HomeMy WebLinkAboutBy-law 4471/94 THE CORPORATION OF THE TOWN OF P1CKERING
~,Y-LAW NO, 4471/94
Being a by-law to authorize the execution ora Servicing
Agreement and related documentation respecting the
construction of a storm sewer in the Whites Road and
Kingston Road area of the Town [Portcullis Gate Inc.].
WHEREAS, the site plan respecting a proposal to develop a non-profit residential development to be
located on Lot 4, Plan 456, Pickering, has been approved by the Director of Planning of The Corporation
of the Town of Pickering, pursuant to the provisions of the Planning Act, R.S.O. 1990, chapter P.13
section 41; and
WHEREAS that development requires storm sewer servicing; and
WHEREAS, pursuant to the provision of the Municipal Act, R.S.O. 1990, chapter M.45, section 191 (1),
the Council of The Corporation of the Town of Picketing may pass by-laws for acquiring any land or
interest therein for the purposes of the Corporation.
NOW THEREFORE, the Council of The Corporation of the Town of Pickering HEREBY ENACTS AS
FOLLOWS:
1. (a) The Mayor and Clerk are hereby authorized to execute a Servicing Agreement in the form
attached hereto as Schedule A, between Portcullis Gate Inc. and The Corporation of the
Town of Pickering, respecting the construction and installation of storm sewer facilities
in the Whites Road and Kingston Road area of the Town of Picketing.
(b) The Corporation of the Town of Picketing shall acquire those lands or interests in lands
referred to in section 25 and identified in Schedule A of that Servicing Agreement,
subject to the terms and conditions and for the purposes set out therein.
2. The Mayor and Clerk are hereby authorized to execute Transfers/Deeds of Easement in the form
attached hereto as Schedule B, effecting the acquisition by The Corporation of the Town of
Pickering of any interests in the nature of storm drainage works easements authorized in
subsection 1 (b) of this By-law.
BY-LAW read a first, second and third time and finally passed this 2nd day of August, 1994.
Bruce Taylor, Clerk
A~
LEC~AL D~:. '; ;~=,
SUMMARY OF SIGNIFICANT SERVICING AGREEMENT PROVISIONS
PART 1 - INTERPRETING AND APPLYING THE AGREEMENT
1. STATUS OF THIS AGREEMENT
The works must be begun within eight months of the date of the Agreement or it will be null and
void.
3. ~
The Agreement binds the parties to it and their successors.
6. OWNER'S GENERAL UNDERTAKING
The Owner will complete all thc municipal services to the satisfaction of the Town.
7. ~
Except where otherwise noted, all obligations on the Owner are at the expense of the Owner and
at no expense to the Town.
PART 2 - CONSTRUCTING THE TOWN'S SERVICES
8. CONSULTING ENGINEERS
The Owner must retain a Professional Engineer.
9. CONSTRUCTION/INSTALLATION OF TOWN WORKS AND SERVICES
The Owner must obtain all approvals for and construct all Town works and services shown on
plans approved by the Town's Director of Public Works to the Town's standards and in
accordance with the Town's specifications, including both the storm sewer system and boulevard
restoration.
11. AUTHORIZATION TO COMMENCE WORK
The Owner must not commence work without the written authorization of the Town's Director of
Public Works.
13. ADJACENT ROAD MAINTENANCE AND REPAIR
The Owner must maintain and repair the adjacent road during the term of the Agreement.
14. COMPLETION DATES - TOWN WORKS AND SERVICES
Works must be completed within certain time limits, depending upon the nature of the work and
its impact upon adjacent and new residents. In no case is the time limit longer than two years
from the date the work is authorized to commence.
15. FAILURE TO COMPLETE/IMPROPER PERFORMANCE
If, in the opinion of the Town's Director of Public Works, the Owner is not performing properly,
the Town can take action to compel performance, or do the work itself and draw on the Owner's
performance security.
16. GUARANTEE OF WORKS. WORKMANSHIP AND MATERiALS
The Owner guarantees all Works, workmanship and materials for a minimum period of two years
following completion.
17. PERFORMANCE AND MAINTENANCE SECURiTY
The Owner must file an irrevocable letter of credit, issued by chartered bank in Canada in a
specific form and in an amount established by the Director of Public Works (usually 60 per cent
of the estimated cost of the works) as a performance and maintenance security.
18. OWNER'S GENERAL INDEMNITY
The Owner indemnifies the Town against all actions, causes of actions, suits, claims and
demands whatsoever, which may arise either directly or indirectly by reason of the Owner
undertaking the project or constructing the services.
20. LIABILITY INSURANCE POLICY/PROVISIONS FOR DEDUCTIBLE
The Owner must provide $5,000,000 liability insurance, naming the Town as additional named
insured, and secure the payment of any deductible amount.
PART 3 o FINANCIAL MATTERS
22. PAYMENT OF LIENS AND OTHER CLAIMS
The Owner must discharge or vacate any liens or claims filed with the Town or registered on title
to any Town-owned lands.
24. PAYMENT OF ENGINEERiNG. LEGAL AND REGISTRATION FEES
The Owner must pay an Engineering Drawing Inspection Fee in the amount set out in Schedule
C, a Servicing Agreement Processing Fee in the amount set out in Schedule C, and all
registration costs incurred by the Town.
