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HomeMy WebLinkAbout20 111 West Ridge on the Lake (West Ridge on the Lake Inc.) Subdivision Agreement By-law
THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE
BY-LAW
No. 2020 - 111
BEING A BY-LAW TO AUTHORIZE THE EXECUTION OF A SUBDIVISION
AGREEMENT WITH WEST RIDGE ON THE LAKE INC. CONCERNING PART
OF LOTS 21-24, CON A, GEOGRAPHIC TOWNSHIP OF KINCARDINE
MUNICIPALITY OF KINCARDINE
(West Ridge on the Lake)
WHEREAS Section 51 (26) of the Planning Act 1990, Chapter 13 authorizes
municipalities to enter into subdivision agreements as a condition to the approval
of a plan of subdivision;
AND WHEREAS Section 8 (1) and 9 of the Municipal Act, 2001, S.O. 2001, c.
25, as amended, provides that the powers of a municipality under this or any
other Act shall be interpreted broadly so as to confer broad authority on the
municipality to enable the municipality to govern its affairs as it considers
appropriate and to enhance the municipali
issues and a municipality has the capacity, rights, powers and privileges of a
natural person for the purpose of exercising its authority under this or any other
Act;
AND WHEREAS the Council of The Corporation of the Municipality of Kincardine
deems it advisable to enter into a subdivision agreement with West Ridge on the
Lake Inc. for that property being composed of Part of Lots 21-24, Con A,
Geographic Township of Kincardine, Municipality of Kincardine, County of Bruce,;
NOW THEREFORE the Council of The Corporation of the Municipality of
Kincardine ENACTS as follows:
1. That The Corporation of the Municipality of Kincardine enter into a
subdivision agreement, subject to compliance with all Municipal
requirements, with West Ridge on the Lake Inc. to ensure appropriate
development of those lands described as Part of Lots 21-24, Con A,
Geographic Township of Kincardine, Municipality of Kincardine, County of
Bruce, and being more particularly described in the subdivision agreement
attached to this by-.
2. That the Mayor and Chief Administrative Officer be authorized and
directed to sign and execute, on behalf of The Corporation of the
Municipality of Kincardine, the subdivision agreement with West Ridge on
the Lake Inc. attached to this By-law , as well as any other
documents required to bind The Corporation relating to this subdivision.
3. This By-law takes effect the date of passage by Council and comes into
force and effect pursuant to the provisions of the Planning Act, 1990.
4. This by-West Ridge on the Lake (West Ridge on
the Lake Inc.) Subdivision Agreement By-.
Page 2
West Ridge on the Lake (West Ridge on the Lake Inc.)
Subdivision Agreement By-law
By-law No. 2020 - 111
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READ a FIRST and SECOND time this 10 day of August, 2020.
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READ a THIRD TIME and FINALLY PASSED this 10 day of August, 2020.
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__________________________ __________________________
Mayor Clerk
This Is Schedule' A •to By-law
NO. -!I I passed the /O'r'I day
of AALsf- 20 ao
THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE
SUBDIVISION AGREEMENT
between
West Ridge on the Lake Inc.
-and-
THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE
Dated ,436It� ,2020
The Corporation of the Municipality of Kincardine
1475 Concession 5,RR5
Kincardine,ON N2Z 2X6
THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE
Section 1-Interpretation 2
1.1 Definitions 2
1.2 List of Schedules 3
Section 2-Order of Procedure 3
Section 3--Installation of Services 5
3.1 General 5
3.2 Municipality's Legal,Planning,and Engineering Costs 5
3.3 Developer's Engineer 5
3.4 Works to be Installed 6
3.5 Approval of Plans 6
3.6 Notification of Commencement 6
3.7 Progress of Works 6
3.8 Scheduling of Works 7
3.9 Contractor 7
3.10 Utility Costs and Charges 7
3.11 Access Roads 7
3.12 Movement of Fill 7
3.13 Damage to Existing Plant 8
3.14 Signs 8
3.15 Testing 8
3.16 Erosion and Silting Control 8
3.17 Emergency Access 8
3.18 Construction Refuse and Weeds 8
3.19 Dust Control 9
3.20 Street Names 9
3.21 Municipal Street Numbers 9
3.22 Blasting 9
3.23 Driveways 9
3.24 Contaminants 9
Section 4-Acceptance of Works 10
4.1 Stages of Construction and Services 10
4.2 Inspection and Acceptance of the Works 10
4.3 Final Acceptance of the Works 10
4.4 Acceptance During Winter Months 11
4.5 Use of Works by Municipality 11
4.6 Replacement of Survey Bars 11
4.7 Ownership of Services 11
Section 5-Maintenance of Works 11
5.1 Maintenance of Works 11
5.2 Road Maintenance 12
5.3 Emergency Repairs 12
Section 6-Drainage and Landscape Design 12
6.1 Drainage 12
6.2 Preservation of Trees 12
6.3 Lots Unsuitable for Building 13
6.4 Lot Grading 13
6.5 Maintenance of Lot Grading 14
Index(cont'd)
Section 7-Lands to be Conveyed 15
7.1 Lands for Municipal Purposes 15
7.2 Easements 15
7.3 Turning Circles 15
Section 8--Administration 15
8.1 Voiding Agreement 15
8.2 Developer's Expense 15
8.3 Phasing 15
8.4 Developer's Liabilities 16
8.5 Insurance 16
8.6 Legal Notice to Developer 16
8.7 Registration 17
8.8 Mortgages/Encumbrances 17
8.9 Requirements for Building Permits 17
8.10 Requirements for Occupancy 18
8.11 Special Building Permits/Model Homes 19
8.12 Right to Enter into an Agreement 19
8.13 Successors and Assigns 19
8.14 Notification to Purchaser 19
8.15 Scheduling,Progress and Completion 19
8.16 No Municipal Liability 20
8.17 Assignment 20
8.18 Conflict 20
8.19 Severability 20
8.20 Amendment 20
8.21 Further Assurances 20
8.22 Joint and Several 21
8.23 Headings 21
8.24 Enurement 21
Section 9-Financial Provisions 21
9.1 Development Charges,Drainage and Local Improvement Charges 21
9.2 Securities 21
9.3 Reduction of Securities 22
9.4 Statutory Declaration of Accounts Paid 22
9.5 Construction Act 23
9.6 Partial Release 23
Section 10-Special Provisions
-See Schedule"M" 23
Section 11-Finalization of Agreement 23
Section 12--Signatures 24
Index(cont'd)
LIST OF SCHEDULES
Schedule"A" -- Description of Lands Being Subdivided 25
Schedule"B" -- Plan of Subdivision 26
Schedule"C" -- Municipal Servicing Gui 27
Schedule"D" -- Checklist of Works to be Constructed 28
Schedule"E" -- Itemized Estimate of Costs of Construction of Each Part of the Works 29
Schedule"F" -- List of Lots Unsuitable for Building Purposes 30
Schedule"G" -- Owner's Final Grading Certificate 31
Schedule"H" -- List of Lands for Municipal Purposes and Easements to be Granted
to the Municipality 32
Schedule"I" -- No Occupancy Agreement 33
Schedule"J" -- Application for Reduction of Security 34
Schedule"K" -- Form of Partial Release 35
Schedule"L" -- Conditions of Draft Approval 36
Schedule"M" -- Special Provisions 37
THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE
SUBDIVISION AGREEMENT
THIS AGREEMENT made in triplicate on the _day of ,2020 A.D.
BETWEEN:
West Ridge on the Lake Inc.
hereinafter called the"Developer"
-and-
THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE
hereinafter called the"Municipality"
WHEREAS the Developer is the registered owner of the land described in Schedule "A"
(hereinafter called the "Lands") to this Subdivision Agreement (hereinafter called the
"Agreement")and proposes to subdivide it for the purpose of selling,conveying,or leasing it in
lots,by reference to a Registered Plan of Subdivision.
AND WHEREAS the Developer declares that it is the registered owner of the lands and has applied
to The Corporation of the County of Bruce(hereinafter called the"County),for approval of a Plan
of Subdivision (hereinafter called the "Plan"), which is annexed hereto as Schedule "B" to this
Agreement.
AND WHEREAS the Plan in Schedule"B"is the Draft Plan of Subdivision.
AND WHEREAS the Municipality and the Developer are desirous of entering into an Agreement
pursuant to Section 51(26)of the Planning Act;
AND WHEREAS the Municipality requires the Developer to construct and install certain
municipal services as hereinafter provided and herein referred to as the "Works", as set out in
Schedule"D", and to make financial arrangements with the Municipality for the installation and
construction of required services before final approval of the Plan by the County.
AND WHEREAS the Developer is required to dedicate for public purposes certain portions of the
Lands or make a cash payment to the Municipality in lieu of dedicating such land.
AND WHEREAS the Developer is required to meet all conditions of draft approval of the Plan
prior to final approval and registration of the Plan.
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of other good and
valuable consideration and the sum of One Dollar($1.00)of lawful money of Canada,now paid
by each of the parties hereto to each of the other parties hereto, (the receipt whereof is hereby
acknowledged),the parties hereto hereby covenant,promise and agree with each other as follows:
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SECTION 1—INTERPRETATION
1.1 Definitions
The terms defined in this Section 1.1 shall have the following meanings unless the context
expressly or by necessary implication otherwise requires:
"Agreement"means this Agreement titled"Subdivision Agreement".
"Business Day"means any day that is not a Saturday,Sunday or statutory holiday in the Province
of Ontario.
"Certificate of Final Acceptance" means the certificate issued by the Municipality after
satisfaction of the conditions identified in Section 4.3.
"Certificate of Inspection Re: Readiness for Occupancy"means the certificate issued by the
Municipality after satisfaction of the conditions identified in Section 8.10.
"Certificate of Preliminary Acceptance"means the certificate issued by the Municipality after
satisfaction of the conditions identified in Section 4.2.
"Chief Building Official"or"CBO"means the Director of Building and Planning or the Chief
Building Official,or designate for the Municipality of Kincardine.
"Conservation Authority"or"SVCA"means the Saugeen Valley Conservation Authority and
its successors and assigns.
