreement is not intended to and shall not
have the effect of requiring the Municipality to do or refrain from doing any act or
making any recommendation necessary for the Owner to achieve approval of the
final Plan of Subdivision of the Lands and its registration against the title to the
Lands.
3.9 Insurance
The Owner shall obtain and maintain the insurance and deposit the proof thereof
as required by Schedule "K" of this Agreement' in accordance with Schedule "K" of this
Agreement
3.10 Maintenance Guarantee Required
(1) From the date of issuance of an Authorization to Commence Works until the date
of issuance of a Certificate of Acceptance of the Works or particular component(s)
of the Works, the Owner agrees with the Municipality to promptly correct, remedy,
repair or replace any portion or component of the Works in question that the
Director determines to be defective or deficient having regard to the provisions of
this Agreement at the Owner's cost (the "Maintenance Guarantee"). The amount
of the Maintenance Guarantee shall be determined in accordance with paragraph
3.12(1) of this Agreement The Owner shall be given written notice of any such
deficiency or defect by the Director forthwith after he identifies the same,
(2) The Maintenance Guarantee expires on the date of issuance of the Certificate of
Acceptance of the Works referred to in paragraph 3,10(1) which shall not be earlier
than the date of expiry of the relevant period of the Maintenance Guarantee for the
following Works as set out below:
Page 23
(a) "Initial Works" (as hereafter defined): the later of (1) the date of expiry of the
period of two (2) years which commences on the date of issuance of the
Certificate of Completion for the Initial Works, and (2) the date of issuance
of a Certificate of Completion for the "Final Works" (as hereafter defined);
(b) "Final Works": the date of expiry of the period of one (1) year that
commences on the date on which the maintenance period for the Initial
Works specified in paragraph 3.1 0(2)(a) expires;
(c) "Street Liqhtinq System" (as hereafter defined): the date of expiry of the
period of two (2) years which commences on the date of issuance of the
Certificate of Completion of the Street Lighting System; and
(d) "Stormwater Manaqement System" (as hereafter defined): the date of expiry
of the period of two (2) years which commences on the date of the issuance
of the Certificate of Completion of the Stormwater Management System
provided that such Certificate of Completion for the Stormwater
Management System shall not be issued prior to the issuance of the
Certificate of Completion for the Final Works.
3.11 Use of Maintenance Guarantee
From time to time, the Municipality may appropriate the whole or any part of the
Security for the Maintenance Guarantee if the Owner fails to pay any cost(s) payable by
the Owner to the Municipality under this Agreement. The amount(s) of such appropriation
shall not exceed the amount(s) which in the opinion of the Director are required to remedy
the Owner's breach(es) or default(s) as determined by the Director of correcting or
remedying a deficiency(s) or defect(s) in the Works or a portion or component thereof,
which is covered by the Maintenance Guarantee and is in question. Forthwith after the
Municipality makes any such appropriation, the Director shall give the Owner written
notice thereof. Forthwith, after the giving of such notice, the Owner shall restore the
Security for the Maintenance Guarantee to the full amount required by this Agreement.
3.12 Reduction and Release of Performance Guarantee
(1) Prior to the release of the Performance Guarantee, in the discretion of the Director,
the amount of the Performance Guarantee may be reduced, from time to time, to
reflect the progress of completion of the Works and other facilities and
improvements which are required to be constructed and installed by the Owner
after taking into account any outstanding claims the satisfaction of which is
Page 24
provided for in this Agreement. The maximum reduction that may be permitted to
be made by the Director is such that will leave on deposit with the Municipality's
Director of Finance as the Performance Guarantee an amount equal to the sum of
(1) the value of the uncompleted Works and the other facilities and improvements
as determined by the Director having regard for the Works Cost Estimates then in
force plus any amount determined by the Director but not to exceed twenty (20%)
percent of such value as a completion allowance payable to the Municipality, and
(2) as the Maintenance Guarantee fifteen (15%) percent of the value of the
completed Works, facilities and services, also determined by the Director after
considering the material, if any, submitted to the Director by the Owner's Engineer
in support of an application for reduction of the Performance Guarantee in respect
of the Works that have been completed by the Owner as well as the contract
documents, sub-contracts and supply contracts pertaining to the Works and the
provisions of the Construction Lien Act.
(2) The Owner will not require the Municipality to release to the Owner any unused
portion of the Performance Guarantee until each of the following conditions is
satisfied:
(a) A Certificate of Completion has been issued for the Works for which the
Performance Guarantee was initially required to be deposited with the
Municipality,
(b) The Owner has deposited or has left on deposit with the Municipality the
Maintenance Guarantee applying to the Works for which the Performance
Guarantee initially was required to be deposited with the Municipality.
(c) The Director is satisfied that in respect of the construction and installation of
the Works for which such Performance Guarantee was initially required to
be deposited with the Municipality, there are no outstanding claims relating
to such Works,
(d) The Municipality is satisfied that there are no outstanding claims relating to
the Works which the Municipality,is required or may be permitted to pay
either under the provisions of the Construction Lien Act or otherwise.
(e) The Municipality is satisfied that the Owner is not in breach of any of its
covenants contained in this Agreement.
Page 25
3.13 Reduction and Release of Maintenance Guarantee
The Owner agrees that the Municipality shall not be required to release to the
Owner the Security for the Maintenance Guarantee until each of the following conditions
are satisfied:
(a) A Certificate of Acceptance has been issued for the Works for which such
Maintenance Guarantee is required under this Agreement.
(b) The Municipality is satisfied that there are no outstanding claims relating to
such Works which the Municipality is required or may be permitted to pay
either under the provisions of the Construction Lien Act or otherwise,
(c) The Municipality is satisfied that the Owner is not in breach of any of its
covenants contained in this Agreement.
(d) With respect to all lots and blocks in the 40M Plan for which building permits
have been issued and Temporary Occupancy Permits have been received
by the Owner, the Municipality is satisfied that within the one (1) year period
of temporary occupancy under a Temporary Occupancy Permit the Director
has received the Owner's Engineer's written confirmation that grading of the
lots and blocks in question has been completed in accordance with the
approved Grading and Drainage Plan.
(e) The Director has received the as-constructed drawings for such Works from
the Owner as well as the computer disks, if any have been prepared by the
Owner's Engineer.
3.14 Payment of Municipality's Costs
(1) The Owner shall reimburse the Municipality for all reasonable legal, planning,
engineering and other technical advice, and administrative expenses actually
, incurred for the preparation and registration of this Agreement and the reasonable
cost of all legal services contemplated by the terms of this Agreement, which
include the review of the Performance Guarantee, the review of the Security for
the Maintenance Guarantee and the preparation of a Certificate(s) of Release,
provided that services have actually been performed for the Municipality.
(2) The Owner shall pay to the Municipality Engineering and Inspection fees in
accordance with the provisions of Schedule "R".
Page 26
(3) After giving reasonable notice to the Municipality, the Owner may inspect, during
regular business hours, such accounts, invoices, time records and other
documents and calculations of charges for which the Municipality is requiring
reimbursement pursuant to paragraph 3.14(1).
3.15 Unpaid Monies
Except as otherwise provided in this Agreement, the due date of any money
payable under it, unless a different due date is specified in this Agreement, shall be thirty
(30) days after the date of the giving of the written invoice to the Owner. Interest shall be
calculated and be paid by the Owner to the Municipality on all sums of money of which
the Owner is in default at the same rate, and in the same manner, and at the same time
as is the case with Municipality taxes which are in arrears at the date on which the default
in question commences,
3.16 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 and/or a person who has entered into an
agreement with the Municipality containing terms satisfactory to the Municipality to
assume the obligations of the Owner under this Agreement relating to a specific
lot(s) or block(s) on the 40M Plan (the "Assuming Purchaser") shall deposit with
the Municipality an irrevocable and unconditional letter of credit issued by a bank
listed in Schedules "I" or "II" of the Bank Act acceptable to the Municipality's
Director of Finance, in the amount of $30,000.00 dollars (the letter(s) of credit
are referred to as the "Occupancy Permit Deposit") to secure the performance of
the Owner's covenant to the Municipality under this Agreement that occupancy of
any dwelling(s) on the Lands will not take place before an "Occupancy Permit" (as
defined in paragraph 4,10) is issued by the Director of Planning in respect of such
dwelling(s) pursuant to paragraph 4,10, The letter of credit(s) shall contain terms
satisfactory to the Municipality's Director of Finance. In the event that occupancy
of a dwelling or dwellings occurs before the date of issuance of an Occupancy
Permit contrary to the provisions of paragraph 4.10, the Municipality may draw
upon and appropriate from the Occupancy Permit Deposit the amount necessary
to permit the Municipality to comply with the requirements of paragraph 4.10 on the
Owner's and/or the Assuming Purchaser's behalf and/or at the Owner's or the
Assuming Purchaser's cost, as the case may be. In the event that the Municipality
so appropriates the whole or any part of the Occupancy Permit Deposit, forthwith
after it and/or they are given written notice of the amount of the appropriation, the
Owner and/or the Assuming Purchaser shall restore the Occupancy Permit
Page 27
Deposit to the full amount of $30,000.00 dollars, The Occupancy Permit Deposit
or the unused portion thereof shall be returned to the Owner and/or the Assuming
Purchaser at such time as the last dwelling which may be constructed on the
Lands is permitted to be occupied pursuant to an Occupancy Permit issued in
accordance with this Agreement and are in good standing. If a letter(s) of credit is
deposited as the Occupancy Permit Deposit, the Municipality agrees to permit its
(their) replacement from time to time by the Owner and/or the Assuming
Purchaser, as the case may be, provided that at all times the Occupancy Permit
Deposit is maintained as is required by this paragraph 3.16(1). Following each
such permitted replacement of a letter(s) of credit, the Municipality will return the
replaced letter(s) of credit to the Owner and/or the Assuming Purchaser.
(2) The Occupancy Permit Deposit requirement referred to in paragraph 3.16(1) is
based on the following "Occupancy Permit Scale" of the Municipality which is
current on the date of execution of this Agreement.
up to 10 units
11 to 50 units
51 to 100 units
101 to 250 units
251 to 500 units
over 500 units
$ 10,000.00
$ 20,000.00
$ 30,000.00
$ 40,000,00 (98 units)
$ 60,000,00
$100,000.00
The Owner agrees with the Municipality that the Municipality in its discretion may
amend its Occupancy Permit Scale from time to time prior to the date on which the
Occupancy Permit Deposit is deposited with the Municipality pursuant to
paragraph 3.16(1). The Owner shall increase the amount of the Occupancy
Permit Deposit in accordance with the Municipality's amended Occupancy Permit
Scale forthwith after the Director of Planning gives written notice to the Owner
requiring it to do so. In the event that the Owner does not increase the amount of
the Occupancy Permit Deposit for a period of twenty (20) days following the giving
of written notice by the Director to the Owner requiring an increase in the amount
of the Occupancy Permit Deposit, (1) all Authorizations to Commence Works that
have been issued shall terminate, and (2) the Owner shall not apply for or require
the issuance of any permits for the construction of buildings on any part of the
Lands pursuant to the Building Code Act.
(3) Prior to the issuance of a building permit for the first (1 st) dwelling proposed to be
constructed in each Phase Subsequent to Phase I of the Development of the
Lands, the Owner will deposit with the Municipality, an Occupancy Permit Deposit
in the amount produced by applying the Municipality's Occupancy Permit Scale
which is current at the date on which the Occupancy Permit Deposit is required to
Page 28
be lodged with the Municipality to the number of lots within the phase in question.
The provisions of paragraph 3,11 (1) shall apply in respect of the Occupancy
Permit Deposit for each Phase Subsequent to Phase I 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 3.16 (3).
ARTICLE 4 - PLANNING
4.1 Tree Preservation Plan
(1) Prior to the issuance of any Authorization to Commence Works the Owner shall
have obtained the written approval of the Director of Engineering Services of a
plan for the preservation of trees on the said Lands (the "Tree Preservation Plan").
The Director may at his discretion, vary in certain circumstances, which trees are
to be inventoried. Generally the plan should show:
(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 shown on the Tree Preservation Plan. No existing
tree shall be removed until the Tree Preservation plan has been approved by the
Director of Planning Services and the Director of Engineering Services. Thereafter
an existing tree may be removed only if permitted by the Tree Preservation Plan.
The Owner shall 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 in his
discretion.
4.2 Landscaping Plan and Landscaping Requirements
(1) Prior to the issuance of any Authorization to Commence Works which are located
within Phase I of the Development of the Lands, or a Phase subsequent to Phase
1 of the Development of the Lands, the Owner shall obtain the written approval of
the Director of Planning Services and the Director of Engineering Services of the
"Landscaping Plan" (as hereafter defined).
Page 29
(2) Prior to the execution of this Agreement, the Owner shall retain a qualified
landscape architect acceptable to the Director of Planning Services and the
Director of Engineering Services. The limdscape architect shall prepare a draft
landscaping plan showing for Phase 1 of the Development of the Lands showing,
amongst other things required by the Director of Engineering, boulevard road
areas and vegetation, trees to be planted thereon and fencing and screen planting
as required by paragraph 4.2(4), The draft landscaping plan shall conform with
and implement the Municipality's landscaping design criteria, as amended from
time to time, the approved Engineering Drawings and the other provisions of this
Agreement When the draft landscaping plan has been settled to the satisfaction
of the aforesaid Director and approved, it is the "Landscaping Plan" for the
purposes of this Agreement.
(3) The Parties acknowledge that the Landscaping Plan contained in Schedule "U"
hereto is the Landscaping Plan for the purposes of this Agreement.
(4) Prior to the date of issuance of any Authorization to Commence Works which are
located within a Phase Subsequent to Phase I of the Development of the Lands,
the Owner shall obtain the written approval of the Director of Planning Services
and the Director of Engineering Services to a draft Landscaping Plan for such
subsequent Phase, and the provisions of paragraph 4.2(1) shall apply with all
necessary changes thereto being considered to have been make 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 are to be sodded and all lots in Rural Areas are to be
sodded or seeded, as may be required by the Director of Planning Services,
within one (1) year of occupancy of the dwellings;
(b) except where otherwise provided in the Municipality's Design Criteria and
Standard Detailed Drawings, 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);
(c) all trees shall be planted in accordance with the approved Landscaping
Plan and the latest Municipal Guidelines and Standard Drawings. Prior to
planting, Engineering staff shall be contacted to approve the tree nursery
source, the quality of trees, the planting schedule and planting methods.
Trees shall be maintained for the duration of the Maintenance Period by a
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qualified horticulturist, who shall certify the good health of all trees prior to
acceptance by the Municipality;
(d) screen planting and fencing shall be provided between residential uses and
other uses in accordance with the Municipality's landscaping design criteria
and the relevant Landscaping Plan;
(e) fencing shall have a minimum height of one point eight (1.8) metres. Chain-
link fencing is not permitted except in areas abutting walkway, schools,
parks, open space blocks and then only in accordance with the
Municipality's landscaping design criteria, the Municipality's Gate Access to
Municipal Open Space Policy, and the relevant Landscaping Plan; and
(f) where wood fencing is proposed, it must be constructed either of pressure
treated wood or wood of equivalent longevity in the opinion of the Director
of Engineering,
(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 I
of the Development of the Lands and the relevant Landscaping Plan for each
Phase subsequent to Phase I of the Development of the Lands expeditiously
during the construction of dwellings on the Lands. Any default by the Owner in
satisfying any of the requirements of paragraph 4.2 may be remedied or corrected
by the Municipality at the Owner's cost. Without limiting the Municipality's rights
under any other provision of this Agreement, the Owner acknowledges and agrees
with the Municipality that the Municipality may appropriate a portion of the
Performance Guarantee to indemnify the Municipality in respect of the cost of
remedying or correcting any such default of the Owner at any time when deemed
necessary by the Director of Planning. On each occasion, forthwith, after the
Director of Planning gives the Owner written notice of the amount so appropriated,
the Owner shall restore the Performance Guarantee to the amount required by this
Agreement.
4.3 Use of Lands
The Lands shall not be used for any purpose other than the purposes set out in
Schedule "M" hereto, provided that such purpose is permitted by the Municipality's By-law
84-63, as amended from time to time,
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4.4 Lands Unsuitable for Building
The Parties acknowledge and agree that the lot(s) or block(s) which are set out in
Schedule "N" hereto are unsuitable for building purposes. The Owner will not make,
cause or permit an application to be made for a building permit for the construction of any
structure on any such lot(s) or block(s) until the conditions set out in Schedule "N" for
such lot(s) or block(s) have been satisfied to the approval of the Director of Planning and
the Director of Engineering and/or any other authority having jurisdiction in respect of the
matter. The Owner shall maintain the lot(s) or block(s) set out in Schedule "N" in a
condition acceptable to the Director of Planning.