PART 4 - TRANSFERS AND REGISTRATIONS
25. TRANSFERS OF EASEMENTS
The Owner must convey to the Town all of the lands or interests in lands identified in Schedule
A and warrant that they are usable for their intended purposes. Where no parkland conveyance is
indicated, the Owner must pay the amount set out in Schedule A in lieu thereof.
schedule A
THIS SERVICING AGREEMENT made August 2, 1994, pursuant to the provisions of section 41 of the
Planning Act, R.S.O. 1990, chapter P.13,
BETWEEN:
PORTCULLIS GATE 1NC..
herein called the "Company"
OF THE FIRST PART,
TI4E CORPORATION OF THE TOWN OF PICKERINC,
herein called the "Town"
OF THE SECOND PART.
WHEREAS the Company proposes to provide storm sewer servicing to all of Lot 4, Plan 456, Picketing, except
Part 2, Plan 40R-6139, in conjunction with the development of those lands pursuant to a site plan approval
dated June 30, 1994, and a site plan agreement dated July g, 1994, between The Inter-Organization Network
Non-Profit Homes (Durham) and the Town, made and entered into pursuant to section 41 of the Planning Act,
R.S.O. 1990, chapter P. 13;
NOW THEREFORE, THIS AGREEMENT WITNESSETH THAT, in consideration of the Town approving the
plans and drawings comprising the site plan, and of the sum of two dollars now paid by each Party hereto to the
other, receipt of which by each is hereby acknowledged, the Parties hereto covenant and agree one with the
other as follows:
PART 1 - INTERPRETING AND APPLYING THIS AGREEMENT
1. STATUS OF THIS AGREEMENT
(1) If the servicing required under this Agreement is not begun on or before May 2, 1995, this
Agreement shall be null and void and of no fin'ther effect, and the Town shall not be liable for
any expenses, costs or damages suffered by the Company as a result thereof.
(2) This Agreement is entered into and executed by the Company for the purpose of having the
Town act in reliance on the covenants by the Company contained herein and the Company hereby
waives any right or claim which it now has or may hereinafter acquire which is inconsistent with
the terms of this Agreement.
(1) Whenever in this Agreement the pronoun "it" is used, it shall be read and construed as "he",
"she", "they", "him", "her" or "them", and the number of the verb agreeing therewith shall be
construed accordingly.
(2) Schedules A, B and C attached hereto shall form part of this Agreement.
(3) Time shall be of the essence of this Agreement.
This Agreement shall be enforceable by and against the Parties hereto, their heirs, executors,
administrators, successors and assigns.
4. NOTICE
(1) Any notice required to be given hereunder may be given by personal delivery or registered mail,
(a) in the case of the Company, to
A.H. Clairman
c/o A Special Place
Portcullis Gate Inc.
1966 Yonge Street
Toronto, Ontario
M4S IZ4
and
(b) in the case of the Town, to
The Town Clerk
The Corporation of the Town of Picketing
Picketing Civic Complex
One The Esplanade
Picketing, Ontario
L1V 6K7
(2) Each Party may redesignate the person or the address, or both, to whom or to which such notice
may be given by giving written notice to the other.
(3) Any notice given in accordance with this section shall be deemed to have been given on the
second day following the day of delivery or the day of mailing, as the case may be.
The Company shall obtain a licence from the owner of any lands not owned by a public road authority
upon or within which the services required herein are to be constructed to enable the Company and the
Town's inspectors to enter upon those lands in order to comply with the provisions of this Agreement.
6. COMPANY'S GENERAL UNDERTAKING
The Company shall complete in a good workmanlike manner for the Town, all the municipal services as
hereinafter set forth to the satisfaction of the Town, and shall complete, perform or make payment for
such other matters as may be provided for herein.
7. COMPANY'S EXPENSE
Every provision of this Agreement by which the Company is obligated in any way shall be deemed to
include the words "at the expense of the Company and at no expense to the Town" unless the context
requires otherwise.
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PART 2 - CONSTRUCTING THE TOWN'S SERVICES
8. CONSULTING ENGINEERS
(1) The Company shall retain a Professional Engineer as the Consulting Engineer of the Company to
carry out all the necessary engineering and to supervise the work required to be done for the
construction and installation of the services.
(2) Such Consulting Engineer, or any successor thereto, shall continue to be retained until the work
required to be done for the construction and installation of the services is completed and formally
accepted by the Town.
(3) The Company may change from one Consulting Engineer to another at any time or times during
the construction and installation of the services, so long as the Company has a Consulting
Engineer retained at all times.
9. CONSTRUCTION / INSTALLATION OF TOWN WORKS AND SERVICES
(1) The Company shall obtain all required approvals and shall construct and install to Town
standards and shall provide to the Town, complete in every detail, the following Town works and
services (the "Services") as shown on plans submitted by the Company's Consulting Engineer to
the Town and approved by the Town's Director of Public Works in accordance with the Town's
specifications for such Works:
(a) storm water drainage and management system serving all of Lot 4, Plan 456, Pickering,
except Part 2, Plan 40R-6139, (the "Lands") and lands outside the Lands but draining
through the Lands or otherwise into the system, complete with detention or retention
facilities, quality control devices and outlets; and
(b) boulevards on roads where the Company is required to construct and install all or any part
of that storm water drainage and management system.
(2) If at any time prior to the acceptance of the Services, the Town's Director of Public Works is of
the opinion that additional works are necessary to provide adequately any of the services required
hereby, the Company shall construct, install or perform such additional works at the request of
the Director.
(3) All Services shall be constructed and installed in accordance with the Town's specifications and
in a good and workmanlike manner under the supervision of the Company's Consulting Engineer
and under the observation of the Town's inspectors.
(4) The Company shall conduct video inspections of all underground services required to be
constructed or installed hereby and shall provide a VHS-format videotape record of those
inspections to the Town.
(5) The Company shall pay to the Town the Town's costs of inspection, including but not necessarily
limited to, salaries and wages of inspectors, testing fees and administration fees, within 30 days
of invoices being rendered.
