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HomeMy WebLinkAboutBy-law 4920/97 THE CORPORATION OF THE TOWN OF PICKERING BY-LAW NO. 4920/97 Being a by-law to authorize the execution of a Development Agreement and related documentation respecting the development of Part Lot 45, Plan 350, ?ickering, designated as Parts 2, 3, 4, 5, 6 and 7, Plan 40R-XXX)(, [Wallace, Michael and Sheila]. WHEREAS the Durham Land Division Committee made Decisions LD 32/94 and LD 33/94, approving the severance of part of Lot 45, Plan 350, Pickering, subject to conditions, one of those conditions being that the owner enter into a satisfactory Development Agreement with the Corporation for the construction of a road complete with services, pursuant to the provisions of the Planning Act, R.S.O. 1990, chapter P. 13 section 51 (6); 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 Development Agreement in the form attached hereto as Schedule A, between Michael and Sheila Wallace and The Corporation of the Town of Pickering, respecting the development of Part Lot 45, Plan 350, Picketing, designated as Parts 2, 3, 4, 5, 6 and 7, Plan 40R-XXXX, [Wallace, Michael and Sheila]. (b) The Corporation of the Town of Pickering shall acquire those lands or interests in the lands identified in Schedule A of that Development 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 Picketing of any interests in the nature of storm drainage works easements pursuant to the provisions of the Development Agreement referred to in section 1, above. BY-LAW read a first, second and third time and finally passed this 10 day of February, 1997. Wayne Arthurs, Mayor /l}ruce Taylor, Clerk Schedule A THIS DEVELOPMENT AGREEMENT made February 3, 1997, pursuant to the provisions of section 51 of the Planning Act, R.S.O. 1990, chapter P.13, BETWEEN: MICHAEL WALLACE and SHEILA WALLACE herein collectively called the "Owner" OF THE FIRST PART, - and - THE CORPORATION OF THE TOWN OF PICKERING herein called the "Town" OF THE SECOND PART. WHEREAS the Owner proposes to sever Lot 45, Plan 350, Pickering to provide for the development of two lots, and is required as a condition of the approval thereof by the Council of the Town to enter into an agreement with the Town pursuant to section 51 of the Planning~,lct, R.S.O. 1990, chapter P.13; NOW THEREFORE, THIS AGREEMENT WlTNESSETH THAT, in consideration of the Council of the Town issuing its clearance of the conditions imposed by the Durham Land Division Committee in its decisions LD32/94 and LD33/94, covenants hereinafter expressed, the Parties hereto covenant and agree one with the other as follows: PART 1 - INTERPRETING AND APPLYING THIS AGREEMENT 1. LAND AFFECTED The land affected by this Agreement (the "Lands") are those parts of Lot 45, Plan 350, Picketing, designated as Parts 2, 3, 4, 5, 6 and 7, Plan 40R-XXXXX. 2. STATUS OF THIS AGREEMENT This Agreement is entered into and executed by the Owner for the purpose of having the Town act in reliance on the covenants by the Owner contained herein and the Owner hereby waives any right or claim which it now has or may hereinafter acquire which is inconsistent with the terms of this Agreement. 3. INTERPRETATION (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. 4. BINDING PARTIES This Agreement shall be enforceable jointly and severally by and against the Parties hereto, their heirs, executors, administrators, successors and assigns, and the Agreement and all the covenants by the Owner contained herein shall run with the Lands for the benefit of the Town and the land or interests in land owned by the Town upon the registration of this Agreement. 5. NOTICE (!) Any notice required to be given hereunder may be given by personal delivery or registered mail, (a) in the case of the Owner, to either Michael and Sheila Wallace 527 Rougemount Drive Picketing, Ontario L1W 2C1 and (b) in the case of the Town, to The Town Clerk The Corporation of the Town of Pickering Pickering Civic Complex One The Esplanade Picketing, Ontario L1V 6K7 (2) Each Party may redesignate the person(s) 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. 6. LICENCE TO ENTER The Owner shall retain a licence from any subsequent purchaser of the Lands, or any part thereof, to enable the Owner and the Town's inspectors to enter upon the Lands in order to comply with the provisions of this Agreement. 7. OWNER'S GENERAL UNDERTAKING The Owner 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. NE' XE E Every provision of this Agreement by which the Owner is obligated in any way shall be deemed to include the words "at the expense of the Owner and at no expense to the Town" unless the context requires otherwise. PART 2 - CONSTRUCTING THE TOWN'S SERVICES 9. CONSULTING ENGINEERS (1) The Owner shall retain a Professional Engineer as the Consulting Engineer of the Owner to carry out all the necessary engineering and to supervise the work required to be done for the development and construction of the project. (2) Such Consulting Engineer, or any successor thereto, shall continue to be retained until the work required to be done for the development and construction of the project is completed and formally accepted by the Town. (3) The Owner may change from one Consulting Engineer to another at any time or times during the development and construction of the project, so long as the Owner has a Consulting Engineer retained at all times. 