4.5 Lands Requiring Site Plan
The Owner shall not make or cause or suffer any person(s) to make an application
for a building permit in respect of any lot(s) or block(s) within the Plan which are set out in
Schedule "0" until the Owner has entered into a Site Plan Agreement with the
Municipality respecting the development of such lot(s) or block(s) under Section 41 of the
Planning Act, provided that any application for a building permit shall comply in all
respects with the terms of the said Site Plan Agreement and all applicable laws.
4.6 Requirements for Building Permits
The execution of this Agreement by the Municipaiity, the approval by the
Municipality of the 40M Plan for Phase 1 of Development of the Lands or for any Phase
Subsequent to Phase 1 of Development of the Lands, and the issuance of any Certificate
of Acceptance of Works, do not constitute a representation or covenant by the
Municipality to any person, nor shall be taken to give any assurance to the Owner or to
any other person that building permits for buildings proposed to be constructed on any
portion of the Lands when applied for, will be iss,ued, Without limiting the generality of the
foregoing, the Owner will not apply for or cause or permit an application to be made by
any person for a building permit for a building proposed to be constructed on any of the
Lands, made until the following requirements are satisfied:
(a) All easements required to be transferred by this Agreement to the Municipality, the
Region of Durham or the Clarington Hydro-Electric Commission, and all
easements required to be transferred for the purpose of Utilities and Services
referred to in Schedule "H", and all easements required to be transferred or
reserved for the purpose of drainage or access to the lot(s) or block(s) in respect of
which an application for a building permit(s) is made, have been transferred to or
reserved by the appropriate person as required by this Agreement.
Page 32
(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).
(c) All of the Works required to be constructed and installed under road{s) referred to
in paragraph 4.6(b) have been'tonstructed and installed to the satisfaction of the
Director.
(d) 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 authority or company having jurisdiction over such Utilities and Services.
Alternatively, the Municipality has received written confirmation from such
Commission, authority or company, as the case may be, that sufficient financial
security(s) have been received by it (them) on which it or they may draw to payor
to reimburse itself (themselves) in respect of the costs of the design, construction
and installation of such Utilities and Services if the Owner fails to construct and
install them.
(e) The Owner has provided the Director of Planning with a paper draft of the
registered Plan of Subdivision of the Lands. The Owner shall provide the Director
of Planning with a mylar copy of such reg,istered Plan of Subdivision forthwith after
it is made available to the Owner by the Land Registry Office.
(f) The Development Charges required to be paid by the Owner to the Municipality
pursuant to paragraph 3.4 and Schedule "D" have been paid in respect of the lot(s)
or block(s) for which application is made for a building permit.
(g) The Owner has deposited with the Municipality the Occupancy Permit Deposit as
required by paragraph 3,16 of this Agreement and it is in good standing.
(h) If the application for a building permit is for a building proposed to be constructed
on any lot(s) or block(s) set out in Schedule "N", the Owner has satisfied the
conditions with respect to the development of such lot(s) or block(s) set out in
paragraph 4.4 of this Agreement.
(i) If the application for a building permit is for a building proposed to be constructed
on any 101(s) or block(s) set out in Schedule "0", the Owner has entered into a Site
Plan Agreement under Section 41 of the Planning Act with respect to the
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development of such lot(s) or block(s) in accordance with paragraph 4.5 of this
Agreement.
U) The Performance Guarantee and the Security for the Maintenance Guarantee
provided for in this Agreement have been deposited with the Municipality and are
in good standing and all sums of money required to the Municipality by the Owner
pursuant to this Agreement have been paid.
(k) The applicant has submitted a Site Plan satisfactory to the Director and certified as
being correct by the Owner's Engineer which demonstrates to the satisfaction of
the Director that the final grades of the lot(s) or block(s) in respect of which the
application for a building permit(s) is made are appropriate for the bUilding(s)
proposed to be constructed thereon, the grading of the lot(s) or block(s) in question
and the proposed access thereto conforms with the Grading and Drainage Plan
approved by the Director for the particular lot(s) or block(s) as well as with the
Municipality's Design Criteria and Standard Detail Drawings.
(I) The Owner has erected or caused to be erected a sign displaying all road(s), lot(s)
or block(s) within the Plan sufficient to illustrate the future housing types and
distribution, the location of any park, open space, school or commercial blocks
proposed on the said Lands, as well as all future uses for lands which abut the
said Lands as identified by an approved Official Plan, Neighbourhood Plan, or
Hamlet Development Plan and/or an approved Draft Plan of Subdivision of such
abutting lands.
(m) (i)
The Owner has constructed access routes to the subdivision in satisfaction
of the requirements of the Ontario Building Code and has installed all
necessary watermains and hydrants which are fully serviced.
(ii) The Owner has agreed with the Municipality that during construction of the
building pursuant to the building permits which have been applied for fire
access routes will be maintained continuously as required by the Ontario
Fire Code, storage of combustible waste will be maintained in accordance
with the Ontario Fire code, and open burning will not occur contrary to the
Ontario Fire Code.
(iii) The Owner has agreed with the Municipality to comply with the Ontario Fire
Code with respect to Combustible Waste and Open Burning.
(iv) The Owner has agreed with the Municipality to have regard for the
Page 34
"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.
(n) The Owner has received the written approval of the Director of Planning Services
of the design of all dwelling(s) to be erected on Phase 1 of the Development of the
Lands or on a Phase Subsequent to the Development of Phase 1 of the Lands
that the design of the dwellings satisfies the Architectural Control Standards
contained in Schedule "W" hereto.
(0) The Owner has satisfied the requirement 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 permit(s) for model home(s) to be used for sales display
purposes which it proposes to construct on not more than ten (10%) percent of the
total number of lot(s) within the registered Plan of Subdivision of the Lands,
provided that:
(a) each such application is in conformity with all By-laws of the Municipality,
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 Municipality as is required by law and this Agreement;
(c) the Owner has satisfied the Director that the final grades of the lot(s) or
block(s) is appropriate for the proposed model home(s) and that such final
grades are in compliance with the Grading and Drainage Plan;
(d) the Owner has complied with the provisions of paragraphs 4.6(1) and 4.6(n)
of this Agreement.
(e) All the Works required to be constructed and installed under road(s)
referred to in paragraph 4.6 (b) have been constructed and installed to the
satisfaction of the Director.
(2) Prior to the date of issuance of any building permit for a model home(s), the Owner
shall obtain the approval of the Director of the proposed access to the model
Page 35
home(s) in question. In each case, such access shall be to the satisfaction of the
Director and the Municipality's Director of Emergency Services Department.
(3) 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 of
the Municipality may have under this Agreement, a statute, a regulation, or a by-
law, the provisions of paragraph 3.16 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 Municipality that if the Owner
constructs or causes or permits any person to construct one (1) or more model
home(s) 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 operational for fire
protection purposes to the satisfaction of the Municipality's Director of Emergency
Services Department, the construction and/or use of the model home(s) is entirely
at the risk of the Owner. The Owner shall save the Municipality harmless and
indemnify the Municipality from and against all actions, claims, liabilities, losses,
damages and expenses, 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 4.7(4).
4.8 Architectural Control Standards
Subject to paragraph 4.6(n) of this Agreement, all dwellings to be erected shall
satisfy the Architectural Control Standards as contained in Schedule 'W" hereto.
4.9 Requirements for Sale of Lands
Without derogating from any other provision of this Agreement the Owner shall not
sell the Lands or anyone (1) or more portions of the Lands until each of the following
conditions is satisfied:
(a) the transfers of easements and transfers of lands referred to in paragraphs 2.4 and
2.5 have been registered in accordance with paragraph 2.6;
Page 36
(b) where a building permit has not been issued in respect of a lot(s) or block(s)
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 Municipality
by which such purchaser agrees with the Municipality, that prior to the issuance of
a building permit for a building on the land in question, he will deliver to the
Municipality, the Clarington Hydro-Electric Commission, other authority and/or
company, as the case may be, any transfers of easements as in such lot(s) or
block(s) which are required for Municipality, Region of Durham and Utilities and
Services or drainage purposes, as determined by the Director, forthwith after
written request by the Director therefore is given to the Owner; the Owner has
obtained from such prospective purchaser of a lot(s) or block(s), a licence to permit
the Owner and/or Municipality, to enter on the lot(s) or block(s) in question in order
to perform the Owner's obligations under this Agreement and to permit the
Municipality to exercise its rights under this Agreement to correct or remedy a
default of the Owner in such performance;
(c) the Owner has obtained from such prospective purchaser of a lot(s) or block(s), a
licence to permit the Owner and/or Municipality, to enter on the lot(s) or block(s) in
question in order to perform the Owner's obligations under this Agreement and to
permit the Municipality to exercise its rights under this Agreement to correct or
remedy a default of the Owner in such performance;
(d) the Performance Guarantee, the Security for the Maintenance Guarantee and all
cash deposits or letters of credit required by this Agreement have been deposited
with the Municipality and all letters of credit deposited with the Municipality are in
good standing; and
(e) the Owner has included in the Agreement to purchase the Lands or the lot(s) or
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;
. the Municipality's Traffic By-law 91-58 pertaining to on-street parking;
. information that satisfies Subsection 59(4) of the Development Charges Act,
1997;
. notice regarding the type of mail service and the location of mail boxes;
. the Municipality's Gate Access to Municipal Open Space Policy; and
. and the provisions of Article 7 in respect of the obligations of subsequent
Owners.
Page 37
4.10 Requirements 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 written permission of the Municipality (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 untii 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 asphalt, 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) aU of the Utilities and Services, with the exception of telephone and cable
TV., 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 Clarington 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(s) or block(s), on which such building is located has
been developed in conformity with the Grading and Drainage Plan, or the
Owner has given written approval by the Director to vary the requirements
of the approved Grading and Drainage Plan with respect to the lot(s) or
block(s) in question; and
(f) the building has been finally inspected and approved pursuant to the
Building Code Act, the Ontario Building Code and the Plumbing Code.
Page 38
(2) Notwithstanding the provisions of paragraph 4.10(1)(e), the Owner may be issued
a permit (the "Temporary Occupancy Permit") by the Director of Planning to permit
the temporary occupancy of a dwelling provided that the Owner establishes to the
satisfaction of the aforesaid Director that it has been unable to comply with the
requirements of paragraph 4,10(e) by reason of seasonal, weather or other
conditions which are considered by the Director, in his discretion, to be beyond the
control of the Owner. Prior to the issuance of a Temporary Occupancy Permit the
Owner shall establish, to the satisfaction of the Director of Planning that the
provisions of paragraphs 4.10(1 )(a), (b), (c), (d) and (f) have been satisfied. The
Owner also shall provide to the aforesaid Director the written confirmation required
by paragraphs 4.10(1 )(e) within one (1) year from the date of the commencement
of the Temporary Occupancy Permit respecting the dwelling in 'question. Until
such written confirmation is provided to the aforesaid Director, the Municipality may
retain the Occupancy Permit Deposit provided for by paragraph 3.16 of this
Agreement, whether or not a Temporary Occupancy Permit has been issued. If
the Owner does not comply with the approved Grading and Drainage Plan within
ten (10) days, excluding Saturday and Sunday, after being required to do so by
written notice given to the Owner by the Director, the Municipality may appropriate
the approved Grading and Drainage Plan, as determined by the Director in his
discretion, provided that the Director shall give written notice to the Owner forthwith
after making each such appropriation of the amount of the appropriation in
question. If the written confirmation which is required by paragraph 4.10(1)(e) is
not provided to the aforesaid Director within one (1) year of the date of issuance of
a Temporary Occupancy permit, no person shall occupy the dwelling in respect of
which a Temporary Occupancy Permit has been issued until an Occupancy Permit
respecting the dwelling has been issued pursuant to paragraph 4.10(1).
(3) The Owner acknowledges and agrees that prior to the issuance of a "Temporary
Occupancy Permit" referred to in paragraph 4.10(2), the Owner through its
qualified Acoustic Engineer approved by the Director, has confirmed in writing to
the Director of Planning Services, that the dwelling in question has been
constructed in accordance with the approved Noise Impact Study referred to in
paragraph 4.12(23), 4.12(24), 4.12(25), 4.12(26) and 4.12 (27 ) of this Agreement.
4.11 Cash in lieu of Lands for Park or other Public Recreational Purposes
Without derogating from the other provisions of this Agreement, on the execution
of this Agreement, the Owner shall pay to the Municipality in cash the amount of money in
lieu of the transfer of land to the Municipality for parks and other public recreational
purposes which is set out in Schedule "F",
Page 39
4.12 Special Conditions
(1) During construction on the Lands the Owner shall maintain fire access routes to
the satisfaction of the Municipality's Director of Emergency Services Department
(2) In cases in which an Appropriate Authority determines that the well or private water
supply of any person is interfered with either as a result of the grading of,
construction on, or the development of the Lands or any portion of the Lands, or as
a result of the construction or installation of any of the Works, the Owner, at its
cost, either shall connect the affected person to the Municipal water supply system
or shall provide a new well or private water system so that water supplied to the
affected person shall be of quality and quantity at least equal to the quality and
quantity of water enjoyed by the affected person prior to the interference.
(3) The Owner shall comply with the provisions of Schedule "a", Schedule "S" and
Schedule 'V" hereto,
(4) Any deadends and/or open side of road(s) allowances created by this draft Plan
shall be terminated in zero point three (0.3) metre reserve(s) which shall be
transferred to the Municipality, Paragraphs 2.5 and 2.6 apply in respect of such
transfers with all changes necessary being considered to have been made to them
and give effect to this paragraph 4.12(4).
(5) Without derogating from paragraph 4.12(2), in cases in which the Appropriate
Authority has determined that the well or private water supply of any person is
interfered with, the Owner shall at his expense either connect the affected party to
a municipal water supply system or a private system so that water supplied to the
affected party shall be of quality and quantity at least equal to the quality and
quantity of water enjoyed by the affected party prior to the interference.
(6) The following Warning clause shall be attached to all offers of purchase and sale
of dwellings on all lots and blocks as shown on the 40M-Plan for all phases of the
Lands:
''The Purchaser acknowledges that the lot shall be graded by the purchaser's
builder, in accordance with plans approved by the Municipality of Clarington, and
that issues regarding quality of workmanship should be directed to the purchaser's
builder. Such lot grading may be required to accommodate drainage from
surrounding lands and may include swales, slopes, retaining walls and, where
applicable, sewers and catchbasins on easements, In order to accommodate
existing constraints such as existing topography, existing physical features on
adjacent lands. the final grading design may vary from the Municipality's
guidelines, as determined appropriate by the Director of Engineering Services. The
purchaser should be aware that these measures may limit the use of certain areas
Page 40
of their property and must satisfy themselves with respect to the final grading of
their lot". " The purchaser should be aware that these measures may limit the use
of certain areas of their property and must satisfy themselves with respect to the
final grading of their lot",
(7) The Owner is to provide the Director of Planning Services, on disk in a CAD format
acceptable to the Municipality, a copy of the Plan of Subdivision as draft approved
and the proposed 40M-Plan.
(8) The Owner acknowledges and agrees where the Director of Planning Services and
Director of Engineering determines an Adult Crossing Guard is required due to
safety concerns for children crossing a street where such safety concerns are
attributed to vehicular traffic from construction activity or altered traffic pattems due
to construction activity, the Owner will reimburse the Municipality the costs
attributed to the Municipality's placement of an Adult Crossing Guard on a
temporary basis.
Furthermore, the Owner acknowledges and agrees the length of time that the
temporary Adult Crossing Guard is required is at the sole discretion of the Director
of Planning Services and the Director of Engineering.
(9) The Owner acknowledges and agrees at his costs, to display plans, which clearly
indicate the land uses surrounding the approved plan of subdivision and that
shows the following facilities:
. existing and future roads and interchanges by type;
. existing and future high-tension hydro transmission towers/corridors;
. existing and future sidewalks/bicycle paths and trails;
. railway lines;
. existing and future transit routes;
. community mail boxes;
. storm water management ponds, blocks and related facilities;
. existing and future school by type;
. existing and future commercial areas by type;
. existing and future parks by type;
. existing and future areas of different residential densities;
. fencing by type (ie, noise attenuation, chain link, wooden); and
. other facilities specified by the Municipality.
The Owner further agrees that the display and marketing materials are to be
submitted to the Director of Planning Services and the Director of Engineering
Services for approval. Said plans and materials must receive approval prior to
issuance of the first building permit.