"County"means The Corporation of the County of Bruce and its successors and assigns.
"Damage/Lot Grading Deposit"means the amount of$2,500.00 per lot or block which shall be
paid by the Developer to the Municipality by way of cash or a letter of credit, as described in
Section 8.9 of this Agreement.
"Developer"means,collectively,West Ridge on the Lake Inc.and its respective successors and
assigns. "Developer"where used in this Agreement includes an individual,an Association,a
Partnership,or a Corporation and wherever the singular is used herein,it shall be construed as
including the plural.
"Director of Public Works" means the Director of Public Works or designate for the
Municipality of Kincardine.
"Land and/or Lands" means the real property which is the subject of the Plan, the legal
description of which is attached as Schedule"A".
"Municipality"means the Corporation of the Municipality of Kincardine and its successors and
assigns.
"Municipal Act"refers to the Municipal Act, 2001,S.O.2001,c.25 and any amendments thereto.
"Owner"means the Owner of a lot or block and may include the"Developer".
"Plan"means the plan of subdivision relating to the Land as identified in Schedule"B".
"Works"means the Works and services described in Schedule"D".
-3-
1.2 List of Schedules
The following schedules are attached to and form part of this Agreement:
Schedule"A" -- Description of Lands Being Subdivided
Schedule"B" -- Plan of Subdivision
Schedule"C" -- Municipal Servicing Guidelines
Schedule"D" -- Checklist of Works to be Constructed
Schedule"E" -- Itemized Estimate of Costs of Construction of Each Part of the Works
Schedule"F" -- List of Lots Unsuitable for Building Purposes
Schedule"G" -- Owner's Final Grading Certificate
Schedule"H" -- List of Lands for Municipal Purposes and Easements to be Granted
to the Municipality
Schedule"I" -- No Occupancy Agreement
Schedule"J" -- Application for Reduction of Security
Schedule"K" -- Form of Partial Release
Schedule"L" -- Conditions of Draft Approval
Schedule"M" -- Special Provisions
SECTION 2—ORDER OF PROCEDURE
2.1 Upon application to the Municipality for the preparation of an agreement the
Developer shall:
(a) Pay to the Municipality the fee required by the Municipality's Tariff of Fees
By-law,as amended from time to time.
(b) Pay to the Municipality the sum of twenty thousand ($20,000.00) dollars as a
deposit in respect of the Municipality's legal and engineering costs referred to in
Section 3.2(a)herein.
(c) Submit a General Plan outlining the services to be installed.
2.2 Prior to Registering the Agreement the Developer shall:
(a) Deposit with the Municipality securities and insurance as outlined in the
Agreement.
(b) Pay in full any outstanding taxes or drainage, local improvement charges and
charges under the Municipal Act including outstanding sewer rates and/or water
rates.
(c) Mutually agree with the Municipality on the parcel of land to be deeded to the
Municipality for parkland or the amount of cash to be given to the Municipality in
lieu of parkland.
(d) Pay the amount in lieu of parkland to the Municipality or deposit the
Transfers/Deeds of Land for the parkland with the Municipality.
(e) Provide proof of postponement of any encumbrances on the Lands.
-4-
(f) Deposit with the Municipality's Solicitor, copies of this Agreement executed by
the Developer, to be executed by the Municipality and retained by the
Municipality's Solicitor for registration as hereinafter provided.
(g) Deliver to the Municipality's Solicitor written authorization to register this
Agreement or Notice of this Agreement both before and after registration of the
Plan and any costs associated with said registration shall be the responsibility of
the Developer and shall be deducted by the Municipality from the deposit being
held by the Municipality.
2.3 Prior to starting construction on the Services,the Developer shall:
(a) Have obtained final approval of the Plan from the County and the Plan, or any
subsequent plan for any Phase,has been registered.
(b) Have submitted and obtained the written approval of the Municipality's Engineer
for the following all to be done in accordance with the Municipal Servicing
Standards of the Municipality:
• The Drainage Area Plans;
• The Lot Grading Plan;
• The Service Layout Plan for underground electrical services, telephone, gas,
etc.;
• Final approved drawings for all Works required in Schedule "D" to this
Agreement.
(c) Submit to the Municipality the Ministry of the Environment Conservation and
Park's Environmental Compliance Approval for the Water Supply and Distribution
System(if required),the Sewage Collection System,and the Storm Sewer System
and Storm Water Management Works.
(d) Submit to the Municipal Engineer a completed Form 1 and supporting
documentation for approval of the Water Distribution System.
(e) Provide written confirmation of having obtained the approval for drainage, road
crossings, encroachments, etc. of all road authorities including the Municipality,
County,Conservation Authority,the Ministry of Transportation of Ontario and any
other authority involved.
(f) Have deeded to the Municipality the lands/blocks/easements listed in Schedule
«H„
(g) Arrange for and participate in a pre-construction meeting that includes the
developer, the developer's engineer, the general contractor, municipal
representatives,and the Municipal Engineer. The meeting is to be chaired by the
developer's engineer. The municipality can be expected to include discussion on
testing requirements for various component of the Works and upon the
requirements of this agreement.
2.4 Prior to the issuance of building permits the Developer shall:
(a) Have complied with all requirements of Section 8.9 of this Agreement.
2.5 Prior to any person occupying any building,the Developer shall:
(a) Have complied with all the requirements of Section 8.10 of this Agreement.
-5-
SECTION 3—INSTALLATION OF SERVICES
3.1 General
Upon approval of the Plan by the County, the Developer shall design, construct and
install at its own expense and in good workmanlike manner Municipal Works to the
servicing standards of the Municipality as set out in Schedule"C"to this Agreement.
3.2 Municipality's Legal and Engineering Costs
(a) The Developer agrees to pay the Municipality's cost of the Municipal Solicitor and
of the Municipality's Engineer's invoices for the checking of plans and
specifications and for supervision and inspection on behalf of the Municipality.
Further, the Developer agrees to reimburse the Municipality for any inspections
completed by municipal staff as part of the Municipal Engineer's inspections of
the installation of services.
(b) The Developer shall be invoiced regularly by the Municipality for all costs incurred
by the Municipality with respect to this Agreement pursuant to Section 3.2(a).
(c) The Developer shall reimburse the Municipality for all costs incurred by the
Municipality as referred to in Section 3.2(a)herein,within thirty(30)days of each
billing, failing which the Municipality and its agents shall cease all work with
respect to the review of the Subdivision.
(d) The deposit referred to in Section 2.1 (b) of this Agreement shall be retained by
the Municipality as a float against any unpaid bills and such deposit(or the balance
thereof, if any) shall be returned to the Developer at Final Acceptance of the
Subdivision by the Municipality and the Municipality being satisfied, in its
discretion, that all costs in Section 3.2 (a) herein and any contingencies with
respect to the Subdivision have been paid in full.
(e) The Developer shall pay to the Municipality, on thirty (30) days written notice
from the Municipality, such amount as is necessary to maintain the Deposit
referred to in Section 2.1 (a)at the sum of twenty thousand($20,000.00)dollars,
failing which the Municipality and its agents shall cease all work with respect to
the review of the Subdivision and any amounts that remain outstanding shall accrue
interest at the rate of 1.25%per annum(compounded annually)until paid in full.
3.3 Developer's Engineer
The Developer shall employ engineers holding a certificate of authorization from
Professional Engineers Ontario and approved by the Municipality:
(a) To prepare designs;
(b) To prepare and furnish all required drawings;
(c) To prepare the necessary contract(s);
(d) To obtain the necessary approvals in conjunction with the Municipality,the County
Health Unit and the Ministry of the Environment Conservation and Parks, and
others as required.
(e) To provide the contract documentation, contract administration, and the full time
supervision of construction.
(1) To maintain all records of construction and upon completion, to advise the
Municipality's Engineer of all construction changes and to prepare final As Built
drawings. Digital files of the As Built drawings shall be submitted to the
Municipal Engineer and the Municipality prior to the issuance of the Certificate of
Final Acceptance. Digital files shall be recorded by GPS using NAD 83 UTM
-6-
Zone 17N with an accuracy of 100 mm or less, in the format of ArcGIS 9.2 (or
compatible version)with the inclusion of x,y coordinates for all applicable points
of reference.
(g) To act as the representative of the Developer in all matters pertaining to the
construction.
(h) To provide co-ordination and scheduling to comply with the timing provisions of
this Agreement and the requirements of the Municipality's Engineer,for all Works
specified in this Agreement.
(i) To provide certification that the installation of services was in conformance to said
plans and specifications, such certification to be in a form acceptable to the
Municipality's Solicitor and the Municipality's Engineer.
(j) To take such other actions as may be required by the Municipality, acting
reasonably, for the completion of the subdivision in accordance with this
Agreement and good engineering practices.
3.4 Works to be Installed
The Works to be installed are set out in Schedule"D"to this Agreement. This schedule
is to set out the Works in general terms only and shall not be construed as covering all
items in detail. If at any time and from time to time during the development, the
Municipality's Engineer is of the opinion that additional Works are necessary to provide
adequately any of the public services required by the Plan, the Developer shall, at its
expense, construct, install or perform such additional Works at the request of the
Municipality's Engineer.
3.5 Approval of Plans
The detailed plans and specifications of all services must be submitted by the Developer
to the Municipality's Engineer for endorsement of approval and such endorsement of
approval shall in no way absolve the Developer or its consulting Engineers of
responsibility for errors in or omissions from such plans and specifications.
3.6 Notification of Commencement
The Developer shall not commence the construction of any of the Works until the Plan
has been registered and the Developer has provided three(3)business days written notice
to the Municipality's Engineer of its intent to commence work. Should,for any reason,
there be a cessation or interruption of construction,the Developer shall provide three(3)
business days written notification to the Municipality's Engineer before work is resumed.