2 10. CONSTRUCTION / INSTALLATION OF TOWN WORKS AND SERVICES (1) The Owner shall obtain all required approvals and shall construct or install to Town standards and shall provide to the Town, complete in every detail, the following Town works and services (the "Works") as shown on plans submitted by the Owner'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) connections to street storm sewers on the roads adjacent to the Lands complete with all appurtenances; (b) a storm water drainage and management system serving the Lands, other lands outside the Lands and outside that Part, but which drain through the Lands or through that Part or through both the Lands and that Part, complete with detention or retention facilities, quality control devices and outlets; (c) a road on the portion of the lands being designated as Parts 4, 5, 6 and 7, Plan 40R-XXXXX; (d) a paved driveway approach between the curb and sidewalk; (e) a permanent turning circle to the satisfaction of the Town's Director of Public Works to be located within Part 6, Plan 40R-XXXXX at the eastern terminus of the extension of Mountain Ash Drive; and (f) street tree planting on the road referred to in (a). (2) If at any time prior to the acceptance of the Works, the Town's Director of Public Works is of the opinion that additional works are necessary to provide adequately any of the public services required by the project, the Owner shall construct, install or perform such additional works at the request of the Director. (3) All Works shall be constructed and installed in accordance with the Town's specifications and in a good and workmanlike manner under the supervision of the Owner's Consulting Engineer and under the observation of the Town's inspectors. (4) The Owner 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 Owner 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. 11. GENERAL REGULATIONS RESPECTING SERVICING (1) The construction of Town boulevards shall include the construction of paved driveway approaches between the curb and sidewalk or, where no sidewalk is to be provided, between the curb and the lot line. (2) Where the construction or installation of services involves a continuation or extension of existing services, the Owner shall join into the existing services, including adjustment of grades where necessary, in a good and workmanlike manner. (3) The Owner 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 works in the project without the written consent of the authority responsible for such lands. (4) The Owner shall not burn nor permit to be burned any refuse or debris within the project or adjacent to it. (5) 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 required by this Agreement, and the cost of such tests shall be paid by the Owner within 30 days of invoices being rendered. 3 (6) The Owner shall pay, within 30 days of invoices being rendered, the costs of, (a) relocating any existing services or utilities required to be relocated by the construction or installation of Works, services, or utilities in the project, and (b) moving any Works, services or utilities installed in driveways or so close thereto, in the opinion of the Town's Director of Public Works, as to interfere with the use of the driveway. (7) Unless otherwise provided herein, the Owner shall perform any work required to be done under this Agreement to the specifications of the Town in effect at the date hereof. (8) The Owner shall provide and erect temporary signs of such nature and at such locations as designated by the Town's Director of Public Works. 12. ELECTRICAL SERVICES Where electricity, cable television service or telephone service is to be provided to any lot or block in the project, it shall be provided underground and in accordance with the standards and specifications of Picketing Hydro-Electric Commission, Trillium Cable T.V. Limited or Bell Canada, as the case may be. 13. TREE INVENTORY / TREE PRESERVATION PROGRAM (1) The Owner shall submit a Tree Inventory and a Tree Preservation Program prepared by a qualified expert, and based upon the Town-approved Grading Control Plan, indicating which existing trees in the project may be preserved to the Town's Director of Public Works for the review and approval of the Town's Director of Planning and Director of Parks and Facilities, and shall implement the Program as approved only. (2) Until the Tree Preservation Program is approved the Owner shall not commence, nor allow to be commenced, any aspect of the development of the lands in the project, including the removal of any tree. (3) In the event that any tree required to be preserved by the approved Tree Preservation Program is removed or is, in the opinion of the Town's Director of Parks and Facilities, damaged to such an extent that its value or longevity is decreased or is likely to be decreased, then the Owner shall replace that tree with a tree of a height, diameter and species determined by the Director; such replacement shall be at no cost to the Town. (4) The Owner's liability under subsection (3) shall continue until, (a) where the lands upon which the tree is located comprise a residential building lot, twelve months after the completion of the sodding on the lot, or (b) where the lands upon which the tree is located comprise lands other than a residential building lot, the issuance by the Town of the Final Acceptance Certificate. 