10. GENERAL REGULATIONS RESPECTING SERVICING
(1) Where the construction or installation of Services involves a continuation or extension of
existing services, the Company shall join into the existing services, including adjustment of
grades where necessary, in a good and workmanlike manner.
(2) The Company shall not dump nor permit to be dumped any fill or debris on, nor remove or
permit to be removed any fill from, any public lands, other than in the actual construction of
Services without the written consent of the authority responsible for such lands.
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(3) The Town's Director of Public Works may have qualitative or quantitative tests made of any
materials which have been or are proposed to be used in the construction or installation of any
Services, and the cost of such tests shall be paid by the Company within 30 days of invoices
being rendered.
(4) The Company shall pay, within 30 days of invoices being rendered, the costs of relocating any
existing services or utilities required to be relocated by the construction or installation of
Services.
(5) Unless otherwise provided herein, the Company shall perform any work required to be done
under this Agreement to the specifications of the Town in effect at the date hereof.
(6) The Company shall provide and erect temporary signs of such nature and at such locations as
designated by the Town's Director of Public Works.
11. AUTttORIZAT1ON TO COMMENCE WORK
The Company shall not commence the construction or installation of any of the Services without the
written Authorization to Commence Work of the Town's Director of Public Works, which Authorization
shall not be issued until all approvals required by this Agreement have been obtained and,
(a) four red-lined copies of this Agreement executed by the Company have been provided to the
Town to the satisfaction of the Town Solicitor;
(b) all monies, securities and insurance policies, as noted in this Agreement, have been delivered to
the Town to the satisfaction of the Town Treasurer and the Town Solicitor;
(c) all approvals and permits have been obtained by the Company from the Ministry of the
Environment, the Ministry of Natural Resources, the Ministry of Transportation, The Regional
Municipality of Durham and the Metropolitan Toronto and Region Conservation Authority, or a
certificate has been provided by the Company's Consulting Engineer that no such approvals or
permits are required; and
(d) three executed copies, in a form suitable for registration, of any Transfers/Deeds required by
section 25 respecting the conveyances identified in Schedule A have been provided to the Town
in registrable form to the satisfaction of the Town Solicitor.
12. USE OF SERVICES PENDING COMPLETION / EMERGENCy REPAIRS
(1) Any of the Services may be used by the Town, or by such other person or agency as may be
authorized by the Town's Director of Public Works, for the purposes for which the Services are
designed, and such use shall not be deemed an acceptance of any of the Services by the Town,
nor an assumption by the Town of any liability in connection therewith, nor a release of the
Company from any of its obligations under this Agreement.
(2) The Town may make emergency repairs at any time to any of the Services; such repair shall not
be deemed an acceptance of any of the Services by the Town, nor an assumption by the Town of
any liability in connection therewith, nor a release of the Company from any of its obligations
under this Agreement.
13. ADJACENT ROAD MAINTENANCE AND REPAIR
(1) Throughout the term of this Agreement, the Company shall,
(a) maintain the road adjacent to the construction and installation of Services in a mud and
dust free condition and free of obstructions, regardless of the source or cause of any mud,
dust or obstruction;
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(b) repair the road, including boulevard, adjacent to the construction and installation of
Services where damage has occurred as a result of an operation or operations related in
any way to the construction and installation of Services.
(2) The Company, within 24 hours of oral notification by the Town's Director of Public Works or his
designate to the Company or its representative, shall undertake such works as are necessary to
clean, clear or repair that road.
14. COMPLETION DATES - TOWN WORKS AND SERVICES
The Company shall complete the Services in accordance with the following time limits:
(a) storm water drainage and management system (including grading and top-soiling) - one year
from date of Authorization to Commence Work;
(b) boulevards - fourteen months from date of Authorization to Commence Work.
15. FAILURE TO COMPLETE / IMPROPER PERFORMANCE
(1) If, in the opinion of the Town's Director of Public Works, the Company is not constructing or
installing the Services, or causing them to be constructed or installed, within the specified time or
so that they may be completed within the specified time, or is improperly performing the
Services, or has neglected or abandoned them before completion, or has unreasonably delayed
them so that the terms and conditions of this Agreement are being violated or executed carelessly
or in bad faith, or has neglected or refused to renew or again perform Services rejected by the
Director of Public Works as defective or unsuitable, or has in any other manner, in the opinion of
the Director of Public Works, defaulted in the performance of the terms and conditions of this
Agreement, then the Director may notify the Company and his surety in writing of the default or
neglect and if the notification be without effect for seven days, then the Director shall have full
authority to make any payment or do any thing, including but not limited to obtaining materials,
tools and machinery and employing persons required for the proper completion of the Services or
rectification of the default, at the cost and expense of the Company or his surety, or both.
(2) In cases of emergency, in the opinion of the Director of Public Works, the Director may act
without prior notice but the Company and its surety shall be notified forthwith.
(3) The cost of rectifying the default shall be calculated by the Director of Public Works, whose
decision shall be final, and may be charged to the Company, together with a 25 per cent
engineering and administration fee, by drawing upon the letter of credit filed with the Town
under section 17.
16. GUARANTEE OF SERVICES. WORKMANSHIP AND MATERIALS
(1) The Company shall guarantee all Services, workmanship and materials employed or used in the
construction, installation or completion of Services and other requirements under this Agreement
for a minimum period of two years (the "maintenance period") following the issuance of the
Completion Acceptance Certificate by the Town.
(2) Despite any other provisions of this Agreement, the responsibilities of the Company during the
maintenance period shall include the maintenance of the Services, including the rectification of
any unsatisfactorily installed Services.