3.7 Progress of Works
The Developer shall install all Works in a timely manner, in accordance with the
requirements of Schedule"C"and this Agreement. If it fails to do so,having commenced
to install the aforesaid Works, fails or neglects to proceed with reasonable speed, or in
the event that the aforesaid Works are not being installed in the manner required by the
Municipality,then upon the Municipality giving seven(7)days written notice by prepaid
registered mail to the Developer,the Municipality may,without further notice,enter upon
the said lands and proceed to supply all materials and to do all the necessary Works in
connection with the installation of the said Works,including the repair or reconstruction
of faulty work and the replacement of materials not in accordance with the specifications,
and to charge the cost thereof together with an engineering fee of ten percent(10%) of
the cost of such materials and Works to the Developer who shall forthwith pay the same
upon demand. If the Developer fails to pay the Municipality within thirty(30)days of
date on the bill,the money owing may be deducted from the cash deposit,letters of credit,
or other securities. It is understood in the event that the Municipality must enter upon
said lands and have Works completed or repaired due to situations as outlined above any
or all original drawings and specifications prepared by the Developer's Engineer must be
turned over to the Municipality's Engineer for its use should he require same. It is
-7-
understood and agreed between the parties hereto that such entry upon the lands shall be
as an agent for the Developer and shall not be deemed for any purpose whatsoever,as an
acceptance or assumption of the said Works by the Municipality. The Municipality, in
addition to all other remedies,may refuse to issue building permits until the Works are
completely installed in accordance with the requirements of the Municipality.
Without limiting the obligations of the Developer herein, if the Developer defaults on
the performance of any term,covenant or provision of this Agreement,and if such default
continues for ten(10)days after the Developer receives written notice of such default by
the Municipality(or such shorter time as may be required in the cases of an emergency
or other urgent matters or as otherwise provided for herein), the Municipality may
perform that obligation on the Developer's behalf and may enter upon the Lands for this
purpose. If the Municipality is compelled or elects to incur any expense in connection
with its performance of the Developer's obligations(including any engineering or legal
fees incurred in connection with such actions), any reasonable costs so incurred by the
Municipality, together with all interest thereon and any damages incurred, shall be
payable to the Developer and shall be collectible by the Municipality in like manner as
municipal taxes. The Developer also acknowledges and agrees that the Municipality has
the right to draw down any Letters of Credit, cash or other security for the purpose of
collecting any such expenses incurred by the Municipality.
3.8 Scheduling of Works
Prior to the start of construction and prior to the issuance of building permits, the
Developer shall supply for the approval of the Municipality's Engineer a Schedule of
Works setting out the order in which it considers the various sections of the Works within
the Plan will be built. The Municipality's Engineer may amend this schedule and the
Developer must construct, install or perform the work as the Municipality's Engineer
from time to time may direct.
3.9 Contractor
The said services shall be installed by a qualified competent contractor or contractors
retained by the Developer.
3.10 Utility Costs and Charges
The Developer shall deal directly with all utility companies. The Developer's Engineer
shall obtain all approvals and permits and pay all fees and charges directly to the
appropriate utility company.
3.11 Access Roads
All access roads must be maintained by the Developer in good repair acceptable to the
Municipality's Engineer during the time of construction. This shall include the removal
of mud tracked from the Subdivision as well as dust control. No roadway outside the
limits of the proposed Subdivision may be closed without the written consent of the
Municipality. To obtain such consent,the Developer shall advise the Director of Public
Works,not later than fourteen(14)days prior to the proposed closure,of the date,time
and duration they wish to close a roadway. All costs for advertising the closure and
signage shall be borne by the Developer. The Municipality reserves the right to limit or
prohibit the use of any existing access road by the Developer.
3.12 Movement of Fill
The Developer covenants and agrees that it shall not dump nor permit to be dumped any
fill or debris on, nor shall it remove or permit to be removed any fill, topsoil, trees or
shrubs from any public lands, other than roads, without the written consent of the
Municipality's Engineer. The Developer further agrees that no topsoil shall be removed
from the lots and/or blocks except for construction purposes within the development and
then such topsoil shall be stockpiled during grading operations and as each building is
completed,the topsoil so stockpiled shall be replaced on the ground around each building
to comply with the municipal standards, and the replacing of such topsoil shall include
all surfaces not covered by buildings, driveways or pavement within the development.
-8-
Excess topsoil may be removed from the site with the approval of the Municipality's
Director of Public Works.
3.13 Damage to Existing Plant
The Developer shall repair any damage caused to any existing road, road allowance or
existing structure or plant located on the road allowance as a result of the Development
and shall pay for any costs involved in relocation of existing service such as hydrants,
telephone poles,hydro poles,pad mount transformers,cubicles and pedestals,etc.,which
may be necessary because of the development.
3.14 Signs
Signs at least 1.2 m x 1.8 m shall be erected by the Developer in an approved location at
each entrance to the Subdivision. The signs shall read as follows:
"Roads Not Assumed by Municipality- Use at Your Own Risk".
These signs shall be installed prior to the start of construction and be removed after all
the roads have received a Certificate of Final Acceptance.
3.15 Testing
The Municipality's Engineer may have any qualitative or quantitative tests made of any
materials which have been or are proposed to be used in the construction of any of the
Works required by this Agreement, or may require television camera or soil tests to be
carried out,and the cost of such tests shall be paid by the Developer within ten(10)days
of the account being rendered by the Municipality. Nothing herein shall relieve the
Developer of its responsibility to carry out any tests required by good engineering
practice.
3.16 Erosion and Silting Control
The Developer must take all necessary precautions to prevent erosion and sedimentation
of sewers, ditches, culverts, slopes, etc., both within the Development and downstream
during construction and completion of servicing. Failing adequate precautions being
taken, the Developer will be responsible for correcting any damages and paying all
maintenance costs resulting therefrom.
3.17 Emergency Access
The Developer shall at all times during construction and development of the Works
maintain emergency access to the land to the satisfaction of the Municipality's Engineer.
3.18 Construction Refuse and Weeds
The Developer, and each subsequent Owner of Lots or Blocks within the Plan, shall
regularly dispose of all construction refuse, debris or weeds whether it be from site
servicing or house building or any other source related to the development of the site,in
an orderly and sanitary fashion. If the Developer or subsequent Owner of the Lots or
Blocks within the Plan fails to remove and dispose of construction refuse,debris or weeds
to the satisfaction of the Municipality's By-law Officer, the Municipality may give
written notice to the Developer or Lot Owner. If the Developer or each subsequent
Owner of Lots or Blocks within the Plan fails to dispose of the refuse, debris or weeds
within forty-eight(48)hours after receiving a written request from the Municipality to
do so, the Municipality may, without further notice, undertake such removal and
disposition and the cost thereof shall be paid by the Developer or each subsequent Owner
of the Lots or Blocks within the Plan forthwith upon demand,which costs shall include
all expenses incurred by the Municipality in carrying out such removal and disposition.
The burning of construction refuse,debris of weeds,whether it be from site servicing or
house building or any other source related to the development of the site on any lands
within the Plan is prohibited. The cost of disposal as required by this section will be at
the expense of the Developer or each subsequent Owner and the Municipality may
recover such expense under Section 446 of the Municipal Act, 2001 in the same manner
as taxes or from the deposit required by Section 8.9(h).
-9-
3.19 Dust Control
Until the Final Acceptance of all Services to be constructed under this Agreement, the
Developer shall use such reasonable method and at all times environmentally acceptable
materials to prevent any dust problem to traffic or home occupants as the Municipality
shall deem necessary and for this purpose the Municipality's Director of Public Works
shall notify the Developer in writing from time to time of the requirements of the
Municipality.
3.20 Street Names
The Developer shall name all streets within the Land forming part of the Plan with names
approved by the Municipality.
3.21 Municipal Street Numbers
(a) All Lot, Block or building numbers for use within the Plan shall be allocated by
the Chief Building Official. To obtain such allocation,the Developer shall furnish
the Chief Building Official with a copy of the Plan as registered upon which the
Chief Building Official will designate the proper numbers for each Lot,Block or
building.
(b) The Developer shall display by means of a legible sign at least 300 mm x 300
mm to be erected on each Lot or Block within the Plan,the Lot or Block number
as shown on the Plan and the street number and Lot or Block number for each Lot
or Block prior to the issuance of a Building Permit for that Lot or Block which sign
shall remain until such time as the building on such Lot or Block is occupied in
accordance with the provisions of this Agreement.
(c) Each Owner shall cause the street number so provided to be placed and maintained
in a conspicuous position in the front of the property upon occupancy.
(d) All costs related to Lot,Block or building numbering shall be the responsibility of
the Developer.
3.22 Blasting
The Developer agrees that no blasting will be undertaken without the written consent of
the Municipal Engineer.
3.23 Driveways
The Developer hereby agrees that the driveways for all lots will be in a location and have
a width and design as may be approved by the Municipality. Without in any way limiting
the discretion of the Municipality,the location of the driveways may be further limited
by special provision in Schedule "M" of this Agreement. Further, all driveways for all
lots in the plan should be located in a manner that will minimize the amount of snow that
will accumulate in the lot's driveway. The location of driveways is particularly important
with respect to all corner lots located in the plan, as these driveways entrances must be
located as far as possible from the street corner to minimize the amount of snow that will
block these driveways during the Municipality's efforts to remove snow.
Further,the Developer hereby agrees that they will be responsible for,or will provide for
agreements with subsequent owners, with respect to responsibility, to complete all
driveway entrances,for its full width,with a hard surface consisting of asphalt,concrete
or concrete unit pavers. This hard surface shall extend to the edge of the municipal road
allowance.
3.24 Contaminants
In the event the Developer discovers any waste, contaminants, pollutants, hazardous
substances or any other similar substances that may be detrimental to the environment
during the development of the lands constituting the Plan,the Developer hereby agrees
to notify the Municipality and the Ministry of the Environment,Conservation and Parks
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immediately and take all necessary steps and remedial efforts required by the Ministry of
the Environment Conservation and Parks and the Municipality to remove such waste,
contaminants, pollutants, hazardous substances or other substances that could be
detrimental to the environment. In taking such action, the Developer shall fulfill all
legislative requirements for the remediation and clean-up of lands constituting the Plan
and shall comply with all legislative requirements regulating the removal,transportation
and disposal of such waste,contaminants,pollutants,hazardous substances or any other
similar substances from the said lands.