14. GRADING CONTROL PLAN / LOT DRAINAGE AND SODDING (1) The Owner shall submit to the Town, for the approval of the Town's Director of Public Works, a Grading Control Plan and geotechnical soils analysis prepared by the Owner's Consulting Engineer, establishing the proposed grading of the lands in the project to provide for the proper drainage thereof and the drainage of all adjacent lands which drain through the lands in the project. (2) The Grading Control Plan shall be prepared in accordance with the Town's Lot Drainage Specifications and shall not provide for the drainage of surface run-off water onto Town-owned land unless provision is made for the installation by the Owner, at no cost to the Town, of suitable swales and catch basins to manage adequately, in the opinion of the Town's Director of Parks and Facilities, that surface run-off water. (3) The Owner shall grade all the lands in the project in accordance with the approved Grading Control Plan, ensuring that sufficient topsoil remains as cover on all areas of the project intended for sodding, seeding, or other planting. 4 (4) If the Town determines that, (a) grading has not been done in accordance with the Grading Control Plan, (b) grading has been done in accordance with the Grading Control Plan but drainage problems remain, or (c) sufficient topsoil has not been left in the appropriate areas, the Owner shall re-grade the project, or part thereof affected, adding a sufficient amount of topsoil if necessary, or construct catch basins, swales or other structures as may be necessary to correct such problems, as directed by the Town's Director of Public Works. 15. AUTHORIZATION TO COMMENCE WORK The Owner shall not commence the construction or installation of any of the Works 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 Owner and all Encumbrancers 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 Owner from the Ministry of the Environment, the Ministry of'Natural Resources and the Metropolitan Toronto and Region Conservation Authority, or a certificate has been provided by the Owner's Consulting Engineer that no such approvals or permits are required; and (d) conveyance of good title, in triplicate, free and clear of all encumbrances, to the Town, of all necessary Easements and Transfers of interests in lands lying outside of the Lands as identified in Schedule A; and (e) the Owner's Solicitor has provided, at the Owner's expense, a certificate of clear title, to the satisfaction of the Town Solicitor, of all the lands and interests of lands conveyed to the Town, lying outside of the lands, as set out in Schedule A hereto. 16. USE OF WORKS PENDING COMPLETION / EMERGENCY REPAIRS (1) Any of the Works 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 Works are designed, and such use shall not be deemed an acceptance of any of the Works by the Town, nor an assumption by the Town of any liability in connection therewith, nor a release of the Owner from any of its obligations under this Agreement. (2) The Town may make emergency repairs at any time to any of the Works and may for this purpose enter the Lands at any time; such repair or entry shall not be deemed an acceptance of any of the Works by the Town, nor an assumption by the Town of any liability in connection therewith, nor a release of the Owner from any of its obligations under this Agreement. 17. ROAD MAINTENANCE AND REPAIR (1) Throughout the term of this Agreement, the Owner shall, (a) maintain all Town roads outside the project, including boulevards, in a mud and dust free condition and flee of obstructions, where the source or cause of the mud, dust or obstruction is an operation or operations related in any way to the development of the project; and (b) repair all Town roads outside the project, including boulevards, where damage has occurred as a result of an operation or operations related in any way to the development of the project. 5 (2) The Owner, within 24 hours of verbal notification by the Town to it or its representatives, shall undertake such works as are necessary to clean, clear, repair, plow or salt any Town road requiring such work in the opinion of the Town's Director of Public Works or his designate. 18. qJQMPLETION DATES - TOWN WORKS AND SERVICES The Owner shall complete the Works in accordance with the following time limits: (a) street storm sewer connections - one year from date of Authorization to Commence Work; (b) storm water drainage and management system - one year from date of Authorization to Commence Work; (c) boulevards and sidewalks on adjacent roads - prior to the occupancy of any building on the Lands; (d) street tree planting - two years from date of Authorization to Commence Work, following the satisfactory completion and testing of all of which, and the approval thereof by the Town, the Town shall issue to the Owner a Completion Acceptance Certificate. 19. FAILURE TO COMPLETE / IMPROPER PERFORMANCE (1) If, in the opinion of the Town's Director of Public Works, the Owner is not constructing or installing the Works, 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 Works, 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 Works 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 Owner 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 Works or rectification of the default, at the cost and expense of the Owner or his surety, or both. (2) In cases of emergency, in the opinion of the Director of Public Works, such Director may act without prior notice but the Owner 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 Owner, together with a 25 per cent engineering and administration fee, by drawing upon the letter of credit filed with the Town under section 21. 