(3) Prior to the end of the maintenance period, the Company's Consulting Engineer shall submit to
the Town,
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(a) "as built" construction drawings for the Services complete as per Town standards,
together with that Consulting Engineer's certificate that those drawings accurately depict
the Services as constructed; and
(b) a statement by an Ontario Land Surveyor that all standard iron bars and survey
monuments shown on any registered reference plan used to define the boundaries of any
easement associated with the Services have been found or re-established.
(4) Prior to the end of the maintenance period, the Town will re-inspect the Services and if,
(a) the Services are acceptable; and
(b) the Company has performed all of its obligations under the terms of this Agreement to the
satisfaction of the Town,
the Town will issue to the Company a Final Acceptance Certificate at which time the Town will
assume ownership of the Services and the operation and maintenance thereof, and the
maintenance period will then end.
(5) If upon the re-inspection conducted prior to the end of the maintenance period,
(a) the Services are not acceptable, or
(b) the Company has not performed all of its obligations under the terms of this Agreement to
the satisfaction of the Town,
the Town will advise the Company of the deficiencies, the expected rectifications, and the time
limited for implementing the rectifications (the "rectification period") and the maintenance
period shall be extended to the end of the rectification period.
(6) At the end of the rectification period, the Town will re-inspect the Services and if,
(a) the Services are acceptable; and
(b) the Company has performed all of its obligations under the terms of this Agreement to the
satisfaction of the Town,
the Town will issue to the Company a Final Acceptance Certificate at which time the Town will
assume ownership of the Services and the operation and maintenance thereof, and the
maintenance period will then end.
(7) If upon the re-inspection conducted at the end of the rectification period,
(a) the Services are still not acceptable, or
(b) the Company has not performed all of its obligations under the terms of this Agreement to
the satisfaction of the Town,
the Town's Director of Public Works shall determine, in his sole discretion, whether a further
rectification period will be granted, and, if so, upon what terms and conditions, or whether the
Town shall proceed under the provisions of section 15, or both.
17. PERFORMANCE AND MAINTENANCE SECURITY
(1) Before this Agreement will be executed by the Town, the Company shall file with the Town an
irrevocable letter of credit, issued by a chartered bank in Canada in the form set out in Schedule
B and in an amount established by the Director of Public Works (the "original value"), as a
performance and maintenance security for the purpose of,
(a) guaranteeing the satisfactory construction, installation or performance of the Services;
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(b) guaranteeing the payment of any amounts payable to the Town under this Agreement;
(c) guaranteeing the payment of any amount that the Town may be required to pay under the
provisions of the Construction Lien Act, or any successor thereto, and
(d) guaranteeing all Services, workmanship and materials during the maintenance period and
any rectification period or periods and until a Final Acceptance Certificate has been
issued by the Town's Director of Public Works.
(2) The Company may, at any time after the first 50 per cent, in value, of Services have been
constructed, installed or performed, and paid for, apply for a reduction in the security and such
application shall be made to the Town Treasurer.
(3) Upon written verification from the Director of Public Works that the construction, installation or
performance of the Services for which reduction is being sought have been satisfactorily
completed and paid for, the Town Manager may reduce the amount of the security to an amount
not less than,
(a) 60 per cent of the original value where no certificate or declaration of substantial
performance has been made;
(b) 35 per cent of the original value where,
(i) a certificate or declaration of substantial performance has been published;
(ii) 45 days following such publication have expired; and
(iii) all liens that may be claimed against any holdback required to be retained by the
Town have expired or have been satisfied, discharged or provided for by payment
into court;
and
(c) 17 per cent of the original value where,
(i) a certificate of final completion has been made by the Company's Consulting
Engineer;
(ii) 45 days following the making of such certificate have expired;
(iii) all liens that may be claimed against any holdback required to be retained by the
Town have expired or have been satisfied, discharged or provided for by payment
into court; and
(iv) a Completion Acceptance Certificate has been issued by the Town's Director of
Public Works,
which 17 per cent portion shall secure the guarantee of Services, workmanship and
materials, until a Final Acceptance Certificate has been issued by the Town's Director of
Public Works, when the balance of the security shall be returned to the Company subject
to any deductions for rectification of deficiencies.
(4) Upon the approval, if any, of a reduction in the amount of the security required to be provided in
subsection (1), the Town Manager or the Town Treasurer shall provide to the Company any
necessary assurance to effect the reduction.
18. COMPANY'S GENERAL INDEMNITY
Until the Town's Director of Public Works has issued the Final Acceptance Certificate for the Services,
the Company shall indemnify the Town against ail actions, causes of actions, suits, claims and demands
whatsoever, which may arise either directly or indirectly by reason of the Company constructing and
installing the Services under this Agreement.
19. OCCUPATIONAL HEALTH AND SAFETY
(1) The Company certifies that it is aware of its duties and obligations under the Occupational
Health and Safety ,qct, or any successor thereto, and all Regulations thereunder (herein called the
"Act"), and shall ensure that its employees, contractors, subcontractors and their employees,
(a) are aware of their respective duties and obligations under the Act, and
(b) have sufficient knowledge and training to perform all works and Services required
pursuant to this Agreement safely and in compliance with the Act.
(2) In the performance of all works and Services required pursuant to this Agreement, the Company
shall,
(a) act safely and comply in all respects with the Act, and
(h) ensure that its employees, contractors, subcontractors and their employees act safely and
comply in all respects with the Act.
(3) The Company shall rectify any unsafe act or practice and any non-compliance with the Act
immediately upon being notified by any person of the existence of such act, practice or non-
compliance.
(4) The Company shall permit representatives of the Town on the site where any works or Services
required pursuant to this Agreement are being performed at any time or times for the purpose of
inspection to determine compliance with this section.