(10) The Owner acknowledges and agrees to provide and display in the sales
office/model home/sales pavilion, prior to the issuance of any building permit
Page 41
relating to any lot or block on the Plan a copy of the approved Engineering-
General Plan of the Lands as may be amended from time to time. Furthermore,
the Owner acknowledges and agrees to ensure that any amendments to the
approved Engineering-General Plan of the Lands, as approved by the Director of
Engineering Services are displayed immediately within the sales
office/trailer/pavilion/model homes.
(11) The Owner acknowledges and agrees if at any time the required display plans
and information and/or Engineering-General Plan of the said Lands as approved
by the Director of Planning Services and the Director of Engineering Services is
not displayed in the sales office/model home sales/pavilion, the Municipality may
refuse to issue further building permits for any lots/blocks on said lands subject
to this Agreement until such time the required display plans and information
and/or approved Engineering-General Plan of the said Lands is provided,
(12) The Owner acknowledges and agrees to display the following notice:
"Any enquiries regarding the approved land uses and zoning of this subdivision
or the surrounding area can be directed to the Municipality of Clarington
Planning Services Department, 40 Temperance Street, Bowmanville, Ontario,
L 1 C 3A6 or by calling (905) 623-3379"
"Any enquiries regarding the proposed engineering design, lot grading, utility
coordination or general construction can be directed to the Municipality of
Clarington Engineering Services Department, 40 Temperance Street,
Bowmanville, Ontario, L 1 C 3A6 or by calling (905) 623-3379."
The Municipality will provide this notice for display purposes,
(13) The Owner acknowledges and agrees that the storm water drainage works and
facilities necessary for this development must be constructed in accordance with the
West Side Creek Master Drainage Study, dated 1992, prepared by G.M. Sernas and
Associates and as finally approved by the Director of Engineering Services. This
shall include any temporary works that are deemed necessary by the Director of
Engineering Services,
(14) The Owner acknowledges and agrees that Block 73 on 40M-Plan (Block 95, as
redline revised)shall be transferred free and clear of all encumbrances to the
Municipality in the first phase of development and in a form satisfactory to the
Director of Engineering Services. Furthermore, the Owner shall prepare a Soils
Page 42
Report which indicates that no foreign material is present on site. The block shall
be graded to ensure proper drainage and compatibility with abutting lands and
roads. Not less than 200 mm of topsoil shall be provided on site. Seeding/sodding
to stabilize the site shall be determined by the Director of Engineering Services.
The block shall not be used for the temporary storage of any materials nor shall any
material be imported to or exported from the block with the approval of the
Director of Engineering Services.
(15) The Owner acknowledges and agrees that all internal roads and lots within the
limits of the draft plan must be constructed or graded in a manner which is
compatible with the future profile of Green Road between Baseline Road and the
Canadian Pacific to the satisfaction of the Director of Engineering Services.
(16) The Owner acknowledges and agrees to submit for approval, if warranted by the
Director of Engineering Services, a Traffic Impact Study to demonstrate that full
development of the draft plan of subdivision can occur in advance of the
construction of the grade separation at Green Road without adversely affecting
the existing road network. Specific lots available for building permits in any
single phase will be at the discretion of the Director of Engineering Services.
(17) The acknowledges and accepts responsibility for the cost of providing a suitable
construction access to the draft plan of subdivision in a location to the
satisfaction of the Director of Engineering Services. This access must not
adversely impact the existing subdivision to the east or cause undue
inconvenience for existing residents.
(18) The Owner acknowledges and agrees that development of the entire draft plan
may not be permitted to proceed until such time that the Municipality has
approved the expenditure of funds for the provision of the construction of Green
Road as well as the construction of any other related external works or services
which are deemed necessary by the Director of Engineering Services to service
this plan of subdivision. The number of building permits available at any time
during the development of the subject lands will be subject to the discretion of
the Director of Engineering Services.
(19) The Owner acknowledges and accepts responsibility for 100% of the cost of
constructing sidewalk connections between the draft plan of subdivision and the
existing residential neighbourhood to the east.
Page 43
(20) In addition to the provisions of paragraph 2.7, the Owner acknowledges and
agrees to enter into a written agreement with the Peterborough-Victoria-
Northumberland and Clarington Catholic District School Board which provides for
the acquisition of the school block shown as Block 74 on the 40M-Plan (Block 94
on the draft plan of subdivision), The agreement shall among other matters,
provide for the rough grading of Block 74, the provision of all municipal services
to the site, and where applicable the installation of a 1.8 metre high chain link
fence on the perimeter of Block 74 where it abuts proposed or existing residential
lands and along Streets "A", "F" or Green Road frontage to the satisfaction of the
School Board. The Owner shall provide the School Board a report detailing the
soil bearing capacity and composition of soils within Block 74. Furthermore, the
Owner agrees that Block 74 will be made available in the first phase of
development of said lands. The Owner agrees to provide full access to the Block
to the satisfaction of the Director of Engineering Services and the School Board.
(21) The Owner acknowledges and agrees to retain a professional engineer to
prepare and provide a Preliminary Grading and Drainage Plan that details the
configuration of the on-site storm sewer system (minor system) and the
conveyance of the overland flow (major system), The plan must detail the
proposed storm water drainage scheme that will be implemented prior to the
construction of Green Road as well as the drainage scheme that includes Green
Road as a fully reconstructed and urbanized road allowance.
(22) The Owner acknowledges and accepts responsibility for 100% of the cost for any
traffic control measures that are deemed necessary by the Director of
Engineering Services.
(23) The Owner acknowledges and agrees to implement the recommendations of the
Noise Impact Study prepared by H.G.C, Engineering (Howe, Gastmeir, Chap nick
Limited) dated March 5th, 2003 and addendum letters dated November 19th,
2003, November 28th, 2003, December 9th, 2003, June 29, 2004 and September
8, 2004, which specifies noise attenuation measures for the development.
The Owner acknowledges that prior to the development of Blocks 75 and 76, an
amendment to the Noise Impact Study is to be submitted for approval.
(24) The Owner acknowledges and agrees that in addition to the summary of
recommended outdoor abatement measures, the following clauses will be
attached to all offers of purchase and sale of dwellings for the following
lots/blocks as shown on the 40M-Plan:
Page 44
of Recommended
Outdoor
1 Blocks 69, 1.8 metre high noise . along westerly lot line,
70 fence tying into end units on
each block
2 Lots 45, 55 1.8 metre high noise . along westerly lot line,
fence tying back into each unit
3 Block 76 To be determined at such time Block 76 is developed
4
Block 75
To be determined at such time Block 75 is developed
through Site Plan Approval
i) Lots 45 and 55 and Blocks 69 and 70
"Purchasers/tenants are advised that despite the inclusion of noise control
features in the development and within the building units, some levels due to
increasing road traffic may occasionally interfere with some activities of the
dwelling occupants as the sound levels exceed the noise criteria of the Ministry
of the Environment"
ii) Blocks 74 and 75, Lots 1, 2, 3,4 to 20 inclusive
"Purchasers/tenants are to be advised that Canadian Pacific Railway or its
successors or assigns, have an operating right-of-way within 300 metres from
the land subject hereof and there may be alterations to the right-of-way including
the possibility that the Railway may expand its operations, which expansion may
affect the living environment of the residents notwithstanding the inclusion of any
noise and vibration attenuating measures in the design of the subdivision and
individual units, and that the Railway will not be responsible for complaints or
claims arising from use of its facilities and/or operations.
Hi) Lots 1, 2, 3, 4 to 20 inclusive, 44 and 45, Blocks 69 and 70
"This dwelling unit has been fitted with a forced air heating system and the
ducting etc., was sized to accommodate central air conditioning. Installation of
central air conditioning will allow windows and exterior doors to remain closed,
thereby ensuring that the indoor sound levels are within the noise criteria of the
Municipality and the Ministry of the Environment. (Note: The location and
installation of the outdoor air conditioning device should be done so as to
minimize the noise impacts and comply with criteria of MOE publication NPC-
216, Residential Air Conditioning Devices).
iv) Lots 45 and 55
"Purchasers/tenants are advised that despite the inclusive of noise control
features in the development and within the building units, sound levels due to
increasing road and rail traffic may occasionally interfere with some activities of
the dwelling occupants as the sound levels exceed the noise criteria of the
Municipality and the Ministry of the Environment.
Page 45
(25) The Owner acknowledges and agrees that prior to the issuance of building permits
the Owner shall, through its engineer, provide certification to the Municipality that
the building plans are in accordance with the recommendations of the Noise
Impact Study.
(26) The Owner acknowledges and agrees to implement the recommendations
contained in the approved Noise Impact Study. Without limiting the foregoing,
the Owner shall:
i) construct the appropriate acoustical barrier fencing in the relevant
locations referred to in the Noise Impact Study;
Ii) place on title the appropriate warning clauses for each lot or block in
question in accordance with the approved Noise Impact Study; and
iii) construct the dwelling units in compliance with the building construction
requirements within the approved Noise Impact Study.
(27) In order to ensure acceptable daytime indoor noise levels, the owner
acknowledges and agrees that the various building components must provide an
A.I.F. of 31, depending on the location, and based on the possibility of sound
entering the building through walls, windows and doors. Any exterior wall
construction meeting the Ontario Building Code (OBC) will be acceptable for the
dwellings on the lots adjacent to Baseline Road, as long as the exterior wall area
to room floor area ratio does not exceed 100%.
If the ratio of window area of room floor area is 20%, glazing construction
consisting of two 3 mm panes separated by 13 mm airspace will be sufficient for
the dwelling units as long as the windows to floor area ratio of the bedroom does
not exceed 20%,
Any insulated metal exterior door meeting OBC requirements will be sufficient to
provide noise insulation. If patio doors are to be used in bedrooms, they must be
counted as part of the total window area.
ARTICLE 5 - PUBLIC WORKS
5.1 Municipalitv Works Reouired
The Owner at the Owner's expense shall construct and install the facilities,
services, works, improvements and landscaping more particularly described in Schedule
Page 46
"G" hereto (collectively in this Agreement are called the "Works"). From the date of
issuance of the Authorization to Commence Works until the date of issuance of a
Certificate of Acceptance of them the Owner shall be fully responsible for the construction
and maintenance of the Works including the cost thereof in accordance with the
provisions of this Agreement. After the issuance of a Certificate of Acceptance, the Works
referred to in such Certificate shall be the responsibility of the Municipality.
5.2 Utilities and Services Required
Either prior to or forthwith after the date of this Agreement, the Owner shall enter
into an Agreement(s) with the authorities or companies or company having jurisdiction in
respect of the Utilities and Services referred to in Schedule "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 Enaineer
(1) At all times until this Agreement is released, the Owner shall retain the Owner's
Engineer who shall perform the duties set out in Schedule "I". on the execution of
this Agreement and on each occasion on which a new Owner's Engineer is
retained by the Owner, forthwith after retaining the Owner's Engineer, the Owner
shall give the Director written notice of the name, address and telefax number of
the Owner's Engineer. No partnership, association of persons or corporation shall
be retained as the Owner's Engineer without the prior written approval of the
Director. All notices to be given to the Owner's Engineer are properly given if given
by personal service, by telephonic facsimile communication, or first class prepaid
post addressed to the Owner's Engineer at the address or telefax number provided
to the Director pursuant to this paragraph 5.3. Forthwith after the Director gives
the Owner written notice requiring it to do so, the Owner shall give the Director
written notice advising him whether or not the approved Owner's Engineer
continues to be retained by the Owner.
(2) If at any time following the execution of this Agreement until the day on which a
Certificate(s) of Acceptance has been issued for all of the Works in accordance
with this Agreement, the Owner's Engineer resigns, abandons his office or is
terminated by the Owner, the Owner shall give the Director written notice of that
fact within three (3) days from the date of the resignation, abandonment or
termination, as the case may be. Until such time as the Owner retains and notifies
the Director of the name and address of a new Owner's Engineer who is qualified
to be approved by the Director pursuant to this Agreement and who in fact is
approved by the Director, the Owner hereby authorizes the Director on the
Page 47
Owner's behalf and the Owner's cost to appoint a new Owner's Engineer, provided
that (1) forthwith after appointing a new Owner's Engineer, the Director shall give
the Owner written notice of the name, address and telefax number of the Owner's
Engineer who is so appointed; (2) the Owner shall not act to terminate the new
Owner's Engineer except for cause, and then only with the prior written approval of
the Director; (3) the Director may appropriate from the Performance Guarantee
and the security for the Maintenance Guarantee amounts necessary to pay the
Owner's Engineer's reasonable fees and disbursements; and (4) the Director may
appoint as the new Owner's Engineer any partnership, association of persons or
corporation otherwise qualified under this Agreement who or which previously may
have resigned or abandoned the performance of the services as the Owner's
Engineer under this Agreement or who or which may previously have been
terminated by the Owner, whether or not for cause. The provisions of paragraph
5.3(1) apply when a new Owner's Engineer is appointed by the Director under this
paragraph 5,3(2) with all necessary changes thereto being considered to have
been made to give effect to this paragraph 5.3(2).
5.4 Design of Works
(1) The Owner covenants and agrees that the design of all the Works shall conform
with all applicable legislation and the Municipality's Design Criteria and Standard
Detail Drawings. In the event of any dispute as to such requirements or their
interpretation, the dispute shall be resolved by the Director whose decision shall be
final.
(2) The Owner shall provide and submit to the Director all necessary Engineering
Drawings and obtain all approvals for the construction and installation of the
Works, as required by this Agreement.
(3) Without derogating from the provisions of paragraphs 2.4 and 2.5 and Schedules
"E" and "F" of this Agreement, on the execution of this Agreement, the Owner, at
its expense, shall transfer to the Municipality any land or easements considered
necessary in the opinion of the Director to accommodate the construction,
installation and maintenance of the Works, For greater certainty, the Parties agree
that the provisions of paragraphs 2.4 and 2.7 shall apply in respect of any such
transfers of easements with all necessary changes being considered to have been
made to give effect to the intent of this paragraph 5.4(3). Each transfer of land
shall be in fee simple absolute, and free and clear of all encumbrances and
restrictions.
Page 48
It shall be prepared by the Owner in registerable form and be satisfactory to the
Municipality's Solicitor, At the time of delivery of each transfer of land to the
Municipality, the Owner shall pay to the Municipality in cash or by certified cheque
an amount equal to any tax, fee or charges payable at the time of or in respect of
the registration of such transfer against title to lands to which it applies.
5.5 Engineering Drawings
(1) Prior to the issuance of any Authorization to Commence Works, the Owner shall
obtain the written approval of the Director of the Original copy of all drawings of the
Works (the "Engineering Drawings"). If construction and installation of the Works
has not commenced within two (2) years from the date of approval of the
Engineering Drawings, the Engineering Drawings shall be resubmitted to the
Director for his reconsideration and approval after any revisions required by the
Director have been made to them (the "Reapproved Engineering Drawings"). From
and after the approval by the Director of the Reapproved Engineering Drawings,
they shall be deemed to be the Engineering Drawings for the purpose of this
Agreement, and thereafter all Works shall be constructed and installed in
accordance with them, The Owner hereby irrevocably assigns to the Municipality
without cost to the Municipality the right to use and to reproduce the Engineering
Drawings and all reports that relate in whole or in part to the Works which have
been prepared by or for the Owner in connection with the performance of the
Owner's obligations under this Agreement. The Owner acknowledges that
approval of the Engineering Drawings or reports by the Director shall not relieve
the Owner from its obligation to satisfy all requirements of or made pursuant to this
Agreement.
(2) Prior to the issuance of any Authorization to Commence Works, the Owner shall
provide the Director without cost to the Municipality with the Owner's Engineers (1)
written acknowledgement that the Engineering Drawings and reports referred to in
paragraph 5.5(1) may be used and/or reproduced by the Municipality without cost
or prior approval or permission, (2) written permission for the Municipality's officers,
employees, agents, contractors and suppliers to use the specifications, data,
drawings, records and reports whether completed or in progress of completion in
satisfaction of the Owner's obligations under the provisions of Schedule "I" of this
Agreement without cost or prior approval or permission, and (3) written
undertaking to deliver to the Director the original copy of the Engineering Drawings
forthwith after being given written notice by the Director requiring the Owner's
Engineer to do so, whether or not the Owner's Engineer's fees and disbursements
Page 49
in respect of any of them have been paid, Prior to each occasion on which a new
Owner's Engineer is retained by the Owner and approval of the Director is sought,
the Owner shall provide the Director with a similar written acknowledgement and
written permission of the new Owner's Engineer, provided that if the new Owner's
Engineer is to be retained by the Director on behalf of the Owner pursuant to
paragraph 5.3(2), the Director shall obtain from the prospective Owner's Engineer
the aforesaid written acknowledgement and permission. Forthwith after the
Director gives the Owner's Engineer written notice requiring them or it to do so,
copies of the Engineering Drawings, computer disks, specifications, data,
drawings, records and reports referred to in this paragraph 5.5(2) shall be provided
to the Director without cost to the Municipality,
5.6 Approval of Grading 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 land 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
Engineering and the Director of Planning for their consideration and approval a draft
Staging Plan. The Owner shall not proceed with the construction and installation of any
Works until the Staging Plan has been approved by the Director of Engineering and the
Page 50
Director of Planning after any revisions required by them have been made to the draft
Staging Plan, Thereafter, the Owner shall proceed to construct and install 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 Engineering. The
Staging Plan for the purposes of this Agreement is the Plan contained in Schedule "G-1"
attached hereto provided that for the purposes of this paragraph 5.7 the Staging Plan
may be amended from time to time with the written approval of the Director.