SECTION 4—ACCEPTANCE OF WORKS
4.1 Stages of Construction and Services
The Municipality will grant Preliminary or Final Acceptance of servicing based upon
three(3)stages of construction;and when the development is phased,within the whole
of each phase as approved by the Municipality. Stages of construction are as follows:
(a) Stage 1 - consists of all underground Works including storm sewers and storm
water management facilities, sanitary sewers, watermains and the completion of
Granular"B"road base,a portion of the Granular"A"for a riding surface,together
with the As Built drawings for that work.
(b) Stage 2 -services shall include the balance of the road Works including granular,
curbs and gutter,base asphalt,grading of boulevard areas,sidewalks, installation
of street and traffic signs, conduits, piping and facilities for the completion of
electrical servicing, street lighting and other utilities such as gas, telephone and
Cable T.V,together with As Built drawings for that work.
(c) Stage 3 - services including the final coat of asphalt, topsoil and sodding, trees,
fencing and any other requirements of this agreement.
4.2 Inspection and Acceptance of the Works
When all of the services in Stage 1 and 2,or in Stage 3 of servicing as identified above
have been completed and the Municipality's Engineer has been given written
certification by the Developer's Engineer that such services have been constructed in
each stage in accordance with the approved plans and specifications in this Agreement
and upon satisfactory inspection by the Municipality's Engineer and/or municipal staff,
the Municipality's Engineer will recommend that the Municipality grant a Certificate of
Preliminary Acceptance. This Certificate may include a list of minor deficiencies which
the Developer must repair. The services shall then be subject to a guaranteed
maintenance period as described in Section 5.1.
The Developer acknowledges that the Municipality will not be required to perform any
utility locates until such time as Preliminary Acceptance of the Stage 1 services have
been completed and the Developer has provided the As Built drawings required for that
portion of the work under this Agreement.
4.3 Final Acceptance of the Works
On receipt of a written request from the Developer for final inspection and final
acceptance following completion of the guaranteed maintenance period outlined in
Section 5.1,the Municipality's Engineer will complete an inspection and if there are no
deficiencies,will recommend to the Municipality that the Certificate of Final Acceptance
be issued. This Certificate will be issued provided that the Developer has paid all
accounts to the Municipality and the Municipality is:
• Satisfied the applicable services have been completely installed;
• Satisfied all repairs or maintenance work on the applicable services have been
completed.
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and the Municipality has:
• Approved the formal certification of final completion from the Developer's
Engineer certifying that all Works and services have been installed;
• Received final As Built drawings as detailed elsewhere in this Agreement.
4.4 Acceptance During Winter Months
The Municipality will not be required to provide Certificates of Preliminary or Final
Acceptance during the winter months or any other time of year when inspection of the
Works and services is impractical due to snow cover. inclement weather and/or other
adverse conditions.
4.5 Use of Works by Municipality
The Developer agrees that:
(a) The Works may be used prior to acceptance by the Municipality, or other
authorized persons for the purposes for which such Works were designed.
(b) Such use shall not be deemed an acceptance of the Works by the Municipality.
(c) Such use shall not in any way relieve the Developer of its obligations in respect
of the construction and maintenance of the Works so used.
4.6 Replacement of Survey Bars
Prior to the final acceptance by the Municipality, the Developer shall deliver to the
Municipal Clerk a statement from an Ontario Land Surveyor approved by the
Municipality that after the completion of the work, he/she has found or replaced all
survey monuments and iron bars as shown on the registered plan.
4.7 Ownership of Services
Upon the issuance to the Developer of the Certificate of Final Acceptance,the ownership
of the services described shall vest in the Municipality and the Developer shall have no
claim or rights thereto except those occurring as an owner of the lands abutting the streets
where such services are installed.
Notwithstanding the above,the Developer and Municipality agree that on connection of
water distribution systems, the Municipality will then become the operator of said
systems. This shall not relieve the Developer of any maintenance responsibilities under
this Agreement. Any costs associated with the repair and maintenance of the water
infrastructure during the warranty period as outlined in Section 5.2 of this Agreement
shall be borne by the Developer.
SECTION 5—MAINTENANCE OF WORKS
5.1 Maintenance of Works
The Developer will be responsible for the repair and maintenance of all services
including hydro costs for street lights, until a Certificate of Final Acceptance is issued
for the Stage 2 services by the Municipality. This maintenance period shall extend for
two(2)years from the date of the Certificate of Preliminary Acceptance for each Stage
of the Works. During this maintenance period,a 10%security holdback shall be retained
by the Municipality in accordance with the provisions of Clause 9.3(e)of this agreement.
If during this period,the Developer fails to carry out maintenance work within seventy-
two(72)hours after receipt of the request from the Municipality,then the Municipality's
Engineer or Director of Public Works may, without further notice, undertake such
maintenance work and the total costs of such work,including engineering fees,shall be
borne by the Developer. If the Developer fails to pay the Municipality within thirty(30)
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days of the date of billing then the money owing may be deducted from the deposited
securities. Towards the end of the Maintenance Period,the Developer shall make written
request to the Municipality for a final inspection to be made in respect to the issuance of
the Certificate of Final Acceptance.
5.2 Road Maintenance
The Developer will be responsible for the maintenance of the roads until a Certificate of
Final Acceptance is issued by the Municipality.
Summer maintenance shall include grading,dust control and general clean-up of the site.
Winter road maintenance shall include all plowing,sanding and salting to assure proper
vehicular access within the Subdivision.
In the event that proper maintenance or snow removal is not provided by the Developer,
the Municipality, through its servants, contractors or agents may provide maintenance
and/or remove snow without notice to the Developer. Such work will be carried out at
times deemed to be an emergency by the Municipality's Director of Public Works. All
costs of such work shall be paid by the Developer within thirty(30)days of date of billing
or otherwise may be deducted from the deposited securities. The Developer further
agrees that any work done by the Municipality pursuant to this contract before the roads
are accepted by the Municipality shall not be deemed in any way,to be an acceptance by
the Municipality of the roads in the said Subdivision upon which such work is done. The
Developer acknowledges that the Municipality,in providing maintenance or during snow
removal,may damage or interfere with the Works of the Developer and cause damage to
such Works and the Developer hereby waives all claims against the Municipality that it
may have arising therefrom and covenants that it will make no claim against the
Municipality for such interference or damage. Representation may be made requesting
that the Municipality consider entering into a separate agreement with the Developer to
undertake the winter road maintenance within the Subdivision.
5.3 Emergency Repairs
Employees or agents of the Municipality may enter upon the Land at any time or from
time to time for the purpose of making emergency repairs to any of the Works on behalf
of and at the expense of the Developer. Such entry and repairing shall not be deemed an
acceptance of any of the Works by the Municipality or an assumption by the Municipality
of any liability in connection therewith or a release of the Developer from any of its
obligations under this Agreement.
SECTION 6—DRAINAGE AND LANDSCAPE DESIGN
6.1 Drainage
All Lots and Blocks within the Plan and all lands abutting the Plan shall be graded to
drain in accordance with the Drainage Plan as approved by the Municipality's Engineer.
It is understood and agreed by the parties hereto that the drainage of surface waters on
the Lots and Blocks in the Plan, are the sole responsibility of the Developer and
subsequent purchasers,and the Developer is to provide and maintain adequate drainage
of such surface waters. Satisfactory drainage outlets shall be provided. Drainage shall
not impact adjacent landowners. Drainage outlets shall be constructed from the limits of
the Subdivision to a sufficient outlet in accordance with the approved engineering
drawings.
6.2 Preservation of Trees
The Developer shall strive to preserve healthy trees, except for the actual area of
roadway construction, the installation of services, or the areas within the building
envelope.No additional trees shall be removed without the Municipality's Director of
Public Works' written permission. The subdivision may be subject to the Natural
Heritage Designation and/or an individual Environmental Impact Study. Where
appropriate,special provisions may be included in Schedule"M"of this Agreement.
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6.3 Lots Unsuitable for Building
Any lot which will require special attention in order to be serviced will be listed in
Schedule "F"of this Agreement. Prior to the issuance of a building permit for any lot
listed in Schedule "F", the Developer's Engineer must submit a letter to the
Municipality's Engineer outlining the measures to be taken to correct the problems on
the lots. This proposal must be approved prior to applying for a building permit.
6.4 Lot Grading
All Lands shown within the Plan shall be graded in general conformity with the Lot
Grading Plan, including fill and excavation as required for the full width and length of
the grades and levels, and to the specifications, requirements and satisfaction of the
Municipality's Engineer; provided that for residential lots and blocks, grading must be
brought within zero decimal five (0.5) metres of the final grade and such further
residential development may complete the grading. All work done by the Developer
must be of such a nature as to ensure that the integrity and intent of the overall grading
plan is functional until the Lands are fully developed.
(a) Obligation to Grade According to Lot Grading Plan
The Lands shall not be graded except in general conformity with the grades and
elevations shown on the Accepted Grading Plan.
(b) Certified Building Lot Site Plan
Subject to Section 8.9 herein,no building shall be constructed on a Lot or Block
within the Plan until a Building Lot Site Plan certified by a Professional
Engineer who shall be the Developer's Engineer, has been filed with and
approved by the Chief Building Official of the Municipality. The Building Lot
Site Plan shall show:
• the proposed finished elevation of these lands at each corner of the lot or
block;
• the proposed finished elevation of these lands at the front and rear of the
building;
• the proposed finished elevations of the underside of the footings and the
proposed finished height of the foundation of the building;
• the proposed finished elevation of any retaining walls, the proposed
elevation of any walk-out onto these lands from the basement of the
building,and the proposed finished height of the foundation of the building;
• the proposed finished elevation and slope of any driveway and the proposed
location of any swale or rear yard catch basin;
• the location of eavestrough downspouts;no downspouts will be allowed to
discharge in a sideyard between residences;
• any abrupt changes in the proposed finished elevation of these lands;
• swale location and elevations;
• sidewalk;
• service and driveway locations;and
• the Lot and Registered Plan number,the municipal address for the subject
Lot or Block and the proposed location of the building thereon in relation
to the Lot or Block boundaries.