(5) No act or omission by the Town or any representative of the Town (including the entering into of
this Agreement) shall be deemed to be an assumption of any of the duties or obligations of the
Company, its employees, contractors, subcontractors and their employees under the Act.
(6) In addition to the Company's general indemnification of the Town pursuant to section 18, above,
the Company shall indemnify and save harmless the Town,
(a) from any loss, inconvenience, damage or cost to the Town which may result from the
Company or any of its employees, contractors, subcontractors and their employees failing
to act safely or to comply in all respects with the Act in the performance of any work or
Service required pursuant to this Agreement; and
(b) against any action or claim, or costs related thereto, brought against the Town by any
person arising out of any unsafe act or practice or any non-compliance with the Act by the
Company or any of its employees, contractors, subcontractors and their employees in the
performance of any work or Service required pursuant to this Agreement.
20. LIABILITY INSURANCE POLICY / PROVISION FOR DEDUCTIBLE
(1) Before this Agreement will be executed by the Town, the Company shall file with the Town a
Certificate of Insurance verifying that a Liability Insurance Policy is in effect, setting out the
essential terms and conditions of the insurance, and naming the Town as additional named
insured, ail of which shall be subject to the approval of the Town Solicitor.
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(2) The policy shall comply with the following provisions:
(a) the minimum limit per occurrence shall be $5,000,000 all inclusive for property damage
and personal liability;
(b) it shall not contain a clause for exclusion for blasting; and
(c) it may not be cancelled unless prior notice by registered letter has been given to the Town
by the insurer thirty days in advance of the expiry date.
(3) The policy premium must be paid initially for a period of one year and the policy shall be
renewed for further one year periods until the Final Acceptance Certificate has been issued by the
Town's Director of Public Works.
(4) If the policy coverage is subject to a deductible mount, the Company shall file with the Town,
when filing the Certificate of Insurance, a certified cheque or letter of credit with the Town in the
deductible amount, as a deposit, together with a letter from the Company authorizing the Town to
appoint an independent adjuster and to investigate claims less than the deductible amount and
authorizing the Town to pay such claims deemed valid by the adjuster out of the deposit; the
Company shall be responsible for all adjustment service costs and shall maintain the deposit
throughout the term of this agreement in the amount of the deductible.
(5) The provision of the insurance policy required by this section shall not relieve the Company from
liability for claims not covered by the policy or which exceed its limits, if any, for which the
Company may be held responsible.
PART 3 - FINANCIAL MATTERS
21. EXPIRY OF SECURITIES
(1) Should any letter of credit security required to be provided hereunder expire before the Town
releases the Company from the terms and conditions hereof, the Company shall provide to the
Town at least 30 days in advance of the expiry date of that security, a further security to take
effect upon the expiry.
(2) Such further security shall be in a form and amount satisfactory to the Town.
(3) Should no such further security be provided as required, then the Town shall have the right to
convert the expiring security into cash and hold the cash in lieu of and for the same purposes as
the expiring security.
22. PAYMENT OF LIENS AND OTHER CLAIMS
(1) The Company shall discharge or vacate any liens or claims filed with the Town or registered on
title to any public lands within thirty days of being requested to do so by the Town.
(2) At the end of the maintenance period, as extended during any rectification period, the Company
shall file with the Town a Statutory Declaration stating that,
(a) all materials have been supplied and all works have been completed with respect to the
construction and installation of Services;
(b) all accounts for works performed and materials placed or furnished upon or in respect of
the construction and installation of Services have been fully paid and satisfied and no
person is entitled to claim a lien under the Construction Lien Act against the Town or any
public land;
(c) there are no judgments or executions filed against the Company;
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(d) nothing is owed by the Company or claimed against it for unemployment insurance
deductions, income ~x deductions, or by way of contribution or assessment under the
Workers' Compensation Act;
(e) the Company has not made any assignment for the benefit of creditors, nor has any
receiving order been made against it under the Bankruptcy Act, nor has any petition for
such an order been served upon the Company; and
(f) 45 days have passed since the completion of the construction, installation, and last
rectification of the Services.
23. PAYMENT OF INTEREST ON OVERDUE AMOUNTS PAYABLE
The Company shall pay interest at the rate of 18 per cent per year to the Town on all sums of money
payable hereunder which are not paid on the due dates calculated from such due dates.
24. PAYMENT OF ENGINEERING. LEGAL AND REGISTRATION FEES
(1) Before this Agreement will be executed by the Town, the Company shall pay by certified cheque
to the Town an Engineering Drawing Inspection Fee in the amount set out in Schedule C for the
examination and inspection done by the Town's Public Works Department in the processing of
the engineering drawings for this project.
(2) Before this Agreement will be executed by the Town, the Company shall pay by certified cheque
to the Town a Servicing Agreement Processing Fee in the amount set out in Schedule C for the
preparation and processing of this Agreement by the Town's Legal Services Department.
(3) The Company shall pay all registration costs incurred by the Town relating in any way to the
registration of any documentation, including Transfers/Deeds of Easement, in the Land Registry
Office within 30 days of invoices being rendered.
PART 4 - TRANSFERS AND REGISTRATIONS
25. TRANSFERS OF EASEMENTS
(1) Upon executing this Agreement, the Company shall convey or cause to be conveyed to the Town,
free and clear of all encumbrances and at no cost to the Town, the interests in lands identified in
Schedule A for the purposes set out therein.
(2) The Company hereby warrants that, upon such conveyance, neither the title to the lands conveyed
nor their physical state and condition shall prevent the Town from lawfully or physically using
the lands for the purposes set out in Schedule A for which the interest therein is being conveyed.