5.8 Approval of Schedule of Works
Prior to the issuance of any Authorization to Commence Work, the Owner shall
obtain the written approval of the Director of a draft schedule (the "Schedule of Works")
which sets out the time at which, and the sequence in which, the Owner proposes to
construct and install each of the Works, Utilities and Services which are required to be
constructed and installed by it in accordance with this Agreement. Notwithstanding the
foregoing provisions of this paragraph 5.8, in cases in which the constructed and
installation of the Works is to be staged in accordance with the Staging Plan, prior to the
date of issuance of the Authorization to Commence Works for each stage provided in the
Staging Plan, the Owner shall obtain the written approval of the Director of a Schedule of
Works for such stage, and thereafter shall proceed to construct and install the Works,
Utilities and Services in such stage in compliance with the approved Schedule of Works,
and any amendment(s) thereto which may be approved by the Director.
5.9 Approval of Works Cost Estimates and Stage Cost Estimates
Prior to the issuance of any Authorization to Commence Works, the estimated cost
of construction and installation of the Works, (the 'Works Cost Estimates"), shall be
submitted by the Owner to the Director for his consideration and if appropriate his
approval. After approval, the Works Cost Estimate shall be entered for the Owner and the
Municipality by the Director in Schedule "J" hereto whereupon it shall replace the content
of Schedule "J" for all of the purposes of this Agreement. If a Staging Plan has been
approved pursuant to paragraph 5.7, prior to the issuance of an Authorization to
Commence Works in the stage the Owner agrees that the estimated costs of construction
and installation of the Works for each stage in question, (the "Stage Cost Estimates"),
shall be submitted by the Owner to the Director for his consideration and if appropriate his
approval. After approval the Stage Cost Estimates shall be entered for the Owner and
the Municipality by the Director in Schedule "J".
Page 51
5.10 Requirements for Authorization to Commence Works
The Owner shall not commence the construction or installation of any of the Works
without the written permission of the Municipality, (the "Authorization to Commence
Works").The Owner shall only commence the construction and installation of those Works
permitted by the Authorization to Commence Works. In addition to satisfying all the other
requirements of this Agreement in respect thereof, an Authorization to Commence Works
shall be issued for any of the Works for which the Authorization is sought until the
following conditions have been satisfied:
(a) the final Plan of Subdivision of ,the Lands has been approved by the
Municipality pursuant to the Planning Act;
(b) the final Plan of Subdivision of the Lands has been registered against the
title to the Lands;
(c) the Owner has delivered to the Municipality (1) a copy(s) of this Agreement
as registered against the title to the Lands;(2) a copy(s) of the registered
Plan of Subdivision of the Lands; and (3) a copy(s) of the other
Agreement(s) referred to in paragraph 2.3 of this Agreement;
(d) the Owner has paid to the Municipality any monies required by paragraphs
3.1, 3.2, 3.3 and 3.4 of this Agreement;
(e) the Owner has delivered the transfers of easements to the Municipality in
accordance with paragraph 2.4 of this Agreement;
(f) the Owner has delivered to the Municipality transfers of the lands and paid
the required cash in accordance with paragraphs 2.5. 2.6 and 4.12(4) of this
Agreement, and such transfers have been registered against the title to the
appropriate portions of the Lands;
(g) the Owner has delivered to the Municipality letters signed on behalf of the
authority authorities or companies having jurisdiction with respect to the
Utilities and Services that are referred to in Schedule "H" that satisfactory
Agreement(s) have been entered into by the Owner with them for the
design, construction, installation and services of the Utilities and Services
as is required by paragraph 5.2 of this Agreement:
Page 52
(h) the Owner has retained the Owner's Engineer in compliance with paragraph
5.3(1), has provided the name, telefax number and address of the Owner's
Engineer to the Director in writing, has provided the Director with the written
acknowledgement and permission of the Owner's Engineer as required by
paragraph 5.5(2), and has provided the Director with the Owner's
Engineer's written undertaking that they or it will comply with the provisions
of Schedule "I" of this Agreement;
(i) the Owner has been given the written approval of the Director of the
Engineering Drawings as required by paragraph 5.5 of this Agreement;
U) the Owner has been given the written approvals of the Director of Planning
Services and Director of Engineering Services of the Tree Preservation
Plan as required by paragraph 4.1 of this Agreement.
(k) the Owner has received written approvals of the Director of Planning
Services and the Director of Engineering Services of the Landscape Plan
as required by paragraph 4.2 of this Agreement;
(I) the Owner has received the written approval of the Director of the Grading
and Drainage Plan required by paragraph 5.6 of this Agreement;
(m) the Owner has received the written approvals of the Director of Engineering
Services and the Director of Planning Services of the Staging Plan as
provided in paragraph 5.7 of this Agreement;
(n) the Owner has received the written approval of the Director of the Schedule
of Works as required by paragraph 5.8 of this Agreement;
(0) the Owner has received the written approval of the Director to the Works
Cost Estimates or the Stage Cost" Estimates as required by paragraph 5.9
of this Agreement;
(p) the Owner has deposited with the Municipality a Performance Guarantee
required by paragraph 3.6 and other provisions of this Agreement and has
made all cash payments to and deposited all letters of credit with the
Municipality as required by this Agreement;
Page 53
(q) the Owner has deposited with the Municipality's Director of Finance all
policies of insurance or proof thereof required by and in accordance with
paragraph 3.9 and Schedule "K" of this Agreement;
(r) the Owner has paid all costs required to be paid to the Municipality by
paragraph 3.14 of this Agreement on or prior to the date of issuance of the
Authorization to Commence Works;
(s) the Owner has deposited with the Director written approval of all relevant
approving agencies including the Ministry of the Environment, the Ministry
of Natural Resources, the Region and the Central Lake Ontario
Conservation Authority with respect to the Works;
(t) the Owner has deposited with the Director its written undertaking to provide
the Director without cost with a copy of the contract documents, names and
addresses of all contractors, sub-contractors and suppliers of services and
materials, and copies of all sub-contracts and supply contracts relating to
the construction and installation of the Works for which the application for
Authorization to Commence Works is made, forthwith after written notice is
given by the Director to the Owner to provide any or all of the aforesaid
material; and
(u) the Owner has been given the written approvals of the Director of Planning
Services, Director of Engineering Services and Director of Community
Services as required by paragraphA.12 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
5.10(1)(b), provided that the requirements of clauses 5.10(1)(d), (g), (h), (i), 0), (k),
(I), (m), (n), (0), (p), (q), (r), (s) and (t) have been satisfied by the Owner and the
lands and easements considered by the Director to be necessary to accommodate
the Works and all components thereof have been transferred to the Municipality.
In such a case, however, a Certificate of Completion of the Works, shall not be
issued by the Director until a Plan of Subdivision of the Lands has been registered
against the title to the Lands and all the other requirements of this Agreement
respecting the issuance of a Certificate of Completion have been satisfied.
Notwithstanding the approval of the Director under this paragraph 5.10(2), the
Owner agrees with the Municipality that the construction or installation of any of
Page 54
the Works pursuant to paragraph 5.10(1), if undertaken, shall be undertaken at the
sole risk of the Owner and the Owner hereby waives any right that he might
otherwise have as a result of its construction and installation of any of the Works.
5.11 Requirements for Commencement of Subsequent Staqes of Works
If the Director has approved a Staging Plan for the Lands, the Owner shall require
an Authorization to Commence Works for each stage defined in the Staging Plan.
5.12 Inspection and Stop Work
The Owner shall ensure that every contract that may be made by the Owner with
any contractor to construct or install any of the Works shall provide that employees or
representatives of the Municipality may, at any time, inspect the work of such contractor
and shall require the contractor to comply with stop work orders given by the Director
pursuant to this paragraph 5,12. The Director may give the Owner a written order to stop
the construction or installation of any of the Works that is being undertaken by giving
written notice either to the Owner or to the Owner's Engineer to that effect if in the
Director's opinion either (1) the Works are not being undertaken such that a completed
construction and installation of all the Works satisfactory to the Municipality in accordance
with this Agreement will result, or (2) the Performance Guarantee and the security for the
Maintenance Guarantee required to be provided pursuant to this Agreement in respect of
the Works has not been deposited or is not maintained in good standing. The Owner
shall comply with the stop work order forthwith after it is given by the Director in
accordance with this paragraph 5.12 by requiring the Owner's contractor and sub-
contractors who are constructing and installing the Works or components thereof in
question and are referenced in the order to comply with it forthwith. A stop work order
may be given to the Owner by giving to its Owner's Engineer by personal service on the
Owner's Engineer or any representative of the Owner's Engineer, by prepaid first class
post addressed to the Owner's Engineer, or by telefax to the Owner's Engineer at the
address and telefax number referred to in paragraph 5.3(1) or 5.3(2), whichever is
applicable,
5.13 Construction in Accordance with Enqineerinq Drawin~s
(1) The Works shall be constructed and installed in accordance with the Engineering
Drawings as approved by the Director. No deviation from the Engineering
Drawings is permitted unless such deviation is authorized in writing by the Director
before it is undertaken, All construction and installation of the Works, shall be
undertaken and carried out by the Owner or by the Owner's contractor, as the case
Page 55
may be, in accordance with the regulations for construction set out in Schedule "L".
(2) The Owner shall keep the Municipality road surfaces and ditches clean of dirt, mud
and refuse until a Certificate of Acceptance of all Works contemplated in this
Agreement has been issued as provided for by this Agreement. If the Owner has
not performed its obligations under this paragraph 5.13(2), the Municipality may do
so and deduct the reasonable cost thereof from the Performance Guarantee. The
Owner shall restore the Performance Guarantee to the amount otherwise required
by this Agreement, forthwith after the Director gives the Owner written notice of the
amount of the deduction in question.
5.14 Sequence of Construction of Works
Following the issuance of an Authorization to Commence Works, the Owner shall
proceed in good faith to construct and install all of the Works referred to in the
Authorization to Commence Works continuously and in accordance with the timing and
sequence therefore set out in the Schedule of Works.
5.15 Completion Time for Construction of Works
Within two (2) years of the date of the issuance of an Authorization to Commence
Works, the Owner shall complete the construction and installation of all of the Works
authorized in such Authorization to Commence Works with the exception of the curbs,
sidewalks, final coat of asphalt, final lot grading, driveway approaches, sodding and tree
planting which may be completed later if done so in accordance with the provisions of the
Schedule of Works.
5.16 Additional Work
Until the conclusion of Maintenance Guarantee Period referable thereto, if in the
opinion of the Director, any incidental additional work is required to provide for the
adequate operation, functioning and maintenance of any of the Works, the Owner, at its
cost, shall construct and install such additional facilities and perform such additional work
as the Director may request from time to time by written notice given to the Owner.
5.17 Incomplete or Faultv Works and Liens
(1) Without derogating from the other provisions of this Agreement, if, in the opinion of
the Director, (1) the Owner is not constructing and installing or causing to be
constructed or installed any of the Works required by this Agreement so that it or
Page 56
they will be completed within the time specified for such completion in the
Schedule of Works, or (2) the Works or any component(s) thereof are being
improperly constructed or installed, or (3) the Owner neglects or abandons the said
Works or any part of them before completion, or (4) unreasonable delay occurs in
the construction or installation of the Works, or (5) for any other reason the Works
are not being constructed or installed properly and promptly and in full compliance
with the provisions of this Agreement, or (6) the Owner neglects or refuses to
reconstruct or reinstall any of the Works or component(s) thereof which may be
rejected by the Director as being defective, deficient, or unsuitable, or (7) the
Owner otherwise defaults in performance of this Agreement, the Director may give
the Owner notice in writing of his opinion respecting any such matter. Following
the later to occur of the expiry of ten (10) business days, excluding Saturdays and
Sundays and statutory holidays following the giving of such notice plus the expiry
of any additional period as may be specified in the notice given to the Owner by
the Director, the Municipality, at the cost and expense of the Owner, may engage
a contractor, supplier of services or materials and such workmen, and purchase
such services, supplies and/or services as in the opinion of the Director are
required for the completion of the construction and installation of the Works and all
components thereof and the performance of all covenants of the Owner relating to
the Works as provided by this Agreement. In cases of an emergency or urgency,
or in order to preserve the integrity of the Works or any component thereof as
determined by the Director in his absolute discretion, any deficiency(s) or defect(s)
in the Works, and any failure to complete the Works and all components thereof in
accordance with this Agreement may be corrected, remedied or completed by the
Municipality its contractors, suppliers and employees at the cost of the Owner
without prior notice to the Owner, provided that forthwith after the Municipality so
acts, the Director shall give written notice to the Owner of his determination as
aforesaid, describing the action taken by the Director, and the cost of correcting or
remedying the deficiency or default in question or the cost of completing the Works
and the components thereof, as the case may be, For the purposes of this
paragraph 5.17(1) the cost of any work which the Municipality undertakes under
this paragraph 5.17(1) shall be determined by the Director in his absolute
discretion. It is understood and agreed by the Parties that the costs for which the
Owner is responsible under this paragraph 5.17(1) shall include a management
fee payable to the Municipality either of thirty (30%) percent of the contractor's
charges to the Municipality (including any charges for overhead and profit) or, if
such work is undertaken by the Municipality, thirty (30%) percent of all costs
incurred by the Municipality to correct or remedy the deficiencies or defect or to
complete the Works and all components thereof as the case may be. The Owner
shall pay the Municipality an amount equal to the cost of all Works and
Page 57
components thereof, and the cost of correcting or remedying all deficiencies and
defects referred to in this paragraph 5.H(1) which have been incurred by the
Municipality or are estimated in the Director's absolute discretion to be likely to be
incurred by the Municipality forthwith after the Director gives the Owner written
demand for payment of such cost. If the amount paid is based on the Director's
estimate as aforesaid, forthwith after actual costs are more than the estimated
costs, the Owner shall forthwith pay the Municipality an amount equal to the
difference between them. If the actual costs are less than the estimated costs, the
Municipality shall forthwith refund the difference between them to the Owner.
(2) In the event that (1) a claim for a lien in respect of the Works or any component
thereof is registered against the title to any land vested or which should have been
vested in the Municipality or is filed with the Municipality, or (2) the Municipality
receives written notice of a claim of an alleged beneficiary of a statutory trust under
the Construction Lien Act, such registration, filing or notice shall constitute a
default in performance by the Owner of this Agreement. In any such case, the
Director may notify the Owner in writing of such default. If the Owner fails to
discharge the lien or claim as the case may be within ten (10) business days,
excluding Saturdays, Sundays and statutory holidays, after the giving of such
notice plus any further period of time as may be specified in the notice, then the
Municipality in its absolute discretion either may (1) 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, (2) discharge the claim in full by paying the
amount claimed or in part by paying a portion thereof or (3) draw the full amount of
the claim in cash from a letter of credit deposited with the Municipality as the
security for the Performance Guarantee and hold the cash in a deposit account of
the Municipality as the security for the Performance Guarantee in respect of the
claim in question. The Municipality may draw on and appropriate the whole or any
portion(s) of the Performance Guarantee and the Security for the Maintenance
Guarantee for the purpose of making payment under this paragraph 5.17(2). The
Owner shall indemnify the Municipality against the costs and expense incurred by
the Municipality in making payment pursuant to this paragraph 5.17(2) forthwith
after the Director gives the Owner written notice requiring him to do so. In the
event that the Municipality draws on and appropriates any portion of the
Performance Guarantee or the Security for the Maintenance Guarantee for any of
the aforesaid purposes, forthwith after the Director gives written notice to the
Owner requiring it to do so, the Owner shall reinstate the Performance Guarantee
and/or the Security for the Maintenance Guarantee, as the case may be, to the full
amount(s) required under the provisions of this Agreement
Page 58
5.18 Acknowledgement Respectinq Emergency etc. Repairs
The Owner acknowledges that if in cases of emergency or urgency or in order to
protect the integrity of the Works or any component thereof, the Director acts to correct,
remedy or repair any deficiency(s) or defect(s) in the Works, neither an entry on the
Lands or any portion of them nor any such action by the Director or any person
authorized to undertake the same by the Director shall be deemed to be an acceptance
of any of the Works by the Municipality, nor an assumption by the Municipality of any
responsibility or liability in connection therewith, or a release by the Municipality of the
Owner from any of its obligations under this Agreement.