20. GUARANTEE OF WORKS. WORKMANSHIP AND MATERIALS (1) The Owner shall guarantee all Works, workmanship and materials employed or used in the construction, installation or completion of Works, 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 Owner during the maintenance period shall include the maintenance of the Works, including the rectification of any unsatisfactorily installed Works. (3) Prior to the end of the maintenance period, the Owner's Consulting Engineer shall submit to the Town, (a) "as built" construction drawings for the Works complete as per Town standards, together with that Consulting Engineer's certificate that those drawings accurately depict the Works as constructed; and (b) a statement by an Ontario Land Surveyor that all standard iron bars as shown on the registered plan, survey monuments at all block comers, at the ends of all curves (other than corner roundings) and at all points of change in direction of streets in the plan have been found or re-established. (4) Prior to the end of the maintenance period, the Town will re-inspect the Works and if, (a) the Works are acceptable; and (b) the Owner has performed all of its obligations under the terms of this Agreement to the satisfaction of the Town, the Town will issue to the Owner a Final Acceptance Certificate at which time the Town will assume ownership of the Works 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 Works are not acceptable, or (b) the Owner has not performed all of its obligations under the terms of this Agreement to the satisfaction of the Town, the Town will advise the Owner 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 Works and if, (a) the Works are acceptable; and (b) the Owner has performed all of its obligations under the terms of this Agreement to the satisfaction of the Town, the Town will issue to the Owner a Final Acceptance Certificate at which time the Town will assume ownership of the Works 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 Works are still not acceptable, or (b) the Owner 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 19, or both. 21. pERFORMANCE AND MAINTENANCE_ SECURITy (1) Before this Agreement will be executed by the Town, the Owner 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 Works; (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 Works, 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 Owner may, at any time after the first 50 per cent, in value, of Works 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. 7 (3) Upon written verification from the Director of Public Works that the construction, installation or performance of the Works 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 Owner'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 Works, 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 Owner 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 Owner any necessary assurance to effect the reduction. 22. OWNER'S GENERAL INDEMNITY Until the Town's Director of Public Works has issued the Final Acceptance Certificate for the Works, the Owner shall indemnify 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 servicing the Lands as required under this Agreement. 23. OCCUPATIONAL HEALTH AND SAFF, TY (1) The Owner certifies that it is aware of its duties and obligations under the Occupational Health and Safety Act, 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 Owner shall, (a) act safely and comply in all respects with the Act, and (b) ensure that its employees, contractors, subcontractors and their employees act safely and comply in all respects with the Act. (3) The Owner 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 Owner 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 Owner, its employees, contractors, subcontractors and their employees under the Act. (6) In addition to the Owner's general indemnification of the Town pursuant to section 22, above, the Owner shall indemnify and save harmless the Town, (a) from any loss, inconvenience, damage or cost to the Town which may result from the Owner 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 Owner or any of its employees, contractors, subcontractors and their employees in the performance of any work or service required pursuant to this Agreement. 24. LIA__BILITy INSURANCE POLICY / PROVISION FOR DEDUCTIBLE (1) Before this Agreement will be executed by the Town, the Owner 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, all of which shall be subject to the approval of the Town Solicitor. (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 amount, the Owner 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 Owner 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 Owner 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 Owner from liability for claims not covered by the policy or which exceed its limits, if any, for which the Owner may be held responsible. 