(3) Any Transfer/Deed of a storm sewer easement given pursuant to this Agreement shall be in a
form acceptable to the Town Solicitor and shall contain the Storm Drainage Services Easement
Schedule set out in Schedule A.
(4) The Town may complete or alter any description of land in any Transfer/Deed given pursuant to
this Agreement so as to make the description correspond with the description of the land
according to any registered reference plan used to define the boundaries of any easement
associated with the Services.
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26. NON-REGISTRATION OF AGREEMENT
This Agreement shall not be registered by the either Party.
IN WITNESS WHEREOF the Parties hereto have hereunto affixed their respective Corporate Seals attested to
by the hands of their authorized officers.
SIGNED, SEALED AND DELIVERED
PORTCULLIS GATE INC.
A.H. Clairman, Authorized Signing Officer
T. Leask, Authorized Signing Officer
THE CORPORATION OF THE TOWN OF PICKERING
Wayne Arthurs, Mayor
Brace Taylor, Clerk
V9401
11
TRANSFERS OF EASEMENTS
(Section 25)
1. TRANSFERS OF EASEMENTS REOUIRED TO BE MADE TO THE TOWN
Part Lot 28, Range 3, Storm drainage works Easement
B.F.C., Pickering
(Part 27 and 43,
Plan 40R-XXXXX)
Part Lot 4, Plan 456, Pickering Storm drainage works Easement
(Parts 30 and 41,
Plan 40R-XXXXX)
2. STORM DRAINAGE WORKS EASEMENT REFERENCE PLANS
(1) The Company shall obtain and deliver to the Town one draft copy of each proposed reference
plan required to effect the conveyance of the easements referred to in section 1 of this Schedule.
(2) Upon the completion of the construction and installation of the Services, the Company's
Consulting Engineer shall advise the Town's Director of Public Works of the actual location of
the Services in relation to the proposed easement or easements, and if the Director is satisfied
with the actual location of the works, the Company shall register that reference plan and provide
four copies of the plan as registered to the Town Solicitor.
(3) If the Town's Director of Public Works is not satisfied with the actual location of the Services in
relation to the proposed easement or easements, the Company shall obtain and deliver to the
Town one draft copy of a revised proposed reference plan, and the provisions of subsection (2)
and of this subsection will continue to apply.
3. STORM DRAINAGE WORKS EASEMENT SCHEDULE
Where a conveyance of an easement is for storm drainage works purposes, the following Schedule shall
be attached to the Transfer/Deed of Easement:
(7) INTEREST/ESTATE TRANSFERRED
Subject to the following terms and conditions, the free, uninterrupted and unobstructed right and
easement to lay, construct, operate, maintain, inspect, alter, repair, replace, reconstruct and remove storm
drainage works together with appurtenances thereto (herein called the "works"), in, over, along, across,
upon and under the land described in Box 5 (herein called the "lands"), and to drain storm water in, over,
along, across, upon and under the lands, together with the right to the Transferee, its servants, agents and
contractors with all necessary vehicles, supplies and equipment to enter onto the lands and pass and
repass over the lands for the purpose of exercising or enjoying any of the rights granted herein.
The terms and conditions which the parties hereto covenant and agree to observe and be bound by are as
follows:
1. The Transferee shall, except in case of emergency, before commencing any work authorized
hereby, give to the Transferor forty-eight hours previous written notice thereof, and in cases of
emergency such previous notice thereof as is reasonably possible.
12
2. Upon completion of any work, the Transferee shall fill in all excavations, restore fences, and
restore the surface of the ground by restoring all topsoil and grass cover disturbed thereby, and do
necessary grading to ensure soil and slope stability, and remove all equipment.
3. The Transferor shall not erect any building or structure (except a fence) on the lands, and shall
not place or remove any fill on or from any part of the lands without the previous written consent
of the Transferee.
4. The right and easement granted herein shall be subject to all leases, licences, and any rights of
use or occupation existing at the date hereof, and the Transferor may from time to time renew or
extend these or make new ones, so long as they do not interfere unreasonably with the right and
easement herein granted.
5. The Transferor hereby releases the Transferee from any claim which may arise out of the exercise
by the Transferee of the right and easement granted hereby or which may arise out of the
existence of the storm water or the existence, operation or non-operation of the storm drainage
works provided the Transferee has complied with all of the terms and conditions herein.
6. The Transferor shall execute such further assurances of the right and easement granted hereby as
the Transferee may reasonably request in writing.
7. The burden of this Transfer and of all the terms and conditions contained herein shall mn with
the lands.
8. This Transfer and all of the terms and conditions contained herein shall enure to the benefit of
and be binding upon the Transferor and the Transferee and their respective heirs, executors,
administrators, successors and assigns.
LAND BENEFITTED (DOMINANT TENEMENT)
9. The benefit of this Transfer and all of the terms and conditions contained herein shall mn with all
other lands and interests in lands owned, occupied or used by the Transferee for the purpose of
operating and maintaining storm drainage works.
13
REQUIRED FORM FOR PERFORMANCE AND MAINTENANCE SECURITY LETTER OF CREDIT
(Section 17)
To: The Corporation of the Town of Pickering
Picketing Civic Centre
One The Esplanade
Pickering, Ontario
L1V 6K7
We hereby authorize you to draw on [name of bankl, ]address of bank[, for account of Portcullis Gate Inc. up
to an aggregate amount of [amount of security in figures and in full] available by drafts at sight for 100% of
demand as follows:
Pursuant to the request of our customer, the said Portcullis Gate Inc., we [name of bankl, [address of bankl,
hereby establish and give to you an irrevocable Letter of Credit in your favour in the total amount of ]amount of
security in numbers and in words] which may be drawn on by you at any time and from time to time upon
written demand for payment made upon us by you which demand we shall honour without enquiring whether
you have a right as between yourself and our said customer to make such demand, and without recognizing any
claim of our said customer.