5.19 Damage to Existing Services
Forthwith after written demand therefore is given by the Director to the Owner, the
Owner shall pay to or to the direction of the Municipality, the cost of repairing any damage
to any property or services of the Municipality, the Region, or any utility authority or
company or (the "Damaged Services") including without limiting the generality of the
foregoing, any road(s), water, electrical, gas, telephone, cable television and sewer
systems, and the cost of relocating any Damaged Services, caused by or resulting from
the development of anyone (1) or more portions of the Lands, or the construction or
installation of any of the works provided that all such repairs and or relocation(s) are
completed to the satisfaction of the Director, the Region and the relevant utility authority
or company which owns or is responsible for the Works, property or services in question.
In addition, the Owner agrees with the Municipality, at the Owner's cost, to relocate any of
the Works constructed or installed pursuant to this Agreement which are located in
driveways or so close thereto as in the opinion of the Director will interfere with the use of
the driveway in question, forthwith after being given written notice by the Director
requiring the Owner to undertake such relocation.
5.20 Damage to Neighbouring Wells (Rural Applications Only)
(1) Prior to the commencement of and during the period of construction or installation
of the Works, the Owner shall cause to be carried out, at its expense, the ground
water monitoring program which has been approved by the Director pursuant to
this paragraph 5.20(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
is first approved by the Director. The Draft Monitoring Program shall be submitted
to the Director for his consideration and approval. After the Monitoring Program
Page 59
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
addresses of the report of the Hydrogeologist's analyses and findings to the
Municipality, 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 modification(s) 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, as its cost, shall cause the
Hydrogeologist 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 shall
cause the Hydrogeologist to make available to the Director, at no cost to the
Municipality, forthwith after a written' request therefore is given to the
Hydrogeologist by the Director, a copy of all data collected and all analyses made
in connection with or implementation of the Monitoring Program. Forthwith
following the completion of the Monitoring Program, the Owner shall cause the
Hydrogeologist to provide to the Director, at no cost to the Municipality, a copy of
all data collected and all analyses and reports made by the Hydrogeologist in
connection with or in implementation of the Monitoring Program which previously
have not been provided to the Director pursuant to this paragraph 5.20(2), together
with a certificate of the Hydrogeologist, in a form satisfactory to the Municipality
Solicitor that all the data, analyses and reports required to be provided to the
Director by this paragraph 5.20(2), have been provided to him. In addition to the
foregoing, the Owner shall 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
Municipality, and to deliver the same to the Director, at no cost to the Municipality,
forthwith after each of them is completed.
(3) If an Appropriate Authority determines that the well or private water supply of any
person(s) 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
(1) month of completion of dewatering), in the opinion of an Appropriate
Authority. the Owner shall make available to the affected party(s), a
temporary supply of water at no cost to the affected party(s);
Page 60
or -
(b) where in the opinion of an Appropriate Authority the interference to a well or
private water supply is of a long term duration, at the option of the Owner
and at its cost, the Owner either (1) with the Region's approval shall
connect the affected party's property to the Region's water supply system,
or (2) the Owner shall provide a new well or private water system for such
affected party(s) 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(s) prior to the interference, as may be
required by the Appropriate Authority by written notice given to the Owner.
(4) Without derogating from the other provisions of this paragraph 5.20, 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(s) outside the Lands is interfered with or
dewatered as a result of the construction or installation of the Works, forthwith after
such notice is given, the Owner shall 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 Municipality Council, after
considering a report thereon from the Director or an Appropriate Authority 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 its obligations under paragraph 5.20(3), as the case
may be.
5.21 Use of Works by Municipality
The Owner acknowledges and agrees that any of the Works my be used by the
Municipality and such other person(s) who is (are) authorized by the Municipality for any
of the purposes for which the Works are designed, without interference by the Owner,
and without the payment of any fee or compensation to the Owner, and for such
purposes the Municipality and other person(s) authorized by the Municipality may enter
upon the portion(s) of the Lands on which the Works are located.
5.22 Maintenance of Roads after Completion
(1) In addition to any other requirement of this Agreement that the Owner maintain the
Works, if any building(s) on the Land is occupied, the Owner, at the Owner's cost,
shall maintain each road(s), which is required to be constructed and provides
access to such building(s), until a Certificate of Acceptance has been issued for
such road(s), and without limiting the generality of the foregoing, the Owner shall:
Page 61
(a) maintain the road(s) at all times in a well drained, dust and mud free
condition, suitable for ordinary vehicular traffic, to the approval of the
Director;
(b) during the course of construction and installation of the Works, Utilities and
Services pursuant to this Agreement, provide and maintain safe and
adequate access to all occupied buildings; and
(c) erect a sign to the satisfaction of the Director to indicate that the road(s) are
"unassumed road(s)" which the Municipality is not required by law to repair
and maintain.
(2) The Municipality agrees to snowplough and sand all paved road(s) shown on the
registered Plan of Subdivision of the Lands, for and on behalf of the Owner until
the Certificate of Completion of the Final works has been issued, provided that
until the date of issuance of the aforesaid Certificate of Completion, the Owner
shall pay to the Municipality one hundred (100%) percent of the costs of
snowploughing and sanding such road(s), as determined by the Director, from time
to time, and forthwith after being given written notice of such costs by the Director.
(3) The Owner acknowledges and agrees that the undertaking or provision of repairs
or maintenance by the Municipality under paragraphs 5.18, 5.19 or 5.22(2) in
respect of road(s), is not intended nor shall it in any way constitute or be taken to
constitute the approval or assumption by the Municipality of the road(s) in
question. The road(s) shall not be deemed to have been assumed until both a
Certificate of Acceptance has been issued, and a By-law has been passed by
Municipality Council dedicating the road(s) as public highway(s) and assuming it
for the purpose of liability to repair and maintain it as provided by the Municipal
Act, and such By-law has been registered in the Land Registry Office.
5.23 Requirements for Certificate of Completion
The Owner acknowledges and agrees that the construction and installation of any
of the Works authorized in an Authorization to Commence Works shall not be deemed to
be completed for the purposes of this Agreement until the Director has provided the
Owner with written certificate that such is the case (the "Certificate of Completion"). In
addition to satisfying the other requirements of this Agreement respecting its issuance, a
Certificate of Completion shall not be issued until such of the WorKs authorized by the
Authorization to Commence Works for which a Certificate of Completion is required, have
Page 62
been inspected by the Director, and he is satisfied such Works have been constructed
and installed in accordance with the Engineering Drawings and has received all
certificates and confirmations from the Owner's Engineer as provided for in this
Agreement.
5.24 Requirements for Certificate of Acceptance
The Owner acknowledges and agrees that none of the Works covered by a
Certificate of Completion shall be accepted, nor deemed to be accepted for the purpose
of this Agreement until the Director has provided the Owner with written certificate that the
Works in question have been accepted ("the Certificate of Acceptance"). If the
requirements of this Agreement respecting the issuance of a Certificate of Acceptance
any of the Works, except the Final Works, have been satisfied, and without limiting the
generality of the foregoing, if the Director is of the opinion that the Works in question have
been maintained in compliance with paragraph 3.10 and all deficiencies and defects in
such Works have been remedied and corrected by the Owner on behalf of the
Municipality, the Director shall provide the Owner with a Certificate of Acceptance of the
relevant Works. If the requirements of this Agreement respecting the issuance of a
Certificate of Acceptance of the Final Works have been satisfied, and without limiting the
generality of the foregoing, if the Director is of the opinion that the Works in question have
been maintained in accordance with paragraph 3.10 and all deficiencies and defects in
such Works have been remedied and corrected by the Owner, and the Director reports
his opinion that such Works should be accepted by the Municipality for the Municipal
Council, Council may approve the report of the Director. Following Council's approval of
this report as aforesaid the Director may provide the Owner with a Certificate of
Acceptance of the Final Works.
5.25 Ownership of Works bv Municipality
For greater certainty, the Owner acknowledges and agrees that the Municipality is
the Owner of all of the Works covered by a Certificate of Acceptance. The Owner shall
have no right or claim thereto, other than as an owner of land abutting a highway in which
such Works are installed.
5.26 Requirements for Certificate of Release
Forthwith after the Owner complies with subparagraphs (a), (b) and (c) of this
paragraph 5.26, and the Works located thereon have been constructed, installed and
accepted by the issuance of a Certificate of Acceptance, the Municipality shall provide the
Owner with a written release (the "Certificate of Release") respecting the Lands, for which
Page 63
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 shall not be issued until:
(a) a Certificate(s) of Acceptance has been issued for all the Works;
(b) a registered Ontario Land Surveyor, acceptable to the Director and retained
by the Owner at the Owner's expense has provided the Municipality with
written confirmation that at a date not earlier than the date of issuance of
the Certificate of Completion of the Final Works, he has found, placed or
replaced all standard iron bars shown on the registered final Plan of
Subdivision of the lands and has found, placed or replaced all survey
monuments at all block corners, the end of all curves, other than comer
roundings, and all points of change in direction or road(s) on such Plan; and
(c) Municipal Council has by resolution, acknowledged that the Owner has
satisfied all of the provisions of this Agreement.
From the date of its issuance, a Certificate of Release shall operate as a discharge of the
Owner in respect of the Lands or the portion thereof which are described therein of the
obligations of the Owner under this Agreement with the exception of (1) the Owner's
obligation respecting drainage as provided in this Agreement; and (2) the Owner's
covenant to comply with the requirements of this Agreement in respect of applications for
building permits for dwellings on the Lands.
5.27 Not Used
5.28 Cost of Works Referred to in Schedule "G"
The Owner acknowledges and agrees that it will pay the total cost of the Works
referred to in Schedule "G" hereto. The Owner will not seek any credit or rebate for or of
any part of the total cost of the Works by reason of any of them being oversized to
accommodate drainage or traffic from lands outside the limits of the Lands, whether from
or in respect of a development charge imposed by the Development Charge By-law, or in
any other manner, or for any other reason unless in the case of storm water drainage the
Owner isa party to a Front-Ending Agreement with the Municipality made under the
Deve/opment Charges Act, 1997, with respect to the oversizing of a storm drainage Work
to accommodate drainage from lands other than the Lands if such Agreement provides
for benefiting owners other than the Owner to make front-ending payments in respect of
Page 64
anyone or more portions of either or both of the Storm Sewer System or the Stormwater
Management System.
ARTICLE 6 - COMPLIANCE WITH REGULATIONS
In exercising its rights and in performing its covenants under this Agreement, the Owner
shall comply with all regulations and laws of general application and all by-laws of the
Municipality and the Region. Without limiting the generality of the foregoing, at all times
the Owner shall comply and cause all contractors, sub-contractors and suppliers of
materials and services in connection with the construction, installation and maintenance
of the Works to comply with the provisions of the Occupational Health and Safety Act,
and the Workers' Compensation Act.
ARTICLE 7 - RESPONSIBILITY OF SUBSEQUENT OWNERS
After the issuance of the Certificate of Release, the Owner, its successors and
assigns as the owner of each lot(s) or block(s) on the final Plan of Subdivision registered
against the title to the Lands shall have the sole responsibility for the following which shall
be performed or undertaken at its cost:
(a) the provision and maintenance of adequate drainage of surface waters from such
lot(s) or block(s) in accordance with the approved Grading and Drainage Plan
referred to in paragraph 5.6 herein of this Agreement;
(b) compliance with the provisions of paragraph 4.6 "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(s) or block(s) in question; and
(c) the maintenance of fencing required by Schedule "G" and paragraph 4.2.
ARTICLE 8 - TIME OF ESSENCE
Time is of the essence of this Agreement.
ARTICLE 9 - AUTHORITY TO MAKE AGREEMENT
The Owner acknowledges and agrees that the Municipality has authority to enter
into this Agreement, that every provision hereof is authorized by the law and is fully
Page 65
enforceable by the Parties, and that this Agreement is made by the Municipality in
reliance on the acknowledgement and agreement of the owner as aforesaid.
ARTICLE 10 - AUTHORITY TO UPDATE AND COMPLETE AGREEMENT INCLUDING
SCHEDULES
On behalf of the Parties to this Agreement, the Director of Planning Services is
hereby authorized from time to time to complete registration particulars of any instruments
referred to either in the text of this Agreement or in the Schedules hereto, and to update
and complete anyone or more of the Schedules as further information becomes available
to the Municipality, provided that forthwith after each occasion on which he takes any of
the aforesaid actions, the Director of Planning Services gives written notice thereof to
each of the Parties, with the exception of the Municipality,
Page 66
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 }
}
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DELIVERED
In the presence of:
----
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"
THE CORPORATION OF THE
MUNICIPALITY OF CLARINGTON
~
PRINGS WEST LTD.
Title
Name:
(PLEASE PRINT)
Title
Geor lb. a.l _
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Jclse Ibanetz
ur nez
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Bayly Hold' gs Ltd.
ROYAL BANK OF CANADA
AJgC'~4_ ~~___-
Name: W, 8. T~IER - '
(PLEASE PRI ) SENIOR MANA(',m
Title
K, GUY WHITFIELD
SenIor A<:count Manager
Page 67
SCHEDULE "A"
THIS SCHEDULE IS SCHEDULE "A" to the Agreement which has been
authorized and approved by By-law No, 2004-001 of The Corporation of the Municipality
of Clarington, enacted and passed the 19th day of January, 2004,
LEGAL DESCRIPTION OF LANDS
ALL AND SINGULAR that certain parcel of land and premises, situated, lying and being
in the Municipality of Clarington, formerly the Township of Darlington, Regional
Municipality of Durham and being comprised of Part of Lot 16, Concession 1 in the
Municipality of Clarington, Regional Municipality of Durham, shown as Part 1 of Plan
40R-14126 and Part 1 of Plan 40R-14126 as deposited in the Land Registry Office for
the Land Registry Division of Durham (No. 40), the Land Registry Office.
Page 68
SCHEDULE "B"
THIS SCHEDULE IS SCHEDULE "B" to the Agreement which has been
authorized and approved by By-law No. 2004-001 of The Corporation of the Municipality
of Clarington, enacted and passed the 19th day of January, 2004.
PLAN OF SUBDIVISION
(Insert reduction of Plan 18T-96014)
A copy of the Plan of Subdivision as draft approved is on file with the Municipality
of Clarington and can be viewed at 40 Temperance Street, Bowmanville in the offices of
the Planning Services Department
Page 69
Schedule "8"
-2 -
(Insert reduction of the 40M Plan)
A copy of the 40M Plan, as approved for registration is on file with the
Municipality of Clarington and can be viewed at 40 Temperance Street, Bowmanville in
the offices of the Planning Services Department.
Page 70
SCHEDULE "C"
THIS SCHEDULE IS SCHEDULE "c" to the Agreement which has been
authorized and approved by By-law No. 2004-001 of The Corporation of the Municipality
of Clarington, enacted and passed the 19th day of January, 2004,
CHARGES AGAINST LANDS
(1 )
(2)
(3)
Municipal Taxes
Local Improvement Charges
Drainage Charges
to be paid upon execution of Agreement
to be paid upon execution of Agreement
to be paid upon execution of Agreement
Page 71
SCHEDULE "0"
THIS SCHEDULE IS SCHEDULE "0" to the Agreement which has been
authorized and approved by By-law No. 2004-001 of The Corporation of the Municipality
of Clarington, enacted and passed the 19th day of January, 2004.
SCHEDULE OF PAYMENTS OF DEVELOPMENT CHARGES
Subject to paragraph 3.4 (1) of this Agreement the Owner shall make the
following payments on account of Development Charges to the Municipality in respect
of the development of the Lands consisting of (66) single family dwellings; (0) semi-
detached dwellings; (32) townhouse dwellings (collectively referred to as the ''Total
Dwellings") on the occasions set out below. Subject to the adjustments referred to in
paragraph 3.4(1) of this Agreement the aggregate amount so payable is $723,534.00
dollars payable as follows:
I. PHASE 1 OF THE DEVELOPMENT OF THE LANDS
Phase 1 of the Development of the Lands consists of (14) single family
dwellings; (50) semi-detached dwellings and (45) townhouse dwellings. Subject
to the adjustment referred to in paragraph 3.4(1) of this Agreement the
aggregate amount payable is $719,118.00 dollars payable as follows:
(a) The Owner shall prior to obtaining each building permit for a building or the
Lands pay with the Building Permit application for the permit an amount equal to
the amount of the Development Charge imposed by the Development Charge
By-law for the individual dwelling unit type for which a building permit is sought.