The Developer hereby agrees that the existing property line grades abutting
developed lands are not to be altered or disturbed,except as approved otherwise
by the Municipality's Engineer.
The Developer shall complete such other actions as may be required by the
Municipality, acting reasonably,to ensure that the subdivision is developed in
accordance with the terms of this Agreement and good engineering practices.
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(c) Owner's Final Grading Certificate
• No newly constructed building shall be occupied or used unless there is
filed,prior to occupancy,with the Municipality's Chief Building Official,
an Owner's Final Grading Certificate in the form attached as Schedule"G"
bearing the signature and seal of a Professional Engineer who shall be the
Developer's Engineer, that the grading of these lands generally conforms
with the Lot Grading Plan and the Certified Building Lot Site Plan.
• If occupancy occurs between November 1 and May 31 and an Owner's
Final Grading Certificate is not filed prior to occupancy with the
Municipality's Chief Building Official, then the Owner shall provide the
Municipality's Chief Building Official with a written undertaking to file
the said Owner's Final Grading Certificate with the Municipality's Chief
Building Official by the following June 1.
• If and when the Owner's Final Grading Certificate is accepted by the
Municipality's Chief Building Official that the Lands generally conform
with the Lot Grading Plan and the Certified Building Lot Site Plan, the
Damage/Lot Grading Deposit referred to in Section 8.9(h)is returnable to
the Owner subject to this Section and Section 8.9(h)of this Agreement.
• The Owner agrees that, should drainage rectification become necessary in
the absolute discretion of the Municipality, and the Owner fails to make
such rectification when so instructed by the Municipality,the Municipality
may, at its option,undertake the correction of such drainage and all costs
over and above the two thousand five hundred dollar($2,500.00) deposit
shall be charged back to the Owner and shall include a management fee of
15%of the cost of labour and material shall be a charge against the Lot or
Block for which regrading was carried out and shall be payable forthwith.
The Owner agrees that neither it nor its successors or assigns will alter the
grading or change the elevation or contour of the Land except in accordance
with drainage plans approved by the Municipality. In addition to any other
remedy,the cost for such rectification if completed by the Municipality will
be at the expense of the subsequent owner and the Municipality may
recover such expense under Section 446 of the Municipal Act, 2001 in the
same manner as taxes.
(d) Obligation to Maintain Grading
After the building or Block is graded in accordance with the Lot Grading Plan
and the Certified Building Lot Site Plan,no change shall be made to the actual
finished elevation and grading of the building Lot or Block in any way that
results in a material alteration of drainage on or across the building Lot or Block
or adjacent lands from that shown on the Lot Grading Plan for the adjacent lands
or the Owner's Final Grading Certificate for the building Lot or Block.
(e) Erosion Control
The Developer shall construct silt fences or other facilities as required during
construction to control overland flows from this Subdivision to ensure that mud,
silt,construction debris,etc.does not adversely affect abutting properties,all to
the specifications of the Municipality's Engineer.
6.5 Maintenance of Lot Grading
The facilities and Works required by Section 6 shall be provided and maintained by the
Developer or subsequent owner of each lot from time to time at such party's sole risk and
expense.
Should, for any reason, the Developer or subsequent Owner fail to maintain the lot
grading,they acknowledge that the Municipality,or in the case of a subsequent Owner,
the Municipality or the Developer may enter upon the said property at any reasonable
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time to correct any drainage issues. The cost/expense for any such remedial action
completed by the Municipality shall be at the expense of the subsequent Owner and the
Municipality may recover the cost of doing such remedial work in accordance with the
provisions of Section 446 of the Municipal Act in the same manner as taxes.
SECTION 7—LANDS TO BE CONVEYED
7.1 Lands for Municipal Purposes
The Developer shall convey in fee simple a good title free from encumbrances except as
provided in Paragraph 1 of Schedule "M", to the Municipality, lands for municipal
purposes other than roads, which shall be mutually agreed upon by the Owner and the
Municipality,or to make a cash payment in lieu thereof as stipulated by the Municipality
and also to convey to the Municipality in fee simple, the 0.3 metre reserves and other
lands required by the Municipality. The deeds for the said lands are to be approved by
the Municipality's Solicitor and thereafter forthwith registered in the Land Registry
Office and deposited with the Municipal Clerk. The cost for preparation and registration
of the said deeds shall be paid by the Developer. A list of lands for municipal purposes
to be conveyed to the Municipality shall be set out in Schedule"H"of this Agreement.
7.2 Easements
The Developer agrees to grant at its expense all such easements and right-of-ways as may
be required for the installation and supply of services to the Subdivision. A list of
easements and right-of-ways to be granted to the Municipality shall be set out in Schedule
"H"of this Agreement.
7.3 Turning Circles
The Municipality may require the installation of temporary turning circles. Where such
are required,the Developer shall convey easements to the Municipality for the purposes
of providing the Municipality with sufficient land to construct said turning circle(s). The
temporary turning circle shall be constructed in accordance with Schedule "C" of this
Agreement. The Developer and the Municipality acknowledge that the easements shall
be released to the owners in the event that the street is connected in the future. Such
conveyance and release of the easements shall be completed at no expense to the
Municipality. A list of said easements is included in Schedule"H"of this Agreement.
SECTION 8—ADMINISTRATION
8.1 Voiding Agreement
In the event that the Plan is not registered in the land registry system within one year
from the date of the signing of this Agreement,the Municipality may at its option
declare this Agreement to be null and void. All costs incurred shall be deducted from
the deposit paid by the Developer to the Municipality pursuant to this Agreement or
any other agreement between the Developer and the Municipality referred to herein.
8.2 Developer's Expense
Every provision of this Agreement by which the Developer is obligated in any way shall
be deemed to include the words"at the expense of the Developer"and"as approved or
accepted by the Municipality",unless specifically stated otherwise.
8.3 Phasing
(a) The Municipality may instruct the Developer to construct the Works in particular
phases suitable to it and the Developer must comply. If the Municipality does not
so instruct the Developer, before commencement of any of the Works, he may
request the Municipality's permission to divide the area into convenient phases.
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(b) If the construction of the Works is to be phased,then in lieu of furnishing securities
as required by Section 9 of this Agreement for the whole of the Works the
Developer may furnish the required securities for that part of the Works to be
constructed in each phase(s).
(c) The Land upon which the Works is to be constructed in a future phase shall be
made subject to a specific Holding Zoning("H")provision by means of a By-law
to be passed by the Municipality under Section 36(1)of the Planning Act,R.S.O.
1990 c.P. 13("Planning Act")at the Developer's expense.
(d) Prior to the commencement of the construction of the Works within the Land made
subject to a Holding Zoning ("H") provision and after the deposit with the
Municipality of the securities as set out elsewhere in this Agreement for such Land
along with a written request from the Developer, the Municipality shall at the
Developer's expense pass a By-law under Section 36 of the Planning Act to
remove the Holding Zoning("H")provision.
(e) Before proceeding with an additional phase the Developer shall obtain the written
approval of the Municipality and no Works shall be permitted to be installed and
no building permits issued until this approval has been given in writing by the
Municipality.
(f) Subject to Section 8.15 herein,commencement of construction within subsequent
phases of this subdivision,or other subdivisions of the Developer herein within the
Municipality,may not proceed.
(g) Additional phasing provisions applicable to this subdivision are contained in
Schedule "H" and in Section 14 of Schedule "M" of this Agreement, attached
hereto.
8.4 Developer's Liabilities
Until the Municipality has issued the Certificate of Final Acceptance for the Works,the
Developer hereby indemnifies and saves harmless the Municipality against all actions,
causes of action, suits, claims and demands whatsoever which may arise either directly
or indirectly by reason of the Developer undertaking the Subdivision.
8.5 Insurance
The Developer shall insure against all damages or claims for damage with an Insurance
Company satisfactory to the Municipality. Such policy or policies shall be issued in the
joint names of the Developer,the Municipality and the Municipality's Engineer and the
form and content shall be subject to the approval of the Municipality. The minimum
limits of such policies shall be five million dollars($5,000,000.00) all inclusive,but the
Municipality shall have the right to set higher amounts,as its sole discretion. The said
insurance policy shall include a provision that requires the insurance company to provide
the Municipality with thirty(30)days' notice of termination of such policy. The policy
shall be in effect for the period of this Agreement including the guaranteed maintenance
period pursuant to Section 5 of this Agreement. The issuance of such a policy of
• insurance shall not be construed as relieving the Developer from responsibility for other
or larger claims,if any,for which it may be held responsible.
8.6 Legal Notice to Developer and Municipality
Any notice required to be given hereunder may be given by fax, personal service
delivered directly to the Developer or the Developer's engineer or by registered mail
addressed to the Developer at its principal place of business, as identified in this
Agreement or as provided by the Developer from time to time or as shown on the last
revised assessment roll in the possession of the Municipality's Clerk, and shall be
effective as of the date delivered or sent via fax or shall be effective, in the case of
registered mail,the 5th day after the date the Notice was deposited in the Post Office.
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Any notice required to be given to the Municipality hereunder shall be given to the
Municipality by registered mail to:
Municipality of Kincardine
1475 Concession 5,RR#5
Kincardine,ON N2Z 2X6
ATTN:Clerk
8.7 Registration
The Developer consents and authorizes the registration of this Agreement by the
Municipality's Solicitor on title to the Lands both before and after the registration of the
Plan in the Land Registry Office,which said registration is at the sole discretion of the
Municipality and all costs of registration shall be paid for by the Developer.
The Developer hereby agrees that until the Municipality has registered this Agreement
upon title to the Lands,no lots or blocks in the plan shall be conveyed.
8.8 Mortgages/Encumbrances
The Developer covenants and agrees to obtain and register,at its sole cost and expense,
a postponement from each encumbrancer with a charge registered against title to the Land
(or part thereof) so that notice of this Agreement shall be registered in priority to any
such charge.