Provided, however, that you are to deliver to Iname of bank], [address of bankl, at such time as a written
demand for payment is made upon us a certificate signed by you agreeing or confirming that monies drawn
pursuant to this Letter of Credit are payable to you or are to be or have been expended pursuant to obligations
incurred or to be incurred by you with reference to your file regarding a Servicing Agreement dated August 2,
1994, between Portcullis Gate Inc. and The Corporation of the Town of Picketing; this Letter of Credit is given
as the Performance and Maintenance Security required by section 17 of that Agreement.
Partial drawings are permitted.
The amount of this Letter of Credit shall be reduced from time to time as advised by notice in writing given to
us from time to time by you.
This Letter of Credit will continue up to and including [date of expiry of Letter of CreditI and will expire on
that date and you may call for payment of the full amount outstanding under this Letter of Credit at any time up
to the close of business on that date. It is a condition of this Letter of Credit that it shall be deemed to be
automatically extended for one year from the present or any future expiration date hereof, unless thirty days
prior to any such date, we shall notify you in writing by registered mail that we elect not to consider this Letter
of Credit renewed for any such additional period.
We hereby covenant with drawers, endorsers, and bona fide holders of drafts drawn under and in accordance
with the terms of this credit that such drafts will be duly honoured if drawn and negotiated on or before [date of
expiry of Letter of Credit].
The drafts drawn under this credit are to be endorsed hereon and shall state on their face that they are drawn
under [name of bank], [address of bankI.
DATED this day of ., 1994.
Instructions for completing Let~ar of Credit:
1. Letter of Credit must be typed on bank letlerhead.
2. Information required in square brackets must be provided where indicated, without brackets.
3. The date in the sixth paragraph must be at least one year from the date of the Letter of Credit.
4. The date in the seventh paragraph must be the same as the date in the sixth paragraph.
5. Bank signatories must show name, printed or typed, and title, in addition to signature
14
ENGINEERING AND LEGAL FEES (Section 24)
1. ENGINEERING DRAWING INSPECTION FEE PAYABLE
The amount of the Engineering Drawing Inspection Fee payable for this project is $500.
2. SERVICING AGREEMENT PROCESSING FEE PAYABLE
The amount of the Servicing Agreement Processing Fee payable for this Agreement is $1,070 [$1,000
plus $70 GST.]
OTHER FINANCIAL MATTERS
3. TOWN CONTRIBUTION TO CONSTRUCTION COSTS - KINGSTON ROAD SERVICES
(1) Included within the services required to be constructed by the company under this Agreement is
the construction of a storm sewer on Kingston Road between and including both manhole 2X and
the sewer outfall (the "Kingston Road Services").
(2) As the Kingston Road Service is not a local service but rather a growth-related service the net
capital cost of which forms the basis, in part, of the Town's Development Charge, the Town shall
pay to the Company, notwithstanding section 7 of this Agreement,
(a) ninety per cent (90%) of the reasonable cost of the design and construction of the
Kingston Road Service where,
(i) a certificate or declaration of substantial performance has been published;
(ii) 45 days following such publication have expired; and
(iii) all liens that may be claimed against any holdback required to be retained by the
Town have expired or have been satisfied, discharged or provided for by payment
into court;
and
(b) the balance of that cost, less any deductions for rectification of deficiencies, where,
(i) the maintenance period respecting the construction of the Kingston Road Service
has expired;
(ii) a certificate of final completion has been made by the Company's Consulting
Engineer;
(iii) 45 days following the making of such certificate have expired; and
(iv) all liens that may be claimed against any holdback required to be retained by the
Town have expired or have been satisfied, discharged or provided for by payment
into courL
(3) Notwithstanding the generality of this section, or of any other section of this Agreement, the total
of the amounts payable to the Company by the Town under subsection (2), above, shall not
exceed $56,186.
15
4. TOWN COLLECTION OF CONSTRUCTION COSTS - OTHER SERVICES
(1) lncluded within the services required to be constructed by the Company under this Agreement is
the construction of a storm sewer mostly on private lands between manhole 9 and manhole 2X
but excluding manhole 2X (the "Other Services").
(2) Within 60 days of the acknowledgement, by the Town's Director of Public Works, of the
completion of the Other Services, the Company's consulting engineer shall provide to the Town,
in a form satisfactory to the Town, a detailed summary of the actual cost, to the Company, of the
construction of the Other Services.
(3) Within 30 days of the receipt by the Town of the summary referred to in subsection (2), in a form
satisfactory to the Town, the Town's Director of Public Works shall determine and notify the
Company, in writing, of the following:
(a) the area of the lands that the Other Services shall be deemed to benefit (the "benefitting
lands") for the purposes of this section and the conditions, if any, under which such lands
shall continue to be benefitting lands;
(b) the portion of the Company's actual cost, referred to in subsection (2), that the Town shall
deem to be applicable to the benefitting lands (the "shared cost") for the purposes of this
section; and
(c) the method or methods that shall be employed to pro-rate the shared cost to the
benefitting lands,
and that determination shall be final.
(4) Prior to permitting any benefitting lands to connect into the Other Services the Town shall
endeavour to ensure that the owner of those lands pays to the Company all or an appropriate
portion of the shared cost,
(a) calculated according to the method or methods referred to subsection (2), and
(b) adjusted annually, for a maximum of five years from the date of notification referred to in
subsection (3) according to the Southam Construction Cost Index for Ontario, composite
portion.