Provided that if a credit is available under a the Development Charges Act, the
amount of the credit, when available, may be deducted from anyone or more of
the above payments or amount of Development Charges if permitted by the Act.
II. PHASE SUBSEQUENT TO PHASE 1 OF THE DEVELOPMENT OF THE
LANDS
To be completed prior to registration of each 40M-Plan after Phase 1 of the
Development of the Lands.
III. BLOCK 93 - MEDIUM DENSITY RESIDENTIAL DEVELOPMENT
Development charges are to be paid through the provisions of Site Plan approval.
Page 72
SCHEDULE "E"
THIS SCHEDULE IS SCHEDULE "E" to the Agreement which has been
authorized and approved by By-law No. 2004-001 of The Corporation of the Municipality
of Clarington, enacted and passed the 19th day of January, 2004.
(1) On the execution of this Agreement, the Owner shall deliver to the Municipality
transfers of the following easements:
. Parts 1, 2, 3, 4, 5 and 6
on Plan 40R-
. Parts 9, 10, 11 and 12
on Plan 40R-
Storm Sewer Easement (Lots 25, 26, 32,
33, 35 and 36)
Storm Sewer Easement (Blocks 70n1
and 71n2)
(2) Easements for the rear yard catch-basins and storm sewers shall be perpetual in
duration.
(3) Without derogating from the other provisions of this Agreement, the Owner shall
transfer or cause to be transferred to the Municipality easements to accommodate
any work provided for in the approved Engineering Drawings or the reapproved
Engineering Drawings in lands located beyond the limits of the Lands as may be
required by and to the satisfaction of the Director by notice given in writing to the
Owner. The Director shall determine the duration and terms of any such
easements. The transfers shall be prepared by the Owner at its cost, shall be free
and clear of all encumbrances and restrictions, shall contain other provisions
satisfactory to the Municipality's solicitor, shall be made for a nominal
consideration, and shall be in registerable form. Paragraphs 2.4 and 2.6 shall
apply in respect of transfers with all necessary changes to them being considered
to have been made to give effect to the intent of this paragraph (3).
(4) The Owner shall transfer to the Municipality any turning circle(s) required by the
conditions of approval of the draft Plan of Subdivision in accordance with the
Municipality's Design Criteria and Standard Drawings and shall construct and
maintain such tuming circles in accordance with the Municipality's Design Criteria
and Standard Drawings. Such temporary turning circles shall be held by the
'Municipality until the extension of the street in question at which time the block
shall be conveyed without charge to the Owners of the abutting lots, where
applicable.
(5) Temporary turning circle easements shall be transferred to the Owner of the
abutting lots at such time as the temporary tuming circle(s) is removed and the
roadway extended through for a nominal consideration.
Page 73
Schedule "E"
- 2 -
(6) The Owner shall transfer or cause to be transferred to the Municipality any
easements for the disposal of storm water from the said Lands which are required
by the Director which are external to the said Lands at no expense to the
Municipality, The easements shall be transferred to the Municipality forthwith after
the Director gives the Owner written notice of his requirements and the reasons
therefore. Paragraphs 2,4 and 2.5 of this Agreement shall apply with all necessary
changes to them being considered to have been made to give effect to the extent
of this provision.
Page 74
SCHEDULE "F"
THIS SCHEDULE IS SCHEDULE "F" to the Agreement which has been
authorized and approved by By-law No. 2004-001 of The Corporation of the Municipality
of Clarington, enacted and passed the 19th dayof January, 2004.
LANDS TO BE TRANSFERRED TO MUNICIPALITY AND / OR CASH TO BE PAID
IN LIEU THEREOF
(1) Dedication of Lands
The Owner shall deliver to the Municipality in a form satisfactory to the
Municipality, transfers in fee simple absolute the following land shown on the 40M
Plan:
. Blocks 78, 79, 80
. Blocks 77
0.3 Metre Reserves
. Block 73
Road Widening
Park
(2) Cash in Lieu of Lands for Park or Other Public Recreational Purposes
- NOT USED -
Page 75
SCHEDULE "G"
THIS SCHEDULE IS SCHEDULE "G" to the Agreement which has been
authorized and approved by By-law No, 2004-001 of The Corporation of the Municipality
of Clarington, enacted and passed the 19'" day of January, 2004.
WORKS REQUIRED
The Owner shall construct, install, supervise and maintain the following Works,
including all connections, alterations, adjustments and transitions required to suit existing
systems or lands in accordance with the Municipality's Design Criteria and Standard
Drawings, and the Engineering Drawings, all to the approval of the Director:
(1 )(a) A storm sewer system for the removal of upstream storm water and storm water
originating within the said Lands, including storm sewer mains and connections,
manholes, service connections, catch-basins and rear yard catch-basins and
leads, open channels, storm outfalls and structures and any other appurtenances
and oversizing as may be required (the "Storm Sewer System").
(b) A stormwater management system consistent with the "Master Drainage Plan",
complete with overland flow routes, detention and retention facilities, quality control
devices, outlets, erosion and sedimentation control measures and any other
necessary facilities as required (the "Stormwater Management System").
(c) A road system which accommodates the servicing of the Lands, providing for all
vehicular and pedestrian traffic and access to all lots and blocks within the Lands,
including the removal or installation of turning circles, and the Works required
within the road, including suitable subgrade, subbase and base granular materials,
subdrains, base and top stage curbs and gutters, base and surface asphalt, traffic
control and street name signs and sidewalks and all streetscape components
including street trees, boulevard topsoil and sodding, street lighting, gravel
driveway aprons, and where sidewalks exist, gravel driveway aprons with paved
surfaces between curb and sidewalk (the "Road System").
(d) A street lighting system which provides illumination of roads and walkways to
serve the said Lands including all connections, energy and maintenance costs,
appurtenant apparatus and equipment, in the locations as approved by the
Director (the "Street Lighting System").
Page 76
Schedule "G"
- 2 -
(e) Related Works including grading, landscaping, fencing, noise attenuation
measures, walkways (including lighting) and other miscellaneous Works shown on
the Engineering Drawings and Grading and Drainage Plan (the "Related Works").
PHASING OF THE WORKS
The Works shall be divided into the following stages, unless approved by the
Director:
(2) INITIAL WORKS
Storm Sewer System including all appurtenances;
initial roadworks including subgrade, subbase and base granular materials,
subdrains, base curbs, base asphalt, traffic control and street name signs of
the Road System;
grading; and
noise attenuation fencing (collectively called the "Initial Works").
(3) STORMWATER MANAGEMENT SYSTEM
(4) STREET LIGHTING SYSTEM
(5) FINAL WORKS
final roadworks including top curbs and gutters, surface asphalt, sidewalks,
street trees, boulevard topsoil and sodding and driveway aprons of the
Road System; and
landscaping works, fencing, walkways and any remaining works not
outlined in paragraphs (2), (3) and (4) of Schedule "G".
Page 77
SCHEDULE"H"
THIS SCHEDULE IS SCHEDULE "H" to the Agreement which has been
authorized and approved by By-law No, 2004-001 of The Corporation of the Municipality
of Clarington, enacted and passed the 19th day of January, 2004.
UTILITIES AND SERVICES REQUIRED
1. ELECTRICAL SUPPLY SYSTEM
The Owner shall arrange with the appropriate authority having jurisdiction for the
design, provision and installation of an electrical supply system to serve the Lands,
in the locations as approved by the Director. All electrical services are to be
installed underground.
The Owner shall also make any necessary arrangements with any T.V. Cable
Company in order that the installation of any such system shall take place so far as
possible contemporaneously with the installation of other services so as to cause
minimum disruption of municipal services,
2. TELEPHONE SYSTEM
The Owner shall arrange with Community Telephone Limited and/or Bell Canada
for the design, provision and installation of a telephone system to serve the said
Lands, as approved by the Director. All telephone services are to be installed
underground.
3. GAS SUPPLY SYSTEM
The Owner shall arrange with an appropriate gas company for the design,
provision and installation of a complete gas supply system to serve the said Lands,
including gas mains, and all appurtenant manholes, laterals, service connections,
apparatus and equipment in the locations as approved by the Director.
4. CABLE TELEVISION
The Owner shall arrange with the Cable Television Company having authority to
provide its services within the area of the Plan of Subdivision for the design,
provision and installation of a complete cable television distribution system to
serve the said Lands. All cable television 'services are to be installed underground.
Page 78
Schedule "H"
- 2 -
5. MAIL DISTRIBUTION SYSTEM
The Owner shall arrange with Canada Post for the provision and installation of a
mail distribution system to service the said Lands, in the location as approved by
the Director.
The Owner acknowledges and agrees to bear all costs for the provIsion,
installation and location of Community mailboxes to service this subdivision in a
manner satisfactory to the Director of Engineering Services,
Page 79
SCHEDULE "I"
THIS SCHEDULE IS SCHEDULE "I" to the Agreement which has been
authorized and approved by By-law No. 2004-001 of The Corporation of the Municipality
of Clarington, enacted and passed the 19th day of January, 2004.
DUTIES OF OWNER'S ENGINEER
1. DESIGN WORKS AND PRIVATE WORKS
In addition to the other requirement of this Agreement, the Owner's Engineer shall
prepare all drawings, plans, studies, reports, estimates, calculations and documentation
for the consideration and approval of the Director, which include:
(a) the Engineering Drawings and other related Drawings;
(b) the Grading Plans, Drainage Plans, Landscaping Plans, Staging Plans, Utility
Composite Plans, Master Drainage Plans, Erosion and Sedimentation Control
Plans, Tree Preservation Plans, and other related Plans;
(c) Traffic Reports, Soils Reports, Geotechnical Reports, Stormwater Management
Reports, Stormwater Implementation Reports and other related Reports;
(d) Schedules of Work;
(e) the Works Cost Estimates or Stage Cost Estimate; and
(0 all documentation and verification to support Performance Guarantee and Security
for the Maintenance Guarantee reduction submissions.
The approval of the Director shall not absolve or release the Owner or the Owner's
Engineer of the responsibility and liability for any errors or omissions in the above
drawings, plans, reports, stages or documentation or from liability for any damage or loss
caused or resulting directly or indirectly by the Owner's Engineer.
2. REPRESENT OWNER AND OBTAIN MUNICIPALITY APPROVALS
The Owner's Engineer is hereby authorized by the Owner to act as the Owner's
representative in all matters pertaining to the deSign, construction and installation ofthe
Page 80
Schedule "I"
- 2 -
works and the overall management of the development, and shall co-operate with the
Municipality and the Director to protect the interests of the Municipality and the general
public in all matters relating to the design, construction and installation of the Works. In
addition, the Owner's Engineer shall work in accordance with all conditions of the
Agreement, including Section 5 and Schedules "G", "H", "I", "J" AND "L",
3. PROVIDE RESIDENT SUPERVISION
The Owner's Engineer shall provide fully qualified, experienced supervisory layout
and inspection staff, acceptable to the Director, to provide continuous inspection service
during all phases of the construction and installation of the Works and the private works.
Without limiting the generality of the foregoing, the Owner's Engineer shall be responsible
for the following:
(a) To carry out or arrange for the carrying out by qualified personnel of field layout
including the provision of line and grade to the contractors and, where required,
restaking.
(b) To thoroughly inspect the construction, installation, and supply of materials to
ensure that all work is being performed in accordance with the Engineering
Drawings, the Municipality's Design Criteria and Standard Drawings and all
applicable law. The Owner's Engineer shall have the authority and responsibility to
immediately stop and/or reject any work, procedure, or material which in his
opinion does not comply with the Engineering Drawings, the Design Criteria and
Standard Drawings, and/or the applicable law.
(c) To carry out or arrange the carrying out by qualified personnel of all necessary
monitoring and field testing of procedures, equipment and materials installed or
proposed to be installed and, in conjunction with the geotechnical engineer, and
where appropriate, the structural engineer, provide certification to the Director that
all monitoring and test results meet the requirements of Schedule "L" of this
Agreement
(d) To provide co-ordination and scheduling of the construction and installation of the
Works in accordance with the timing provisions contained in this Agreement and
the requirements of the Director.
Page 81
Schedule "I"
- 2 -
(e) To investigate and immediately report to the Director any unusual circumstances,
potential problems, conflicts, errors, defective work or material which may arise
during the construction and installation of the Works.
(f) To obtain field information during and upon completion of the construction and
installation of the Works required to modify the Engineering Drawings to produce
the as-constructed drawings of the Works,
4. MAINTAIN RECORDS
The Owner's Engineer shall maintain all records, data, reports, approvals and
orders pertaining to the construction and installation including all contract documents,
sub-contracts and supply contracts, payment certificates, payment records and receipts,
certificates of substantial performance, the names and addresses of all contractors, sub-
contracts and proof of service and publication thereof in accordance with the provisions of
applicable legislation and make all of the foregoing available for examination by the
Director as required by the Director without cost. If any change is made in the terms of a
contract, sub-contract or supply contract or in the name or address of a contractor, sub-
contractor and supplier from information that may not have been provided to the Director
by the Owner or the Owner's Engineer pursuant to this Agreement, the Owner's Engineer
immediately after becoming apprised of each change shall give the Director written notice
of it.
5. PROVIDE PROGRESS
The Owner's Engineer shall provide the Director with reports on the progress of
the construction and installation of the Works on a monthly basis, or at such other interval
as approved by the Director.
6. PREPARE AS-CONSTRUCTED DRAWINGS
The Owner's Engineer shall prepare and submit the as-constructed drawings of
the Works together with the computer disks, if any have been prepared, to the Director
provided that the as-constructed drawing shall be prepared to the satisfaction of the
Director.
Page 82
SCHEDULE "J"
THIS SCHEDULE IS SCHEDULE "J" to the Agreement which has been
authorized and approved by By-law No. 2004-001 of The Corporation of the Municipality
of Clarington, enacted and passed the 19th day of January, 2004.
WORKS COST ESTIMATES
LETTER OF CREDIT REDUCTION FORM
... i~ " i'ii ".'.'. ii ii'N'I!!. iii!"","'il
'i ii.ii il'i)'1"" 'Ii' i i,,/I "..'",!'.,"'" 'T,"'.' ,n {,
1 Sediment/Erosion Control $ 33,499.00
2 Grading R.0.w. $ 58,159.10
3 Storm Sewers $ 461,345.50
4 Roads - Year 1 $ 493,081.34
5 Street Lighting $ 32,400.00
6 Roads - Year 2 $ 339,715.22
7 Driveway Aprons $ 53,900.00
8 Topsoil and Sod Boulevard $ 61,530,00
,
9 Street Trees $ 46,550.00
10 Noise Fencing $ 15,000.00
Sub-total $ 1,595.180.16
5% Contingency $ 79,759.01
Sub-total $ 1,674,939.17
10% Engineering $ 167,493.92
Sub-total $ 1,842,433.09
7% G.S.T. $ 128,970.32
PLUS 15% HOLDBACK ON COMPLETED WORK $ 0.00
PLUS 20% COMPLETION ALLOWANCE ON FINAL WORKS $ 0.00
REQUIRED LETTER OF CREDIT $ 1,971,403.41
SUBSEQUENT STAGES
The Performance Guarantee for the Works shall be based on the preliminary
Works Cost Estimates which have been submitted to the Director by the Owner's
Engineer and approved by the Director. When the Engineering Drawings and the
Landscaping Plan have been approved by the appropriate Director as is required by this
Agreement, a revised Works Cost Estimates for the construction and installation of Works
shall be prepared by the Owner's Engineer and submitted to the Director for approval.
The revised Works Cost Estimates shall be used as a basis to adjust the Performance
Guarantee, in the event of an increase or decrease in the Works Cost Estimate.
Page 83
SCHEDULE "K"
THIS SCHEDULE IS SCHEDULE "K" to the Agreement which has been
authorized and approved by By-law No, 2004-001 of The Corporation of the Municipality
of Clarington, enacted and passed the 19th day of January, 2004.
