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HomeMy WebLinkAboutBy-law 4663/95 THE CORPORATION OF THE TOWN OF PICKERING BY-LAW NO, 4663/95 Being a by-law to authorize the execution of an Amending Servicing Agreement and related documentation respecting the construction ora 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 Picketing, 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 over the subject lands and other lands; and WHEREAS, pursuant to the provision of the MunicipalAct, R.S.O. 1990, chapter M.45, section 191(1), the Council of The Corporation of the Town of Pickering 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 an Amending 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 Pickering. (b) The Corporation of the Town of Pickering shall acquire those lands or interests in lands referred to and identified in Schedule A of that Amending 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 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 l(b) of this By-law. BY-LAW read a first, second and third time and finally passed this 8th day of August, 1995. Wayne Arthffrs, Mayor TOWN OF PICKE~ql;qG ~ Schedule A THIS AMENDING SERVICING AGREEMENT made August 8, 1995, BETWEEN: PORTCULLIS GATE INC. herein called the "Company" OF THE FIRST PART, THE CORPORATION OF THE TOWN OF PICKERING herein called the "Town" OF THE SECOND PART. WHEREAS the Company proposes to provide storm sewer servicing to all of Lot 4, Plan 456, Pickering, 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 8, 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 revised plans and drawings and the covenants hereinafter expressed, the Parties hereto covenant and agree one with the other as follows: 1. In this Agreement, "Servicing Agreement" means the agreement between the Company and the Town dated August 2, 1994. 2. The Company and the Town acknowledge and agree that they are bound by the terms and conditions of the Servicing Agreement and shall continue to be bound by it, as it is amended hereby. 3. The Servicing Agreement is hereby amended by replacing section 1(1) with the following: 1. STATUS OF THIS AGREEMENT (1) If the servicing required under this Agreement is not begun on or before September 15, 1995, this Agreement shall be null and void and of no further effect, and the Town shall not be liable for any expenses, costs or damages suffered by the Company as a result thereoJ7 4. The Servicing Agreement is hereby amended by replacing section 2(2) with the following: 2. ~ (2) Schedules A, B, C and D, attached hereto shall form part of this Agreement. 5. The Servicing Agreement is hereby amended by replacing section 25 with the following: 25. TRANSFER OF EASEMENTS (1) Upon execution of 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 Schedules A and D 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 lan&for the purposes set out in Schedules A and D for which the interests therein are 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 schedules set out in Schedules A and D, as the case may be. (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. 7. The Servicing Agreement is hereby amended by replacing section 3(1) in Schedule C with the following: 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 or the lands immediately adjacent thereto over which the Town is being granted an easement pursuant to paragraph l of Schedule D hereto, between and including both manholes 2X and the sewer outfall (the "Kingston Road Services '). 8. The Servicing Agreement is hereby amended by adding to it Schedule D - Transfer of Easements (From Parties other than the Company) attached hereto as Schedule A and forming part of this Agreement. 9. The parties hereto agree that all other terms and provisions of the Servicing Agreement shall remain unchanged and shall remain in full force and effect. IN WITNESS WHEREOF the Parties herein have hereunto affixed their respective corporate seals, attested to by the hands of their proper authorized officers. SIGNED, SEALED & DELIVERED THE CORPORATION OF THE TOWN OF PICKERING Wayne Arthurs, Mayor Bruce Taylor, Clerk PORTCULLIS GATE 1NC. 2 TRANSFERS OF EASEMENTS (From Parties other than the Company) 1. TRANSFERS OF EASEMENTS REQUIRED TO BE MADE TO THE TOWN Land to be Conve. ved Purpose Interest to be Conveyed Part Lot 6, Plan 4.56, Storm drainage works Easement and Part Lot 28, Range 3, B.F.C., Pickering (Part 2, Plan 4OR-16379) Part of Lot 28, Range 3, B.F. C., Pickering Storm drainage works Easement (Parts 4, 5, 6 and 7, Plan 40R-16379) 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 I 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 lan&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. All work done by the Transferee, its servants, agents' and contractors on or under the lands shall be done expeditiously and in a workmanlike manner, consistent with the nature and scope of the work to be done, and so as to cause the least possible interference with the use or operation of the lands and of the property owned by the Transferor that is adjacent to the lands. The Transferee shall be responsible for any damage caused by it, its servants, agents and contractors in performing any such work to any part of the lands or any other property of the Tramferor and shall repair and restore such damage, fill in all excavations, restore fences, restore all landscaping, restore all paved areas, and restore the surface of the ground by restoring all topsoil and grass cover disturbed by such work, and do necessary grading to ensure soil and slope stability, in each case to the same condition as prior to the work performed by it and using materials of a like or better quality to make such repair or restoration, and shall remove all equipment, all at the expense of the Transferee. All such repair and restoration shall be satisfactory to the Transferor, acting reasonably. 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. The foregoing shall not restrict the Transferor from, and the Transferee consents to, landscaping and paving the lands from time to time and utilizing the lands or any part thereof as a parking lot subject to compliance by the Transferor with applicable site plan control requirements of the Town of Pickering. 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. Intentionally deleted 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 Tramferor 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 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. 4 ORIGII~kL SERVICING ~GtREEMENT 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 INC., herein called the "Company" OF THE FIRST PART, THE CORPORATION OF THE TOWN OF PICKERING herein called the "Town" OF THE SECOND PART. WHEREAS the Company proposes to provide storm sewer servicing to all of Lot 4, Plan 456, Pickering, 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 8, 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 further 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. 2. 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. 3. BINDING PARTIES 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 1Z4 and (b) in the case of the Town, to The Town Clerk The Corporation of the Town of Picketing Pickering Civic Complex One The Esplanade Pickering, 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. 5. LICENCE TO ENTER 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. 2 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. 3 (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. (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. AUTHORIZATION 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, 4 (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; (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. F_AlLURE 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, (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 6 B and in an amoum 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; (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. (2OMPANY'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 all 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 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 Company 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 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, 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 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 fumished 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; 9 (c) there are no judgments or executions filed against the Company; (d) nothing is owed by the Company 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 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. 10 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 TOVv'N OF PICKERING Wayne Arthurs, Mayor Bruce Taylor, Clerk 11 TRANSFERS OF EASEMENTS (Section 25) 1. TRANSFERS OF EASEMENTS REQUIRED TO BE MADE TO THE TOWN I~ purpose Interest to be Conveyed Part Lot 28, Range 3, Storm drainage works Easement B.F.C., Picketing (Part 27 and 43, Plan 40R-15653) Part Lot 4, Plan 456, Pickering Storm drainage works Easement (Parts 30 and 41, Plan 40R-15653) 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 ofexereising 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 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 BENEFITTED (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. 13 SCHEDULE B REQUIRED FORM FOR PERFORMANCE AND MAINTENANCE SECURITY LETTER OF CREDIT (Section 17) To: The Corporation of the Town of Pickering Pickering Civic Centre One The Esplanade Pickering, Ontario L1V 6K7 We hereby authorize you to draw on [name of bank], [address of bank[, for account of Portcullis Gate Inc. 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 customer, the said Portcullis Gate Inc., we [name of bank[, [address of bank], 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 [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 Servicing Agreement dated August 2, 1994, between Portcullis Gate Inc. and The Corporation of the Town of Pickering; 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 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 lname of bank], [address of bank]. DATED this day of ,1994. Instructions for completing Letter of Credit: 1. Letter of Credit must be typed on bank letterhead. 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 SCHEDULE C 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 court. (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) Included 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