(5) In consideration of the Town entering into this Agreement with this section included, the
Company hereby,
(a) remises, releases and forever discharges, and
(b) agrees to indemnify and save harmless, the Town, its officers and employees and their
respective heirs, executors, administrators, successors and assigns, of and from all actions
causes of action, accounts, claims, debts, damages, demands, and costs associated
therewith, arising, to arise or which may hereafter be brought against them, or any of
them, by or on behalf of the Company, or any other person, because of the provisions of
this section or any error, omission, failure or negligence in the application thereof.
16
~of Pgo*"nC'ontar,o Transfer/Deed of Land A
Form I -- L~md Reglatmflon Reform A~ 1~
(1) R~I~ ~ L~d T~ ~ ~(2) Page 1 of ~s
(3) Pr~ Bilk Pr~
I~1~1)
($) DeKdpllon This is a: Pro~ Pro~y
Division ~ ~n~h~abon ~
New Pro~erty Identifiers
Schedule ['-
Ea~'utlo~
[~) Th~ (e) Redescription (b} Schedule for: I (~) Inle~elt,/Estale Tranlfermd
D(xm~ment New Easement Additional J Fee Simple
. Description [] Parties [] Other []
Contalne Plan/Sketch []
Transfero~e) The transferor hereby transfers the land to the transferee and certifies that the transferor is st least eighteen years old and that
Date of Signature
Name(s) Signature(s)
~) Spouse{s) of Translator, s) I hereby consent to this transaction Date of Signature
Name(s) Signature(s) Y M D
(10) Trmnaferol~s) Addrees
for Sendde
Transferee{s) Date of B~rth
Y M D
THE CORPORATION OF THE
(12) Transfere~s) AddmN
forServlce Pickering Civic Centre, One The Esplanade, Pickering, Ontario L1V 6K7
(13) Transferor(s) The transferor verifies that lo the best of the transferor's knowledge and belief, this transfer does not contravene section 49 of the
Planning Act. 1983 Date of Sigrmture Date of S,gnature
Y M D Y M D
tO determine that this transfer does not contravene that section and based on the information supplied by the transferor, to the best of my knowledge
Name and ~ Y,' M i
Address of Signature ........................... ! ...... !, . , J.
Solicitor '
(14) Se41cllo~ for Transferor{a) I have investigated the title to this land and to abutting lend where relevant and I am satisfied that the title records
reveal no contravention as set out in subclause 49 21s c) ii of the Planning Act. 1983 and that to the best of my knowledge and belief this
solicito~ in good standing.
Name end Date of Signaturo
Address of Y M D
Solicitor :
Feea and Tax
(15) '~'~'~"'eam~'llf R°~I Number [ CrY' i Mun [ MaP ! Sub' Par'of Pro~ert¥ i ' i ~ Illilo
; i ~ i , , Registration Fee
Municipal Addrees of Propert~ (17) Document Pra~are4 b~.
C.M. Timothy Sheffield Land Transfer Tax
Town Solicitor
Town of Pickerlng
One The EsplaDade
Picketing, Ontario
(7) INTEREST/ESTATE TRANSFERRED
Subject to the following terms and conditions, the free, uninterrupted and unobstructed right
and easement to lay, construct, operate, maintain, inspect, alter, repair, replace, reconstruct and
remove storm drainage works together with appurtenances thereto (herein called the "works"),
in, over, along, across, upon and under the land&scribed in Box 5 (herein calJed the "lands"),
and to drain storm water in, over, along, across, upon and under the lands, together with the
right to the Transferee, its servants, agents and contraclors with all necessary vehicles, supplies
and equipment to enter onto the lands and pass and repass over the lands for the purpose of
exercising or enjoying any of the rights granted herein.
The lerms and conditions which the parties hereto covenant and agree to observe and be bound
by are as follows:
1. The Transferee shall, except in case of emergency, before commencing any work
authorized hereby, give to the Transferor forty-eight hours previous written notice
thereof, and in cases of emergency such previous notice thereof as is reasonably possible.
2. Upon completion of any work, the Transferee shall fill in all excavations, restore fences,
and restore the surface of the ground by restoring all topsoil and grass cover disturbed
thereby, and do necessary grading to ensure soil and slope stability, and remove all
equipment.
3. The Transferor shall not erect any building or structure (except a fence) on the lands, and
shall not place or remove any fill on or from any part of the lands without the previous
written consent of the Transferee.
4. The right and easement granted herein shall be subject to all leases, licences, and any
rights of use or occupation existing at the date hereof, and the Transferor may from Ihne
to lime renew or extend these or rnake new ones, so long as they do not inlerfcre
umeasonably with the right and easement herein granted.
5. The Transferor hereby releases the Transferee from any claim which may arise out of the
exercise by the Transferee of the fight and ease,nent granted hereby or which may arise
out of the existence of the storm water or the existence, operation or non-operation of the
storm drainage works provided the Transferee has complied with all of the terms and
conditions herein.
6. The Transferor shall execute such further assurances of the right and easement granted
hereby as the Transferee may reasonably request in writing.
7. The burden of this Transfer and of ail the terms and conditions contained herein shall nm
with the lands.
8. This Transfer and all of the terms and conditions contained herein shall enure to the
benefit of and be binding upon the Transferor and the Transferee and their respective
heirs, executors, achninistrators, successors and assigns.
LAND BENEIqTI','mD (DOMINANT TENEMENT)
9. The benefit of this Transfer and all of the terms and conditions contained herein shall run
with all other lands and interests in lands owned, occupied or used by the Transferee for
the p~rpose of operating and maintaining storm drainage works.
OTHI3