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 Municipality's Director of Finance and licensed in Ontario to underwrite such
insurance and containing terms and conditions which are acceptable to the Municipality's
Director of Finance. Such policy or policies of insurance shall indemnify the Municipality
against all damage or claims for damage for:
(a) any loss or damage that shall or may happen to any of the Works or any of the
Utilities or to any part or parts thereof respectively;
(b) any loss or damage that shall or may happen to any of the materials or any of the
equipment or any other things used to construct or install any of the Works or any
of the Utilities or any part or parts thereof respectively;
(c) any injury to any person or persons including workmen employed on the said
Lands and the public;
(d) any loss or damage that shall or may 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 said Lands;
(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 property
of the Municipality or to the property of any other person either directly or indirectly
by reason of the Owner undertaking the development of the said Lands together
with any or all of the Works, Utilities and Services pertaining thereto.
Page 84
Schedule uK"
. 2 -
2. AMOUNTS OF COVERAGE REQUIRED
Policy or policies of insurance shall be issued jointly in the names of the Owner
and the Municipality and shall provide the following minimum coverages for five million
($5,000,000.00) dollars for all damage arising out of one (1) accident or occurrence or
series of accidents or occurrences.
The issuance of such policy or policies of insurance or the acceptance of it or them
by the Municipality shall not be construed to relieve the Owner from responsibility for
other or larger claims for which it may be held responsible.
3. 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
(b) any pile driving or caisson work;
(c) any collapse or subsidence of any building, structure or land from any cause; or
(d) any storage, handling or use of explosives in cases in which the Owner is required
to obtain the Director's permission to carry out a blasting operation under Schedule
"L" of this Agreement.
4. TERM OF INSURANCE
The term of the required insurance shall commence no later than the day which
the first Authorization to Commence Works is issued and shall terminate no earlier than
the last day on which all Certificates of Acceptance have been issued for each of the
Works for all the Works contemplated by this Agreement.
Page 85
SCHEDULE "L"
THIS SCHEDULE IS SCHEDULE "L" to the Agreement which has been
authorized and approved by By-law No. 2004-001 of The Corporation of the Municipality
of Clarington, enacted and passed the 19th day of January, 2004.
REGULATIONS FOR CONSTRUCTION
1. GENERAL
All work pursuant to and associated with this Agreement shall be carried out in
strict conformity with all approved Engineering Drawings, the Municipality's Design
Criteria, Standard Drawings and Specifications or any revision thereof and all applicable
legislation, in addition to any requirements set out in this Agreement.
2. SAFETY
The Owner shall ensure that all construction pursuant to and associated with this
Agreement is carried out in conformance with the Occupational Health and Safety Act,
and other applicable legislation.
3. PERMITS AND APPROVALS
The Owner shall ensure that any and all permits and approvals required to install
or construct or prepare to install or construct any of the Works pursuant to or associated
with any part of this Agreement have in fact been obtained and are valid and in good
standing.
4. REQUIREMENTS FOR BLASTING
Prior to commencing any blasting, the Owner shall obtain from the Director,
permission to carry out the blasting operation.
5. REMOVAL OF TOPSOIL
The Owner shall not remove any topsoil from the said Lands except for
construction purpose and such topsoil must remain within the limits of the said Lands.
Page 86
Schedule "L"
. 2 -
6. DUMPING OF FILL OR DEBRIS
The Owner agrees to neither dump, or permit to be dumped, any fill or debris, on
nor to remove, or permit to be removed any fill from any lands to be dedicated to the
Municipality other than the roads within the limits of the said Lands, without the written
consent of the Director.
7. DISPOSAL OF CONSTRUCTION GARBAGE
The Owner shall remove and dispose of all construction garbage and debris from
the said Lands in an orderly and sanitary fashion in a dump site off the said Lands and
approved by the Director. The Municipality shall not be responsible for the removal or
disposal of garbage and debris. The Owner shall deliver a copy of this provision to each
and every builder obtaining a building permit for any part of the said Lands and to ensure
that no burning of construction garbage or debris is permitted on the said Lands. Without
derogating from the foregoing provisions of this paragraph, if the Owner fails to remove
construction garbage or debris from the Lands for a period of three (3) consecutive days
following the giving of written notice by the Director to the Owner requiring it to do so, the
Director may cause the construction garbage or debris to be removed to and disposed of
in the aforesaid dumping site at the expense of the Owner. Forthwith after the Director
gives written notice to the Owner requiring it to pay for the costs incurred in removing and
disposing of the construction garbage or debris, the Owner shall pay the Municipality the
amount of money for it is invoiced.
8. QUALITATIVE AND QUANTITATIVE TESTS
(1) The Owner's Engineer shall arrange for and monitor all testing or procedures,
equipment and materials, by a qualified geotechnical engineer and where
applicable, a qualified structural engineer, who shall ensure conformance with the
Engineering Drawings, and with the Municipality's Design Criteria and Standard
Drawings, or in cases where criteria have not been specified by the Municipality,
with the Ontario Provincial Standards for Roads and Municipal Services.
Prior to the issuance of a Certificate of Completion, the Owner's Engineer, in
conjunction with the geotechnical engineer and where applicable structural
engineer, shall issue a certificate in a form acceptable to the Director, confirming,
based on the location, frequency and type of tests and monitoring and the results
of such tests or monitoring, that he is satisfied with the materials testing methods
Page 87
Schedule "L"
- 3 .
used and that the results conform to the requirements of paragraph 8(1) of this
Schedule "L".
(3) The Owner agrees that the Director may, at his sole discretion, employ a
geotechnical engineer to carry out independent qualitive or quantitative tests on
behalf of the Municipality, for any portion of the Works, procedures, equipment or
materials installed or constructed or to be installed or constructed and that the
costs of such testing shall be paid by the Owner.
9. TELEVISED INSPECTION OF STORM SEWER
The Owner agrees to televise and record, to the satisfaction of the Director, and for
Municipality use, all of the storm sewers, and where deemed necessary by the Director,
all catchbasin leads and service connections and, subsequent to any rectifications or
additional work, to re-televise and record to the satisfaction of the Director, any storm
sewer, catch basin lead, rear yard catchbasin lead or service connection and that all
associated costs shall be paid by the Owner.
10. WINTER CONSTRUCTION
In addition to the materials testing criteria for cold weather construction, any pipe
bedding, trench backfill or road building material found to contain frozen material shall be
deemed unacceptable and shall be removed immediately.
The Owner shall not commence placement of base asphalt paving later than
December 1 st and shall not commence placement of surface asphalt paving later than
November 15th, unless approved otherwise by the Director.
Should the Director be of the opinion that any of the Works are not being
constructed using effective cold-weather precautions he may, in his absolute discretion,
revoke any Authorization to Commence Works and suspend construction by issuing a
stop work order to be in effect until the Director give the Owner written notice of the
termination of the stop work order.
11. MAINTENANCE, CLOSING AND USE OF EXTERNAL ROADS
The Owner shall, at all times during the life of this Agreement ensure that during
any construction on the said Lands, all public highways abutting the said Lands and all
Page 88
Schedule "L"
- 4 .
public highways used for access to the said Lands, shall be maintained in a condition at
least equal to their condition on the date as of which this Agreement is made, and in all
cases to the satisfaction of the Director. At all times, the Owner shall maintain all such
highways free of dust and mud which originate from the Lands. If, in the opinion of the
Director, a highway has been damaged as a result of the construction, installation or
maintenance of the Works, or the development of any portion of the Lands as a result of
any action or default by any person other than the Municipality, its agents, employees or
contractors, forthwith after the Director gives the Owner written notice of his opinion, the
Owner, at the Owner's expense, shall repair such road to the condition which is at least
equal to its condition immediately prior to the date of such damage, to the satisfaction of
the Director. No highway outside the limits of the said Lands shall be closed without the
prior written approval of the authority having jurisdiction over such highway. The Owner
agrees not to use or occupy any untravelled portion of any road allowance without the
prior written approval of the authority having jurisdiction over such road allowance.
Prior to the placement of the base course of asphalt on any road required to be
constructed under this Agreement, the Owner shall remove any contamination of the
granular base course and repair and replace such base course, where necessary, to the
approval of the Director, in order that the construction of such road shall not have suffered
due to any use of the granular base course as a temporary road.
Similarly, prior to the placement of the surface of asphalt on any road required to
be constructed under this Agreement, the Owner shall clean the base course of asphalt
and repair and replace such base course where necessary.
Until the roads within the 40M Plan are assumed by the Municipality, the Owner
shall maintain all internal roads in a condition acceptable to the Director, and shall ensure
these roads are free of dust and mud.
12. 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.
Page 89
SCHEDULE "M"
THIS SCHEDULE IS SCHEDULE "M" to the Agreement which has been
authorized and approved by By-law No. 2004-001 of The Corporation of the Municipality
of Clarington, enacted and passed the 19th day of January, 2004.
USE OF THE LANDS
The Owner agrees that the said Lands shall not be used for the purpose other
than as set out in the following table:
LOT OR BLOCK NUMBER
PERMITTED LAND USE
ON 40M PLAN
Lots 1-73 Single Family Dwelling Unit
Blocks 67 to 72 32 Townhouse Units
Blocks 75 Medium Density Residential
Development
Blocks 77 Road Widenings
Blocks 78, 79, 80 0.3 Metre Reserves
Block 74 School
Block 73 Park
Block 76 Future Development
Page 90
SCHEDULE "N"
THIS SCHEDULE IS SCHEDULE "N" to the Agreement which has been
authorized and approved by By-law No. 2004-001 of The Corporation of the Municipality
of Clarington, enacted and passed the 19th day of January, 2004.
LANDS 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 Director of
Engineering and/or any other Authorities having jurisdiction.
LOT OR BLOCK NUMBER
PERMITTED LAND USE
ON 40M PLAN
Blocks 76
The Owner shall not require or cause or
suffer any person to require building
permits to be issued until such time said
block has received the appropriate
approvals to permit the development of
said lands.
Page 91
SCHEDULE "0"
THIS SCHEDULE IS SCHEDULE "0" to the Agreement which has been
authorized and approved by By-law No. 2004-001 of The Corporation of the Municipality
of Clarington, enacted and passed the 19th day of January, 2004.
LANDS REQUIRING SITE PLAN APPROVAL
The Owner shall not make or permit or offer any person(s) to make an application
for a building permit for the erection of any building or structure on any of the lands listed
in the following table until a Site Agreement has been entered into with the Municipality
and the building complies in all respects with the terms of the Site Plan Agreement.
LOT OR BLOCK NUMBER
PERMITTED LAND USE
ON 40M PLAN
Block 75
Medium Density Residential
Page 92
SCHEDULE "P"
THIS SCHEDULE IS SCHEDULE "P" to the Agreement which has been
authorized and approved by By-law No. 2004-001 of The Corporation of the Municipality
of Clarington, enacted and passed the 19th day of January, 2004
- NOT USED.
Page 93
SCHEDULE "Q"
THIS SCHEDULE IS SCHEDULE "Q" to the Agreement which has been
authorized and approved by By-law No. 2004-001 of The Corporation of the Municipality
of Clarington, enacted and passed the 19th day of January, 2004.
CONSERVATION AUTHORITY'S WORKS
That prior to anyon-site grading or construction or final registration of the plan,
the Owner shall submit to, and obtain approval of the Municipality of Clarington and the
Central Lake Ontario Conservation Authority for reports describing the following:
a) the intended means of conveying stormwater flow from the site, including use of
stormwater techniques which are appropriate and in accordance with provincial
guidelines. The stormwater management facilities must be designed and
implemented in accordance with the recommendations of the Westside Creek
Master Drainage Plan, Addendum No.3;
b) the anticipated impact of the development on water quality, as it relates to fish
and wildlife habitat once adequate protective measures have been taken; and
c) the means whereby erosion and sedimentation and their effects will be
minimized on the site during and after construction in accordance with the
provincial guidelines. The report must outline all actions to be taken to prevent
an increase in the concentration of solids in any water body as a result of on-site,
or other related works, to comply with the Canada Fisheries Act.
The Owner shall obtain all necessary permits from the Central Lake Ontario
Conservation Authority under Ontario Regulation 158, prior to the registration of the
plan.
The Owner agrees to fulfil the requirements of the Master Drainage Study as they apply
to this site to the satisfaction of the Municipality of Clarington and the Central Lake
Ontario Conservation Authority.
Page 94
SCHEDULE "R"
THIS SCHEDULE IS SCHEDULE "R" to the Agreement which has been
authorized and approved by By-law No. 2004-001 of The Corporation of the Municipality
of Clarington, enacted and passed the 19th day of January, 2004.
ENGINEERING AND INSPECTION FEES
Estimated Cost of Works
Fees
Up to $100,000.00
4% to a maximum of $4,000.00
$100,000.00 to $500,000.00
$4,000.00 or 3.5% of the estimated cost
of services - whichever is greater
$500,000.00 to $1,000,000.00
$17,500.00 or 3% of the estimated cost
of services - whichever is greater
$1,000,000.00 to $2,000,000.00
$30,000.00 or 2.50% of the estimated
cost of services - whichever is greater
$2,000,000.00 to $3,000,000.00
$50,000.00 or 2.25% of the estimated
cost of services - whichever is greater
$3,000,000.00 to $4,000,000.00
$67,500.00 or 2% of the estimated cost
of services - whichever is greater
For the purposes of calculating the Engineering and Inspection Fees as
contemplated by this Schedule, the estimated' costs of Works shall include the Cost
Estimates as specified in Schedule "J" hereto, and shall also include the estimated cost of
Region services. The payment of the Engineering and Inspection fees to the Municipality
are subject to the Goods and Services Tax, and therefore an additional seven (7%)
percent must be added to the fees calculated using this Schedule and paid by the Owner
to the Municipality.
The Engineering and Inspection Fees are to be paid to the Municipality prior to
issuance of the Authorization to Commence Works provided that if there is a Staging Plan
the Engineering and Inspection Fees relating to each stage are to be paid to the
Municipality prior to issuance of the Authorization to Commence Works for the stage in
question.
Page 95
SCHEDULE "S"
THIS SCHEDULE IS SCHEDULE "s" to the Agreement which has been
authorized and approved by By-law No. 2004-001 of The Corporation of the Municipality
of Clarington, enacted and passed the 19th day of January, 2004.
CONDITIONS OF DRAFT APPROVAL
Revised Draft Plan of Subdivision 18T-96014
Part Lot 16, Concession 1, Former Town of Bowmanville
1. The Owner shall have the final plan prepared on the basis of approved draft plan of
subdivision 18T 96014 prepared by D.G. Biddle & Associates limited identified as
job number 102065, dated July 2002, as revised and dated, March 2003 and
redlined on September 8th, 2003 which illustrates one medium density block for a
maximum of 60 units per net residential hectare, 66 single detached dwellings, 32
townhouse units, a 1.99 ha separate elementary school block, a 1.78 ha
neighbourhood park block, a neighbourhood commercial block and roads.
2. The Owner shall dedicate the road allowances included in this draft plan as public
highways on the final plan.
3. The Owner shall name road allowances included in this draft plan to the satisfaction
of the Regional Municipality of Durham and the Municipality of Clarington.
4. The Owner shall convey a 5.182 metre road widening on Green Road to the
Municipality of C1arington plus 12m X 6m sight triangles at all intersecting streets.
5. The Owner shall convey a road widening 45 metres long by 7.0 metres on Green
Road immediately south of the St. Lawrence and Hudson Railway property for
future grade separation.
6. The Owner shall convey a 0.3 metre reserve along Green Road to the Municipality
of Clarington.
7. The Owner shall convey Block 95, as redlined, to the Municipality of Clarington for
park or other public recreational purposes in accordance with the Planning Act.
8. Block 95, as redlined, shall be provided gratuitously to the Municipality in the first
phase of development and in a form satisfactory to the Director of Engineering
Services. The Owner shall prepare a Soils Report which indicates that no foreign
material is present on the site. The park shall be graded to ensure proper drainage
and compatibility with abutting lands and roads. Not less than 200mm of topsoil
shall be provided on the site. Seeding/sodding to stabilize the site shall be
determined by the Director of Engineering Services. The block shall not be used for
the temporary storage of any materials nor shall any material be imported to or
exported from the block without the approval of the Director.
9. The Owner agrees that all land dedications required by any agency for the subject
development shall be free and clear of any encumbrances and in a form satisfactory
to thei r respective sol icitors.
10. The Owner shall grant such easements as may be required for utilities, drainage and
servicing purposes to the appropriate authorities.
Page 96
11. The Owner shall submit plans showing the proposed phasing to the Region and
Municipality for review and approval if this subdivision is to be developed by more
than one registration.
12. The Owner agrees to submit, if warranted by the Director of Engineering Services, a
Traffic Impact Study to demonstrate that full development can occur in advance of
the construction of the grade separation at Green Road without adversely affecti ng
the existing road network. Specific lots available for building permits in any single
phase will be at the discretion of the Director of Engineering.