Further,the mortgagee, if any, agrees that in the event of him assigning or transferring
the mortgage on the lands,the assignment or transfer shall be subject to the terms hereof
in the same manner as if the assignee or transferee had executed this Agreement.
8.9 Requirements for Building Permits
The approval of the Plan by the Municipality or the acceptance by the Municipality of
the Works shall not be deemed to give any assurance that municipal building permits,
when applied for will be issued in respect of the Lots or Blocks shown on the Plan.
Notwithstanding the foregoing,the Developer agrees that it,or anyone claiming title from
it or under its authority,shall not apply for any building permits for Lots or Blocks within
the Plan until all requirements hereinafter set out have been carried out to the satisfaction
of the Municipality. It is agreed that a copy of this Section 8.9 shall be delivered by the
Developer to each and every Purchaser of Land within the Plan and to each and every
Builder obtaining a Building Permit for any Lot or Block or part of a Lot or Block within
the Plan and the Developer shall extract a covenant similar to this covenant from all such
Purchasers and Builders. The Municipality shall have the right to refuse any such
application until:
(a) Preliminary Acceptance has been granted for Stage 1 servicing for that phase of
the Subdivision;
(b) The Developer has provided sufficient documentation to the Municipality's
Engineer confirming that electrical distribution and street lighting and the
remaining underground services,telephone,cable t.v.,and gas are being scheduled
for installation;and will be completed within six(6)weeks of the date of issuance
of the building permit;
(c) Approval of the Municipality has been obtained for the construction of any
buildings to be erected on Lots or Blocks that may be listed in Schedule"F"hereto;
(d) A certificate has been given by the Municipality's Chief Building Official that the
building location is in compliance with the zoning By-law of the Municipality;
(e) The signs denoting"Roads Unassumed by the Municipality"have been installed at
the entrances to the Subdivision;
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(f) All dead trees within the limit of the Plan have been removed;
(g) All street identification signs required by this Agreement have been installed and
are in place;
(h) Payment to the Municipality by cash or letter of credit in the amount of$2,500.00
as a Works Damage/Lot Grading Compliance Deposit (herein "Damage/Lot
Grading Deposit") per Lot or Block in the Plan of which the sum of$100.00 is
non-refundable. The balance of the Damage/Lot Grading Deposit shall be
refundable in whole or in part after the building has been constructed and occupied,
an Owner's Final Grading Certificate has been filed with and accepted by the
Municipality's Chief Building Official and the required service connections have
been made and all damages to the Works which form the subject matter of this
Agreement resulting from house building and/or landscaping activities on the
subject Lot or Block have been repaired to the satisfaction of the Municipality's
Chief Building Official and the Municipality's Director of Public Works;
(i) With respect to repair of damage to the Works,in the event that the Owner fails to
repair the damage to the Works when so instructed by the Municipality's Chief
Building Official or the Municipality's Director of Public Works,the Municipality
may,at its option,undertake the repair of such damage and all costs over and above
the $2,500.00 deposit shall be charged back to the Owner and shall include a
management fee of 15%of the cost of labour and material,shall be a charge against
the Lot or Block for which repairs were carried out and shall be payable forthwith;
(j) Payment to the Municipality in the amount of the current applicable Development
Charge(s)per Lot or Block in the Plan under the Development Charges By-law of
the Municipality,as amended from time to time;
(k) A Certified Building Lot Site Plan has been filed with the Chief Building Official
of the Municipality pursuant to Section 6.4(b);and
(1) The Developer agrees that the preceding requirements in this Section 8.9 are in
addition to and not in substitution of the requirements of the Building Code Act,
1992, S.O. 1992,c.23,and any amendments thereto and regulations thereunder with
respect to the issuance of Building Permits.
8.10 Requirements for Occupancy
Subject to Section 8.11 herein,no building erected on the Lots or Blocks within the Plan
shall be occupied until a Certificate of Inspection re: Readiness for Occupancy has been
issued by the Municipality's Chief Building Official and the said Certificate shall not be
issued until:
(a) Preliminary Acceptance has been granted for Stage 2 servicing for the phase of the
Subdivision including the Lot or Block.
(b) The roadway from the entrance of the Subdivision to and including the lot or block
of which the building is a part,has received the base course asphalt.
(c) The electrical distribution plant including street lights have been installed and
approved by the Utility Company.
(d) The traffic and street signs have been installed and approved by the Municipality's
Engineer.
(e) Subject to Section 6.4(c), the final grading of the Lot or Block is in conformity
with the overall grading plan or such variances therefrom as have been approved
by the Municipality's Chief Building Official pursuant to Section 6.4(c).
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(1) The telephone lines, cable T.V. and gas mains have been installed and approved
by the Municipality's Engineer.
(g) The Developer agrees that the preceding requirements in this Section are in
addition to and not in substitution of the requirements of the Building Code Act,
1992, S.O. 1992, c.23, and any amendments thereto and regulations thereunder
with respect to certificates for occupancy.
8.11 Special Building Permits/Model Homes
Pursuant to Section 8.9 building permits are not obtainable until certain services are installed
and approved by the Municipality's Engineer. The Municipality agrees that if the Developer
or a builder wishes to obtain a building permit prior to the installation of services,as set out
in Section 8.9,a permit may be issued provided the Developer or Builder has executed a No-
Occupancy Agreement(Schedule"I")and the Municipality may require a deposit or Letter
of Credit as a guarantee of no-occupancy. In the event that the Developer fails to meet all
the requirements set out in Section 8.10 for any building permit that is issued pursuant to the
Developer's delivery of a No-Occupancy Agreement, the Developer hereby acknowledges
that the deposit shall be immediately forfeited to the Municipality. Such failure to meet the
Section 8.10 obligations shall constitute a breach of this Agreement and the Municipality
may immediately draw down any security held under this Agreement to complete any work
required or fulfill any other requirements of Section 8.10 for any model home that was built
pursuant to this Section 8.11.
8.12 Right to Enter into an Agreement
The Developer agrees not to call into question directly or indirectly in any court or
administrative proceeding or action, whatsoever in law or in equity, the right to the
Municipality to enter into this Agreement and to enforce each and every term,covenant
and condition herein contained and this Agreement may be pleaded as an estoppel against
the Developer in any such proceeding.
The Developer acknowledges that the Municipality is entering into this Agreement and
approving the Plan on the express representation of the Developer that it and its
successors and assigns shall observe and perform all the provisions of this Agreement
and that the Municipality is of the opinion that the Plan would not be in the public interest
if the Developer, its successors and assigns, the owner or owners from time to time of
the land within the Plan were not obligated to observe and perform all the provisions
hereof except to the extent the Municipality may lawfully change them.
8.13 Successors and Assigns
The covenants, agreement,conditions,and undertakings herein contained on the part of
the Developer shall run with the land and shall be binding upon it and upon its successors
and assigns as owners and occupiers of the said lands from time to time.
8.14 Notification to Purchaser
The Developer shall in every Agreement of Purchase and Sale or Offer to Purchase
pertaining to any Lot or Block within the Plan notify each purchaser of all of the payments
to be made by the purchaser to the Municipality pursuant to this Agreement and all of the
provisions of this Agreement which shall continue in force after the completion of the sale.
Further, the Developer shall furnish a list of those services included in the purchase,
specifying those installed and those to be installed at no additional cost.
8.15 Scheduling,Progress and Completion
The Developer shall commence construction of services within eighteen(18)months of
the signing of this Agreement or the depositing of the Plan in the Land Registry Office,
whichever is earlier. Within eighteen(18)months of the date of commencement of the
servicing of any phase,the Developer shall complete the installation of the Stage 1 and
Stage 2 services. In any phase,the top coat of asphalt shall be completed within twenty-
-20-
four (24) months of preliminary acceptance of Stage 2 of the services; unless written
consent altering this condition is received from the Municipal Engineer. Failure to adhere
to the above schedule may result in the Municipality completing the Works in accordance
with Section 3.7 of this Agreement. If the development is phased, the date for
commencement of construction applicable to each subsequent phase may be delayed for
up to five(5)years,on a phase by phase basis. Failure to commence construction within
the time schedule above may result in the Municipality declaring this Agreement to be
null and void, and the Municipality may deem the property not to be a Plan of
Subdivision.
8.16 No Municipal Liability
This Agreement and the provisions herein do not give the Developer or any person
acquiring any interest in the land within the Plan(each hereinafter in this clause called
"such person"),any rights against the Municipality or the Municipality's Engineer with
respect to the failure of any such person to perform any obligations under this Agreement
or the failure of the Municipality to force any such person to perform any obligations
under this Agreement or any negligence of any such person in the performance of the
said obligations.
The only duty and responsibility of the Municipality's Engineer arising out of this
Agreement is to the Municipality and this Agreement. Any work or services done or
performed by the Municipality's Engineer under this Agreement do not in any way create
any liability on the part of the Municipality or the Municipality's Engineer to the
Developer or any person acquiring any interest in the land within the Plan.
8.17 Assignment
The Developer shall not assign this Agreement without ten (10) days prior written
consent of the Municipality,which consent may not be unreasonably withheld.
8.18 Conflict
In the event of any conflict between or among the plans and specifications relating to the
construction of the Works, the Municipality's Engineer shall decide which provisions
shall prevail.
8.19 Severability
If any term, covenant or provision of this Agreement shall be found or declared by a
Court of competent jurisdiction to be invalid, unenforceable or ultra vires, such term,
covenant or provision shall be conclusively deemed to be severable from all other terms,
covenants and provisions of this Agreement and the remainder of this Agreement shall
be and remain in full force and effect.
8.20 Amendment
Without in any way limiting the rights of the Municipality,the Developer agrees that the
Municipality may,with the consent of the then registered owner of any land within the
Plan,amend this Agreement insofar as it specifically affects such land or any part thereof.
Any amendments to this Agreement shall be agreed upon by the parties in writing.
8.21 Further Assurances
The Developer agrees that it shall and will,on the request of the Municipality,make,do,
execute or cause to be made, done or executed all such further and other deeds, acts,
things and assurances to ensure the full implementation of this Agreement and to satisfy
the intention of the parties as set out in this Agreement.