9 PART 3 - DEVELOPING THE PROJECT 25. CONSTRUCTION AND OCCUPANCY OF BUILDINGS (1) No building permit shall be issued for any building or part of a building on the Lands until sewer and water facilities are available, and in the opinion of the Town's Director of Public Works, capable of providing adequate service. (2) No building or part of a building on the Lands shall be occupied except upon the issuance of a municipal occupancy permit. (3) No application for a municipal occupancy permit for a building or part of a building shall be made except upon the following conditions: (a) storm sewer, sanitary sewer and water facilities are installed and in operation to adequately serve such building or part thereof; (b) electric service is completed and in operation; and (c) such curbs, as in the opinion of the Town's Director of Public Works, are required to be completed prior to occupancy have been constructed on the road immediately in front of the building or part thereof and extended to an existing maintained public road. 26. DESIGN PLANNING - BUILDINGS AND NOISE ATTENUATION STRUCTURES (1) Prior to the issuance of any building permit for the construction of any building on the Lands and the construction of any noise attenuation structure in or adjacent to the project, the Owner shall submit to the Town's Director of Planning, for approval, a report outlining siting and architectural design objectives for the project. (2) That report may be required, at the Director's option, to provide the following information: (a) building massing; (b) streetscape; (c) exterior materials and colours; (d) architectural style; (e) visual variety; (f) energy conservation measures; and (g) any other data or information reasonably required. (3) Prior to the issuance of each building permit for the construction of a building on the Lands, the Owner shall submit to the Town's Director of Planning, for approval, site plans and architectural drawings for that building. (4) Those plans and drawings may be required, at the Director's option, to provide the following information: (a) the location of all buildings and structures to be erected and the location of all facilities and works associated therewith; (b) the location of landscaping features, including trees to be preserved; (c) streetscape for front, rear and flankage elevations at a scale acceptable to the Director; (d) stmetscape to show all street furniture and vegetation; (e) the relationship of buildings by blocks; and (f) any other data or information reasonably required. 27. SPECIFIC PROVISIONS RESPECTING DEVEI, OPMI~NT The Owner shall comply with any specific provisions respecting the development of this project set out in Schedule C. 10 PART 4 - FINANCIAL MATTERS 28. EXPIRY OF SECURITIES (1) Should any letter of credit security required to be provided hereunder expire before the Town releases the Owner from the terms and conditions hereof, the Owner 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. 29. _PAYM_ENT OF LIENS AND OTHER CLAIMS (1) The Owner shall discharge or vacate any liens or claims filed with the Town or registered on title to any Town-owned 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 Owner shall file with the Town a Statutory Declaration stating that, (a) all materials have been supplied and all services and works have been completed in the project with respect to the construction and installation of Works and other services; (b) all accounts for work or service performed and materials placed or furnished upon or in respect of the construction and installation of Works and other services in the project 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 Town-owned land; (c) there are no judgments or executions filed against the Owner; (d) nothing is owed by the Owner or claimed against it for unemployment insurance deductions, income tax deductions, or by way of contribution or assessment under the Workers' Compensation Act; (e) the Owner 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 Owner; and (f) 45 days have passed since the completion of the construction, installation, and last rectification of the Works and services. 30. PAYMENT OF INTEREST ON OVERDUE AMOUNTS PAYABLE The Owner 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. 31. PAYMENT OF REALTY AND BUSINESS TAXES / LOCAL IMPROVEMENT CHARGES (1) The Owner shall pay in full as they come due all realty and business taxes assessed against the Lands or against the Owner as required by law from time to time. (2) Before this Agreement will be executed by the Town, the Owner shall commute and pay to the Town or to the Regional Municipality of Durham all local improvement charges assessed against the Lands. 