13. The Owner agrees that all works and services must be designed and constructed in
accordance with the Municipality of Clarington Design Criteria and Standard
Drawings, provisions of the Municipality Development By-law and all applicable
legislation and to the satisfaction of the Director of Engineering Services.
14. The Owner shall, if necessary, apply to the Municipality of Clarington and obtain
area municipal approval of the zoning of the land uses shown on the approved draft
plan in accordance with the provisions of the Planning Act.
15. The Owner will be responsible for 100% installation of pedestrian sidewalks and
street illumination within the plan of subdivision.
16. The Owner will be responsible for 100% of the cost of constructing sidewalk
connections between the subject subdivision and the existing residential
neighbourhood to the east.
17. The Owner shall enter into a written agreement with the Peterborough Victoria
Northumberland and Clarington Catholic District School Board which provides for
the acquisition of the school site, as shown as Block 94 on the draft plan, to the
satisfaction of the School Board. The agreement shall, among other matters,
provide for the rough grading of Block 94, the provision of all municipal services to
the site, and where applicable the installation of a 1.8 metre high chain link fence
on the perimeter of Block 94 where it abuts proposed or existing residential lands
and along Street "A", "F" or Green Road frontage to the satisfaction of the
Peterborough Victoria Northumberland and Clarington Catholic District School
Board. The Owner shall provide the Peterborough Victoria Northumberland and
Clarington Catholic District School Board with a report detailing the soil bearing
capacity and composition of soils within Block 94. Furthermore, the Owner agrees
that Block 94 shall be made available in the first phase of development. The
Owner agrees to provide full access to the site to the satisfaction of the Director of
Engineering Services and the Peterborough Victoria Northumberland and
Clarington Catholic School Board. If the school site and access is provided in
advance of registration of this plan, then this condition will be deemed fulfilled.
18. The storm water drainage works and facilities necessary for this development must
be constructed in accordance with the West Side Creek Master Drainage Study,
dated 1992, prepared by G. M. Sernas and Associates and as finally approved by
the Director of Engineering Services. This shall include any temporary works that
are deemed necessary by the Director of Engineering Services to provide for this
development.
19. The Owner shall retain a professional engineer to prepare and provide a
Preliminary Grading and Drainage Plan that details the configuration of the on-site
storm sewer system (minor system) and the conveyance of the overland flow (major
system). The plan must detail the proposed storm water drainage scheme that will
be implemented prior to the construction of Green Road as well as the drainage
scheme that includes Green Road as a fully reconstructed and urbanized roadway.
20. The Owner shall be responsible for 100% of the cost, financial and otherwise for
any traffic control measures that are deemed necessary by the Di rector of
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Engineering Services on any existing municipal roads, new municipal roads or
private roads.
21. The applicant must enter into a Subdivision Agreement with the Municipality of
Clarington and agree to abide by all terms and conditions of the Municipality's
standard subdivision agreement, including, but not limited to requirements that
follow.
22. The Owner shall provide and install sidewalks, street lights, temporary turning
circles, centralized mailboxes, signage etc. as per the Municipality's standards and
criteria.
23. The Owner shall cause all utilities, including hydro, telephone, Cable TV, etc. to be
buried underground.
24. The Owner agrees that prior to issuance of building permits, access routes to the
subdivision must be provided to meet Subsection 3.2.5.2(6) of the Ontario Building
Code and, that all watermains and hydrants are fully serviced and the Owner agrees
that during construction, fire access routes be maintained according to Subsection
2.5.1.2 of the Ontario Fire Code, storage of combustible waste be maintained as
per Subsection 2.4.1.1 and open burning as per Subsection 2.6.3.4 of the Ontario
Fire Code.
25. Development of the entire draft plan may not be permitted to proceed until such
time that the Municipality has approved the expenditure of funds for the provision
of the construction of Green Road as well as the construction of any other related
external works or services which have been deemed necessary by the Director of
Engineering Services to service this development. The number of building permits
available to the applicant at any time during the development process will be
subject to the sole discretion of the Director of Engineering Services.
26. No building permit shall be issued for the construction of any building on any
residential lot and/or block on said plan, until the exterior architectural design of
each building and the location of the building on the lot/block has been approved
by the Municipality of Clarington.
27. No residential units shall be offered for sale to the public on said plan until such
time as the exterior architectural design of each building has been approved by the
Director of Planning Services.
28. The Owner shall provide the Municipality of Clarington, at the time of execution of
the subdivision agreement unconditional and irrevocable, Letters of Credit
acceptable to the Municipality's Treasurer, with respect to Performance Guarantee,
Maintenance Guarantee, Occupancy Deposit and other guarantees or deposits as
may be required by the Municipality.
29. That the Owner shall pay to the Municipality, the development charge in
accordance to the Development Charges By-law as amended from time to time, as
well as payment of a portion of front end charges pursuant to the Development
Charges Act if any are requi red to be paid 'by the Owner.
30. That the Owner supply on disk, in a CAD format acceptable to the Municipality, a
copy of the proposed Plan of Subdivision as Draft Approved and each 40M Plan
proposed for registration.
31. Prior to anyon-site grading or construction or final approval of the plan, the Owner
shall submit and obtain approval from the Municipality of Clarington and the
Central Lake Ontario Conservation Authority for reports describing the following;
Page 98
a. the intended means of conveying storm water flow from the site, including
use of storm water techniques which are appropriate and in accordance
with the provincial guidelines. The stormwater management facilities must
be designed and implemented in accordance with the recommendations
of the West Side Creek Master Drainage Plan, Addendum No.3;
b. the anticipated impact of the development on water quality, as it relates to
fish and wildlife once adequate protective measures have been taken;
c. the means whereby erosion and sedimentation and their effects will be
minimized on the site during and after construction in accordance with the
provincial guidelines. The report must outline all actions to be taken to
prevent an increase in the concentration of solids in any water body as a
result of on-site or other related works, to comply with the Canada Fisheries
Act.
32. The Owner shall obtain all necessary permits from the Central Lake Ontario
Conservation Authority under Ontario Regulation 158, prior to the registration of
the plan.
33. The Owner shall submit an updated noise (acoustics) and vibration study. The
report shall address noise and vibration generated by traffic and railway. Projected
traffic volumes shall be provided by the Region of Durham Planning Department.
The report shall include recommendations for this development once the Final
grades and engineering for the site have' been established. The recommendations
for noise attenuation measures shall be in accordance with Ministry of Environment
Guidelines. The Owner agrees to implement the recommendations through the
Municipality of Clarington subdivision agreement, which is registered on title and
shall include any required warning clauses as identified in the report. A copy of the
executed agreement shall be provided to the Regional Municipality of Durham and
St. Lawrence and Hudson Railway to facilitate clearance of this condition.
34. 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
sewers and water supply facilities are to be designed and constructed according to
the standards and requirements of the Regional Municipality of Durham. All
arrangements are to be made to the satisfaction of the Regional Municipality of
Durham, and are to be completed prior to final approval of this plan.
35. Prior to entering into a subdivision agreement, the Regional Municipality of
Durham shall be satisfied that adequate. water pollution control plant and water
supply capacities are available to the proposed subdivision.
36. 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 Region concerning the provision
and installation of sanitary sewers, water supply, roads and other regional services.
37. The subdivision agreement between the Owner and the Municipality of Clarington
shall contain, among other matters, the following provisions;
a. The Owner agrees to include provisions whereby all offers to purchase and
sale shall include information that satisfies Subsection 59(4) of the
Development Charges Act, 1997;
b. The Owner agrees to fulfill the requirements of the Master Drainage study as
they apply to this site to the satisfaction of the Municipality of Clarington and
the Central Lake Ontario Conservation Authority;
c. The Owner agrees to place the following in all agreements of purchase and
sale between the developer and all prospective home buyers:
Page 99
I. "Due to the proximity of this plan to the St. Lawrence and Hudson
Railway purchasers should be aware of traffic noise may interfere with
some activities of the dwelling occupants."
ii. "Despite the noise control features implemented within the
development and/or within the individual dwelling units, noise levels
from the adjacent St. Lawrence and Hudson Railway may interfere
with some activities of the dwell ing occupants."
iii. "Purchasers and tenants are warned of the existence of St. Lawrence
and Hudson Railway's operated right-of-way; the possibility of
alterations to or an expansion of its rail facilities thereon in the future,
including the possibility that the Railway may expand its operation,
which expansion may affect the living environment of the residents
notwithstanding the inclusion of noise and vibration units, and that
the Railway will not be responsible for complaints or claims arising
from Railway's use of its facilities and/or operations.
d. The Owner agrees to implement those noise control measures recommended
in the Noise Report, as required in Condition 33.
e. The Owner agrees to install a berm or combination berm and noise
attenuation barrier/or a fence to a minimum height of 5.5 metres above the
top-of-rail, along the mutual property line with the Railway right-of-way to
the satisfaction of the St. Lawrence and Hudson Railway.
f. The Owner agrees to construct a 1.83 metre high chain link fence along the
common property line of the railway and the subdivision. The Owner shall
also agree to include a covenant running with the lands, in all deeds,
obliging the purchasers of the land to maintain the fence in a satisfactory
cond ition at thei r expense.
38. Prior to final approval of this plan for registration, The Director of Planning Services
for the Municipality of Clarington shall be advised in writing by:
a. Central Lake Ontario Conservation Authority, how Conditions 31 and 32
have been satisfied;
b. Durham Region Planning Department, how Conditions 3, 11, 33, 34, 35 and
36 have been satisfied;
c. St. Lawrence and Hudson Railway, how Conditions 31,37 c), 37 e), 37 d)
and 37 fl, have been satisfied.
d. Peterborough Victoria Northumberland and Clarington Catholic District
School Board, how condition 17 has been satisfied.
NOTES TO DRAFT APPROVAL
1. If final approval is not given to this plan within three years of the draft approval
date, and no extensions have been granted, draft approval shall lapse and the
file shall be CLOSED. Extensions may be granted provided valid reason is given
and is submitted to the Director of Planning Services for the Municipality of
Clarington well in advance of the lapsing date.
2. As the Owner of the proposed subdivision, it is your responsibility to satisfy all
conditions of draft approval in an expeditious manner. The conditions of draft
approval will be reviewed periodically and may be amended at any time prior
to final approval. The Planning Act provides that draft approval, may be
withdrawn at any time prior to final approval.
3. All plans of subdivision must be registered in the Land Titles system within the
Regional Municipality of Durham.
4. Where agencies' requirements are required to be included in the local
municipal subdivision agreement, a copy of the agreement should be sent to
the agencies in order to facilitate their clearance of conditions for final approval
of this plan. The addresses and telephone numbers of these agencies are:
Page 100
a) Central Lake Ontario Conservation Authority, 100 Whiting Avenue, Oshawa,
Ontario L1 H 3T 3 (905) 579-0411
b) Region of Durham Works Department, 105 Consumers Drive, Whitby
Ontario L1 N 6A2 (905) 668-7721
c) SI. Lawrence and Hudson Railway, 40 University Avenue, Suite 807 Toronto
Ontario M5J 1T1 Attention Orest Rojik
d) Peterborough Victoria Northumberland and Clarington Catholic District
School Board, 1355 Lansdowne Street West, Peterborough, Ontario, K9J
7M3 - Attention Mr. Joel Sloggett.
Page 101
SCHEDULE "T"
THIS SCHEDULE IS SCHEDULE "T" to the Agreement which has been
authorized and approved by By-law No. 2004-001 of The Corporation of the Municipality
of Clarington, enacted and passed the 19th day of January, 2004.
"TREE PRESERVATION PLAN"
A copy of the Landscaping Plan, as approved is on file with the Municipality of
Clarington and can be viewed at 40 Temperance Street, Bowmanville in the offices of
the Engineering Services Department.
Page 102
SCHEDULE "U"
THIS SCHEDULE IS SCHEDULE "U" to the Agreement which has been
authorized and approved by By-law No. 2004-001 of The Corporation of the Municipality
of Clarington, enacted and passed the 19th day of January, 2004.
LANDSCAPING PLAN
(See Attached)
A copy of the Landscaping Plan, as approved is on file with the Municipality of
Clarington and can be viewed at 40 Temperance Street, Bowmanville in the offices of
the Engineering Services Department.
Page 103
SCHEDULE "V"
THIS SCHEDULE IS SCHEDULE "V" to the Agreement which has been
authorized and approved by By-law No. 2004-001 of The Corporation of the Municipality
of Clarington, enacted and passed the 19th day of January, 2004.
REQUIREMENTS OF OTHER AGENCIES
A. ST. LAWRENCE AND HUSON RAILWAY
The Owner agrees to place the following in all agreements of purchase and sale
between the developer and all prospective home buyers:
i) "Due to the proximity of this plan to the St. Lawrence and Hudson Railway,
purchasers should be aware of traffic noise which may interfere with some
activities of the dwelling occupants."
ii) "Despite the noise control features implemented within the development and/or
within the individual dwelling units, noise levels from the adjacent St. Lawrence
and Hudson Railway may interfere with some activities of the dwelling occupants."
iii) "Purchasers and tenants are warned of the existence of St. Lawrence and Hudson
Railway's operated right-of-way; the possibility of alterations to or an expansion of
its rail facilities thereon in the future, including the possibility that the Railway may
expand its operation, which expansion may affect the living environment of the
residents notwithstanding the inclusion of noise and vibration units, and that the
Railway will not be responsible for complaints or claims arising from Railway's use
of its facilities and/or operations.
The Owner agrees to implement those noise control measures recommended in the
Noise Report, as required in Condition 33.
The Owner agrees to install a berm or combination berm and noise attenution barrier/or a
fence to a minimum height of 5.5 metres above,the top-of-rail, along the mutual property
line with the Railway right-of-way to the satisfaction of the St. Lawrence and Hudson
Railway.
The Owner agrees to construct a 1.83 metre high chain link fence along the common
property line of the railway and the subdivision. The Owner shall also agree to include a
covenant running with the lands, in all deeds, obliging the purchasers of the land to
maintain the fence in a satisfactory condition at their expense.
B. PETERBOROUGH.VICTORIA-NORTHUMBERLAND AND CLARINGTON
CATHOLIC DISTRICT SCHOOL BOARD
The Owner shall enter into a written agreement with the Peterborough Victoria
Northumberland and Clarington Catholic District School Board which provides for
Page 104
the acquisition of the school site, as shown as Block 94 on the draft plan, to the
satisfaction of the School Board. The agreement shall, among other matters,
provide for the rough grading of Block 94, the provision of all municipal services to
the site, and where applicable the installation of a 1.8 metre high chain link fence
on the perimeter of Block 94 where it abuts proposed or existing residential lands
and along Street "A", "F" or Green Road frontage to the satisfaction of the
Peterborough Victoria Northumberland and Clarington Catholic District School
Board. The Owner shall provide the Peterborough Victoria Northumberland and
Catholic District School Board with a report detailing the soil bearing capacity and
composition of soils within Bock 94. Furthermore, the Owner agrees that Block 94
shall be made available in the first phase of development. The Owner agrees to
provide full access to the site to the satisfaction of the Director of Engineering
Services and the Peterborough Victoria Northumberland and Clarington Catholic
School Board. If the school site and access is provided in advance of registration
of this plan, then this condition will be deemed fulfilled.
Page 105
SCHEDULE"W"
THIS SCHEDULE IS SCHEDULE "W" to the Agreement which has been
authorized and approved by By-law No. 2004-001 of The Corporation of the Municipality
of Clarington, enacted and passed the 19th day of January, 2004.
ARCHITECTURAL CONTROL STANDARDS
All dwellings to be erected on the said Lands shall satisfy the following
architectural control standards:
The Owner acknowledges and agrees that prior to the issuance of building
permits, the Owner shall comply with the Municipality's Council approval Architectural
Control Design Guideline Policy.
Clw:jggron
MEMO
TO: ~ Barrie, Municipal Clerk
Tony Cannella, Director of Engineering Services
Rick Pigeon, Chief Building Official
Nancy Taylor, Director of Finance
FROM: Cynthia Strike, Senior Planner, Development Review
DATE: January 19, 2005
RE: EXECUTION OF SUBDIVISION AGREEMENT
FILE NO.: 18T.96014
Attached please find a copy of the subdivision agreement between the Municipality of
Clarington and Aspen Springs West Limited, Phase 3.
Thanks.
00
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[7'00
*
Encl.
CORPORATION OF THE MUNICIPALITY OF CLARINGTON
40 TEMPERANCE STREET, BOWMANVILLE, ONTARIO LlC 3A6 T(905)623-3379 F (905)623-0830