-21-
8.22 Joint and Several
All terms,covenants,provisions and obligations of the Developer in this Agreement shall
be joint and several.
8.23 Headings
The headings contained herein are for reference only.
8.24 Enurement
This Agreement shall be binding upon and enure to the benefit of the parties hereto and
Its respective heirs,executors,administrators,successors and assigns.
SECTION 9—FINANCIAL PROVISIONS
9.1 Development Charges,Drainage and Local Improvement Charges
Development Charges shall be paid in accordance with the Municipality's Development
Charges By-law,as amended from time to time.
The Developer agrees to pay for all arrears of taxes outstanding against the property
herein described before the approval of the said Plan is obtained. The Developer further
undertakes and agrees to pay all taxes levied on the said lands on the basis and in
accordance with assessment and collector's roll entries until such time as the lands herein
being subdivided have been assessed and entered on the Collector's Roll according to the
Registered Plan.
Before the Plan is approved,the Developer agrees to commute and pay all charges made
with respect to the Drainage Act, the Local Improvement Act, and the Municipal Act,
including but not limited to charges or rates outstanding in respect of the Lands under
any sewer rate and/or water rate By-law which are assessed against the property on the
Plan. Before the Plan is approved, the Developer agrees to commute and pay the
Municipality's share of any charges made under the Drainage Act, the Local
Improvement Act and the Municipal Act presently servicing this property and assessed
against it.
9.2 Securities
Prior to registering this Agreement,the Developer shall deposit with the Municipality to
cover the faithful performance of the contract for the installation of the services and the
payment of all obligations and contingencies arising thereunder the following securities:
(a) Cash in the amount of One Hundred Percent(100%)of the estimated cost of all of
the Works as set out in Schedule"E"and as approved by the Municipality,or
(b) An irrevocable Letter of Credit from a chartered bank,issued in form and content
satisfactory to the Municipality's Solicitor,in the amount of One Hundred Percent
(100%) of the estimated cost of all Works as set out in Schedule "E" and as
approved by the Municipality,or
(c) Some combination of cash and Letter of Credit,totaling 100%of the Schedule"E"
estimate.
(d) Prior to depositing the securities, the Developer's Engineer shall submit an
estimate of the cost of the Works to the Municipality's Engineer for approval.
When the cost estimate has been approved it will be set out in Schedule"E"of this
Agreement and will become the basis for the limits of these securities.
-22-
(e) All Letters of Credit shall be for a minimum guaranteed period of one(1)year or
such longer time as the Municipality may decide. All Letters of Credit referred to
in this Section shall contain the following clause:
"It is a condition of the Letter of Credit that it shall be deemed to be automatically
extended without amendment from year to year from the present or any future
expiration date thereof unless at least thirty(30)days prior to the present or any
future expiration date,we notify you in writing by registered mail that we elect not
to consider this Letter of Credit to be renewable for any additional period."
(f) Unless each and every Letter of Credit is renewed as noted above,the Municipality
shall have the absolute right to refuse to issue building permits and to prohibit
occupancy of homes,whether partially or fully completed,from the said date thirty
(30)days prior to the expiration of that Letter of Credit.
(g) The amount for securities shall be submitted by the Engineer for the Developer to
the Municipality's Engineer for review. The agreed upon security amount shall be
inserted in Schedule"E"to this Agreement.
The Municipality reserves the right,at any time,to review the amount of security
deposited in light of the value of the work remaining to be completed for any
current or subsequent phases of the project and to require an adjustment in the
securities, such adjustment to be based upon any anticipated changes to site
conditions or construction costs.
9.3 Reduction of Securities
An application for the reduction of the security on deposit with the Municipality pursuant
to Section 9.2 herein may be made no earlier than thirty (30) days after the
commencement of construction of the Works and every thirty(30)clear days thereafter.
(a) To obtain a reduction in security the Developer shall file with the Municipality's
Engineer a written application in accordance with Schedule"J"attached hereto.
(b) The application shall include written confirmation from the Developer's Engineer:
• describing the Works constructed as at the date of the application and a
calculation of the cost thereof.
• confirming that the Works have been installed by the Developer with full time
supervision of the Developer's Engineer and in accordance with the
requirements of this Agreement and schedules hereto.
• describing the Works remaining to be completed as at the date of the
application and a calculation of the estimated cost thereof.
(c) The value of the reduction shall be determined by the Municipality's Engineer who
shall give a certificate to the Municipality confirming the amount of the reduction
of the security and the amount of the security remaining on deposit with the
Municipality.
(d) The value of the reduction shall be based upon the value of the Works remaining
to be completed by the Developer plus ten percent(10%)of the value of the Works
completed to the date of the application.
(e) Subject to any outstanding deficiencies or contingencies, the Municipality
throughout the maintenance period shall hold as security the greater of ten percent
(10%)of the estimate of the cost of the Works as set out in Schedule"E"or twenty
thousand dollars($20,000.00).
9.4 Statutory Declaration of Accounts Paid
The Developer agrees that upon applying for a discharge of securities or for a Certificate
of Preliminary Acceptance for the services, it shall supply the Municipality with a
Statutory Declaration that all accounts for work and materials for said services have been
-23-
paid except normal guarantee holdbacks and that there are no claims for liens or
otherwise in connection with such work done or materials supplied for or on behalf of
the Developer in connection with the Subdivision.
9.5 The Construction Act,R.S.O. 1990 c.C.30
The Developer agrees that it will hold back in its payments to any Contractor who may
construct the services,such sums as are provided in accordance with the Construction
Act,R.S.O. 1990,c.C.30,and will otherwise indemnify and save harmless the
Municipality against any claims,actions or demands for construction liens or otherwise
in connection with the works and all costs in connection therewith,and on the demands
of the Municipality's Solicitor will forthwith take such steps to immediately discharge
all liens upon the services.
Notwithstanding anything to the contrary contained in this Agreement,the Developer
hereby agrees that the filing of any liens pursuant to the said Construction Act,with
respect to the land described in Schedule"A"attached hereto,shall constitute a default
by the Developer of the terms of this Agreement and shall entitle the Municipality to
draw on any or all of the security referred to in Section 9.2 of this Agreement and to
utilize said draw to make payment into Court of the holdback together with costs.
9.6 Partial Release
The Municipality of Kincardine has enacted Bylaw No. ,which provides that the
CAO may execute a partial release of this Agreement,which partial release shall be in
the form attached hereto as Schedule"K"and the issuance of same shall be at the CAO's
sole discretion,acting reasonably.
SECTION 10—SPECIAL PROVISIONS
10.1 The Developer and the Municipality agree that the provisions set forth in the attached
Schedule"M"form an integral part of this Agreement.
SECTION 11—FINALIZATION OF AGREEMENT
11.1 The Developer and Mortgagee(s), if any, hereby authorize the Municipality to add to
Schedule "A" to this Agreement and to all deeds, easements and other documents
delivered by the Developer to the Municipality to fulfil the terms of this Agreement,the
number of the Plan once registered.
-24-
SECTION 12—SIGNATURES
IN WITNESS WHEREOF the parties hereto have affixed their hands and seals attested to by the
hands of the proper officer duly authorized on its behalf.
West ' ige on,he L. .
Mr. *•ei Ori W
Preside y
I/We ha` authority to bind the Corporation
THE CORPORATION OF THE MUNICIPALITY OF
KINCA r S INE
Ale _.-
.yo
Im//►!
AO
We have authority to bind the Corporation
Developer's Address: P.O.Box 2088,Orillia,ON L3V 6R9
Developer's Telephone: 705-326-9000,ext. 1
Developer's email: aorsi(a,orsigroup.com
-25-
SCHEDULE"A"OF AGREEMENT
Note: It is understood and agreed that this Schedule forms part of the Municipality's Agreement.
DESCRIPTION OF LANDS BEING SUBDIVIDED
PIN 33303.0877 LT Inlerest/Estete Fee Simple
Description PART LOTS 21,22,23 AND 24 CONCESSION A KINCARDINE,DESIGNATED AS
PARTS 1 TO 51.PLAN 3810233;SUBJECT TO AN EASEMENT OVER PARTS 4,8,9,
10,11,12,24,31,32,44,45,46 AND 47,PLAN 3R10233 AS IN R335931;SUBJECT TO
AN EASEMENT OVER PARTS 6,8,9,10,28.32,44 AND 47,PLAN 3R10233 AS IN
R337820;SUBJECT TO AN EASEMENT OVER PARTS 6,8,9,10,28,32,44 AND 47,
PLAN 3810233 AS IN R302742;SUBJECT TO AN EASEMENT OVER PARTS 6,8,9,10,
28,32,44 AND 47,PLAN 3R10233 AS IN R300473;SUBJECT TO AN EASEMENT
OVER PARTS 6,8,9,10,28,32,44 AND 47,PLAN 3R10233 AS IN 8321388;SUBJECT
TO AN EASEMENT OVER PARTS 6,8,9,10,28,32,44 AND 47,PLAN 3Ri0233 AS IN
R306007 PARTIAL RELEASE BY BR140673;SUBJECT TO AN EASEMENT OVER
PARTS 21 AND 39,PLAN 3R10233 AS IN R386481 PARTIAL RELEASE BY 8R140062;
SUBJECT TO AN EASEMENT OVER PARTS 21 AND 39,PLAN 3R10233 AS IN
8364356 PARTIAL RELEASE BY 8R140063;SUBJECT TO AN EASEMENT OVER
PARTS 21 AND 39,PLAN 3R10233 AS IN R389142;SUBJECT TO AN EASEMENT
OVER PARTS 20,21,22,39,42 AND 43,PLAN 3R10233 AS IN R32268 PARTIAL
RELEASE BY BY150420;SUBJECT TO AN EASEMENT OVER PARTS 21,22,39,42
AND 43,PLAN 3R10233 AS IN R189637 PARTIAL RELEASE BY BR140061;SUBJECT
TO AN EASEMENT OVER PARTS 20,27,38 AND 39,PLAN 3R10233 AS IN KN17093;
SUBJECT TO AN EASEMENT OVER PARTS 2,9,11 AND 13,PLAN 3R10233 AS IN
KN15133;SUBJECT TO AN EASEMENT OVER PART 16,PLAN 31110233 AS IN
KN15145;SUBJECT TO AN EASEMENT OVER PARTS 24,44 AND 45,PLAN 3R10233
AS IN 8335925;SUBJECT TO AN EASEMENT OVER PARTS 21,29,33,35,38,39,40.