11 32. PAYMENT OF ENGINEERING. LEGAL AND REGISTRATION FEES (1) Before this Agreement will be executed by the Town, the Owner 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 Owner shall pay by certified cheque to the Town a Development 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) Prior to the registration of this Agreement the Owner shall pay all registration costs incurred by the Town relating in any way to the registration of this Agreement, or any other documentation relating to this project, including transfers, in the Land Registry Office. PART 5 - TRANSFERS AND REGISTRATIONS 33. TRANSFERS OF LANDS OR INTERESTS IN LANDS (1) Upon executing this Agreement, the Owner shall convey or cause to be conveyed to the Town, free and clear of all encumbrances and at no cost to the Town, all of the lands or interests in lands identified in Schedule A for the purposes set out therein. (2) The Owner 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 for which they are being conveyed as set out in Schedule A. (3) Any Transfer/Deed given pursuant to this Agreement shall be in a form acceptable to the Town Solicitor and any Transfer/Deed of a storm drainage works easement shall contain the Storm Drainage Works Easement Schedule set out in Schedule A. (4) The Town may complete or alter any description of land in this Agreement or in any Transfer/Deed given pursuant to this Agreement so as to make the description correspond with the proper description of the land. 34. REGISTRATION OF AGREEMENT (1) This Agreement shall be registered by the Town in the Land Registry Office for the Land Titles Division of Durham (No. 40). (2) Prior to the registration of this Agreement, the Owner shall pay all registration costs relating in any way to the registration of this Agreement, or any other documentation relating to this project. (3) Prior to the registration of this Agreement, the Owner's Solicitor will provide, at the Owner's expense, a certificate of title, to the satisfaction of the Town Solicitor, of all the lands and interests of lands conveyed to the Town as set out in Schedule A hereto. (4) The Owner shall give to every purchaser of the Lands or any part of the Lands actual notice of the existence and the terms of this Agreement and shall include an acknowledgement in any offer to purchase or other similar document dealing with the Lands, or any part of them. (5) The Owner shall indemnify and save harmless the Town from any loss, inconvenience or damage which may result to the Town from the Owner's failure to comply with subsection (2) and against any action or claim made against the Town by any person other than the Owner arising out of the execution by the Town of this Agreement. (6) The Owner shall execute such further assurances of the rights hereby granted as may be deemed necessary by the Town. 12 IN WITNESS WHEREOF the individuals comprising Owner have hereunto affixed their hands and seals, certifying as they do so that they are each at least eighteen years of age and that they are spouses of one another, and the Town has hereunto affixed its Corporate Seal attested by the hands of its authorized officers. SIGNED, SEALED AND DELIVERED In the presence of Michael Wallace Seal Sheila Wallace Seal THE CORPORATION OF THE TOWN OF PICKERING Wayne Arthurs, Mayor Bruce Taylor, Clerk ENCUMBRANCER - The Encumbrancer hereby postpones any rights or interests which it has in the Lands with the intent that this Agreement shall take effect as though executed and registered prior to the creation of any such right or interest and prior to the execution and registration of any mortgage, agreement or other document creating or defining any such right or interest; And the Encumbrancer hereby covenants and agrees with the Town that this Agreement and any conveyance, easement or other document given pursuant to this Agreement, shall have priority over the rights of the Encumbrancer in the Lands with the intent that the Encumbrancer or anyone claiming under it shall at no time exercise in relation to the Lands any right, title or claim which could not be exercised by the Owner by reason of the terms of this Agreement. Dated at Toronto, Ontario, this day of ,1997. SIGNED, SEALED AND DELIVERED We have authority to bind the Corporation. 13 SCHEDULEA TRANSFERS OF LANDS OR INTERESTS IN LANDS OR CREDITS IN LIEU THEREOF (Section 33) 1. CONVEYANCES REQUIRED TO BE MADE TO THE TOWN Land 1,O be Conveyed Purpose lnteresl~ ~o be Conveyed Part Lot 45, Plan 350 Road Purposes Fee Simple (Part 6, Plan 40R-XXXXX) Part Lot 45, Plan 350, Reserves Fee Simple Part 4, 5 and 7, Plan 40R-XXXXX Any portion of the Lands Storm drainage works Easement determined by the Town's Director of Public Works Any other lands outside the Storm drainage works Easement Lands determined by the Town's Director of Public Works 2. PROVISION OF PARKLAND The Owner shall, prior to the registration of this Agreement, (a) obtain a written appraisal, prepared by a professional land value appraiser, acceptable to the Town, of the value of the land, and pay in lieu of parkland revenue the sum equal to 5% of that value; or (b) the sum of $2,800 in lieu of a parkland contribution. 3. STORM DRAINAGE WORKS EASEMENT REFERENCE PLANS (1) The Owner shall obtain and deliver to the Town one draft copy of each proposed reference plan required to effect the conveyance of any easement or easements required under section 1 of this Schedule within 30 days of the Town's request to do so, and the provisions of subsections (2) and (3) will apply. (2) Upon the completion of the construction and installation of the storm drainage works within each easement shown on any proposed reference plan, the Owner's Consulting Engineer shall advise the Town's Director of Public Works of the actual location of the works in relation to the proposed easement or easements, and if the Director is satisfied with the actual location of the works, the Owner 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 works in relation to the proposed easement or easements, the Owner 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. 4. STQRM 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: 14 (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. 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 run 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 BENEFITED (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 purpose of operating and maintaining storm drainage works. 15 SCHEOULEB REQUIRED FORM FOR PERFORMANCE AND MAINTENANCE SECURITY LETTER OF CREDIT (Section 21 ) To: The Corporation of the Town of Pickering Pickering Civic Centre One The Esplanade Picketing, Ontario LI¥ 6K7 We hereby authorize you to draw on [name of bank], [address of bank1, for account of [name of company or companies obtaining security] up to an aggregate amount of [amount of security in figures and in fulll available by drafts at sight for 100% of demand as follows: Pursuant to the request of our customers(s), the said [name of company or companies obtaining security], 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 wordsl 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 inquiring whether you have a right as between yourself and our said customer(s or any of them) to make such demand, and without recognizing any claim of our said customer(s or any of them). Provided, however, that you are to deliver to [name of bank[, [address of bank], 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 Development Agreement dated [date of Agreement[, between [name of signatories to Agreement, other than Town and Encumbrancer(s)l and The Corporation of the Town of Picketing; this Letter of Credit is given as the Performance and Maintenance Security required by section 21 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 Credit] 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 bank]. DATED this day of ., 19 Instructions for completing Letter of Credit: 1. Letter of Credit must be typed on bank lenerhead. 2. Information required in square brackets must be provided where indicated, without brackets. 3. Phrases shown in round brackets must be included without brackets where there are two or more companies comprising the customer. 4. The date in the sixth paragraph must be at least one year from the date of the Letter of Credit. 5. The date in the seventh paragraph must be the same as the date in the sixth paragraph. 6. Bank signatories must show name, printed or typed, and title, in addition to signature. 16 SCHEDULE C ENGINEERING AND LEGAL FEES (Section 32) SPECIFIC PROVISIONS RESPECTING DEVELOPMENT (Section 27) 1. DEVELOPMENT CHARGES PAYABLE (1) Until and including October 7, 1997, the development charges payable under the Town's Development Charges By-law 3854/91 for each single or semi-detached dwelling unit within this project is $5,502. (2) From and after October 7, 1997, the amount of the development charge payable for the dwelling units within this project will be as set in accordance with the Town's Development Charges By-law in existence at the date of such payment. 2. ENGINEERING DRAWING INSPECTION FEE PAYABLE The amount of the Engineering Drawing Inspection Fee payable for this project is $70. 3. DEVELOPMENT AGREEMENT PROCESSING FEE PAYABLE The amount of the Development Agreement Processing Fee payable for this Agreement is $2,140 [$2,000 plus $140 GST]. 4. EXPECTED NUMBER OF DWELLINGS (1) This Agreement has been entered into with the expectation that two dwellings am to be constructed on the Lands, one each on Pans 2 and 3, Plan 40R-XXXXX. (2) If more or less than two dwellings are to be constructed in this project, the Town at its sole discretion may require the Owner to obtain new approvals and authorizations under this Agreement and may prohibit any development until the new approvals and authorizations are obtained. 5. B1.JILDING PERMITS The Owner acknowledges and agrees that no building permits will be issued for Parts 2 or Part 3, Plan 40R- XXXXX until such time as the road, sewers and turning circle has been fully constructed on Pans 4, 5, 6 and 7, to the satisfaction of the Town's Director of Public Works and until the lands set out as Parts 4, 5, and 6 have all been dedicated as public highways. 6. MOUNTAIN ASH DRIVE SHARED SERVICING COSTS (1) The Owner agrees to pay to the Town its appropriate pro-rated portion of the shared service costs for the construction of the southward extension of the new road to be developed with the northerly abutting Draft Plan of Subdivision 18T-90005 across the frontage of the two severed parcels, including a temporary turning circle and installation of municipal services. (2) Notwithstanding the above, the Town acknowledges that the purchase price of those parts of Lot 45, Plan 350, Picketing, designated as Parts 2, 3, 4, 5, 6 and 7, Plan 40R-XXXXX by Garthwood Homes Limited from Sheila and Michael Wallace, has been adjusted to reflect the pro-rated cost of the construction of the above-mentioned road and installation of municipal services. (3) Accordingly, provided that Garthwood Homes Limited delivers to the Town a written confirmation acknowledging to the Town that the conveyance of those parts of Lot 45, Plan 350, Picketing, designated as Parts 2, 3, 4, 5, 6 and 7, Plan 40R-XXXXX has been completed and that the purchase price included the pro-rated portion of the construction and servicing costs of the road, then the Town will deem the Owner to have complied with section 5(1) above. D9606 17