42 AND 43,PLAN 3R10233 AS IN R400051;SUBJECT TO AN EASEMENT OVER
PARTS 6,24,25,28,31,32,36,37,44 AND 45,PLAN 3R10233 AS IN R400052;
SUBJECT TO AN EASEMENT OVER PARTS 4.6.8,9,10.11.12.25,31,32,36,37,44.
45.46 AND 47,PLAN 3R10233 AS IN R295263,SUBJECT TO AN EASEMENT OVER
PARTS 4,6,8,9,10,11,12,28,31,32,37,44,45,46,47,48,49 AND 50,PLAN
3R10233 IN FAVOUR OF PART LOT 23,CONCESSION A KINCARDINE,DESIGNATED
AS PARTS 8 AND 9,PLAN 3R6567 AND PART LOT 23,CONCESSION A KINCARDINE
(AS IN R302742).AS IN 8R140043;SUBJECT TO AN EASEMENT OVER PARTS 21,33,
3B,39,40,42 AND 43,PLAN 3R10233 IN FAVOUR OF PART LOT 21,CONCESSION A
KINCARDINE(AS IN 8189837),AS IN BR140046;SUBJECT TO AN EASEMENT OVER
PARTS 21,33.38 AND 39,3R10233 IN FAVOUR OF PART LOT 22,CONCESSION A
KINCARDINE(AS IN R364356),AS IN 8R140047;SUBJECT TO AN EASEMENT OVER
PARTS 21,33.36 AND 39,3R10233 IN FAVOUR OF PART LOT 22,CONCESSION A
KINCARDINE(AS IN R389142),AS IN BR140046;SUBJECT TO AN EASEMENT OVER
PARTS 4,6,8,9,10,11,12,25,31,32,37,44,45,46,47,48,49 AND 50,3R10233 IN
FAVOUR OF PART LOT 22,CONCESSION A KINCARDINE,DESIGNATED AS PARTS 1
AND 2,3R2587 AND PART 2.PLAN 3R5885 AS IN BR140049;SUBJECT TO AN
EASEMENT OVER PARTS 4,6,8.9,10,11.12,28.31,32,37,44,45,46,47,48,49
AND 50,3R10233 IN FAVOUR OF PART LOTS 23 AND 24.CONCESSION A
KINCARDINE,DESIGNATED AS PARTS 7 AND 10,PLAN 3R6567 AS IN 88140050;
SUBJECT TO AN EASEMENT OVER PARTS 4,6,8,9,10,11,12.28,31,32,37,44,45,
46,47,48,49 AND 50,3R10233 IN FAVOUR OF PART LOTS 23 AND 24,CONCESSION
A KINCARDINE(AS IN R337820),AS IN BR140051;SUBJECT TO AN EASEMENT
OVER PARTS 4,6,8,9,10,11,12,28.31,32.37,44,45,46.47,48.49 AND 50,
3R10233 IN FAVOUR OF PART LOT 23,CONCESSION A KINCARDINE(AS IN
R33473),AS IN BR140052;SUBJECT TO AN EASEMENT OVER PARTS 4.6,8,9.10,
11,12,28.31,32,37,44,45,46,47,48,49 AND 50,3R10233 IN FAVOUR OF PART
LOT 23,CONCESSION A KINCARDINE(AS IN R321388),AS IN BR140053;SUBJECT
TO AN EASEMENT OVER PARTS 4,6.8,9,10,11,12,28,31,32,37,44,45.46,47,48,
49 AND 50,3R10233 IN FAVOUR OF PART LOT 23,CONCESSION A KINCARDINE,
DESIGNATED AS PARTS 1 AND 2,PLAN 3R7616 AS IN BR140054;SUBJECT TO AN
EASEMENT OVER PARTS 4,6,8,9,10,11.12,28,31,32,37,44,45,46,47,48,49
AND 50,3R10233 IN FAVOUR OF PART LOT 23,CONCESSION A KINCARDINE AS IN
R33473,EXCEPT PART 2,PLAN 3R7616,AS IN BR140055;SUBJECT TO AN
EASEMENT OVER PARTS 21,33,38 AND 39,3R10233 IN FAVOUR OF PART LOT 22,
CONCESSION A KINCARDINE(AS IN R386481),AS IN 88140658;SUBJECT TO AN
EASEMENT OVER PARTS 21.33,38.39.40.42 AND 43.PLAN 3R10233 IN FAVOUR
OF PART LOT 21,CONCESSION A,KINCARDINE,AS IN R32268 AS IN BR150419:
MUNICIPALITY OF KINCARDINE
-26-
SCHEDULE"B"OF AGREEMENT
Note: It is understood and agreed that this Schedule forms part of the Municipality's Agreement.
A Draft Plan of Subdivision prepared by D.Culbert Ltd,(their file PL070939),dated December
5,2013,as finally revised October 18,2015. The Draft Plan is on file in the offices of the
Municipality of Kincardine.
-27-
SCHEDULE"C"OF AGREEMENT
Note: It is understood and agreed that this Schedule forms part of the Municipality's Agreement.
MUNICIPAL SERVICING GUIDELINES
The Municipal Servicing Guidelines published by the Municipality dated September 15,2017,
shall provide the basis of designing municipal services with the Development. The Municipality
reserves the right,should those Servicing Guidelines be amended within three years of the date
of registration of the first phase of any Development to require the Developer to alter its designs
to satisfy those new Guidelines.
-28-
SCHEDULE"D"OF AGREEMENT
Note: It is understood and agreed that this Schedule forms part of the Municipality's Agreement.
CHECKLIST OF WORKS TO BE CONSTRUCTED
1. Roads complete with asphalt paving and curb and gutter X
2. Storm Water Management Plan,storm sewers and private drain connections X
3. Sanitary sewers and building connections to the lot line X
4. Water distribution system,fire protection and building connections
to the lot line X
5. Grading and requirements of a site grading plan X
6. Underground electrical distribution system and an electrical service X
7. Street lighting X
8. Utility obligations—telecommunications,electrical services X
9. Sidewalks X
10. Topsoil and sod on boulevard from property line to curb X
11. Pedestrian walkways X
12. Tree Management,Retention,and Replacement Plan X
13. Lot house number signs X
14. Street name signs X
15. Traffic signs,as required X
Note: Works Required Denoted by Q
Municipality of Kincardine o
West Ridge on the Lake '"
Security Cost Estimates c
June 29,2020 A
Estimates for Each Phase co
CA
Item 1 1A 2 3 4 5 6 7 o
4 a
1.Site Preparation and Earthworks 39,000.00 21,000.00 10,000.00 6,000.00 6,000.00 6,000.00 13,000.00 8,000.00 N Q
2.Sanitary Sewer Works 241,000.00 148,000.00 146,000.00 97,000.00 181,000.00 120,000.00 56,000.00 243,000.00 d
3.Stormwater Works 698,000.00 432,000.00 256,000.00 106,000.00 229,000.00 214,000.00 345,000.00 342,000.00 0 eiln
CD
cA co
4.Watermains and Appurtenances 329,000.00 197,000.00 136,000.00 77,000.00 92,000.00 155,000.00 38,000.00 207,000.00 M Rco., Ii'
5.Road and Surface Works 755,000.00 - 438,000.00 242,000.00 309,000.00 386,000.00 157,000.00 617,000.00 S' - C
6.Stormwater Management Works 620,000.00 394,000.00 - - - 432,000.00 - n
6.Street Lights and conduits - - - - - b
Total Construction 2,682,000.00 1,192,000.00 986,000.00 528,000.00 817,000.00 1,313,000.00 609,000.00 1,417,000.00
Allowance for Engineering Review 134,000.00 60,000.00 49,000.00 26,000.00 41,000.00 66,000.00 30,000.00 71,000.00 y O
tj
Subtotal 2,816,000.00 1,252,000.00 1,035,000.00 554,000.00 858,000.00 1,379,000.00 639,000.00 1,488,000.00 0 C 0
HST-13%(rounded) ' 366,000.00 ' 163,000.00 ' 135,000.00 ' 72,000.00 F 112,000.00 ' 179,000.00 ' 83,000.00 ' 193,000.00 y H
Total Security 3,182,000.00 1,415,000.00 1,170,000.00 626,000.00 970,000.00 1,558,000.00 722,000.00 1,681,000.00 ,x CA o CJ
Note: 1. Under the preservicing clause in Schedule M,Item 14, the developer may complete some preservicing of Phase 1, being called in these estimates O O
o CI
Phase 1A. Security for that work will be 100%of watermain items plus 20%of the balance of the other works for a total of$470,000.
2. Prior to the time to commence the balance of the Phase 1 works,the required security will be recalculated based the value of remaining work and 5 y
co
Section 9.3 of this agreement.
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-30-
SCHEDULE"F"OF THE AGREEMENT
Note: It is understood and agreed that this Schedule forms part of the Municipality's Agreement.
LIST OF LOTS UNSUITABLE FOR BUILDING PURPOSES—CLAUSE 6.3
None
-31-
SCHEDULE"G"OF THE AGREEMENT
Note: It is understood and agreed that this Schedule forms part of the Municipality's Agreement.
OWNER'S FINAL GRADING CERTIFICATE
The undersigned hereby certifies to the Corporation of the of (the
"Municipality")that the foundations of the buildings and structures and any openings in any such
foundation walls constructed on the following property:
STREET NO. STREET
MUNICIPALITY
LOT/BLOCK REGISTERED PLAN NO.
Have been constructed,at or above the elevations illustrated on the overall Certified Building
Lot Site Plan(as approved by or on behalf of the Municipality)referred to in the Agreement
registered against the title to the above property as shown on the As Recorded grading survey
attached.
The undersigned further certifies to the Municipality that a field survey has been completed by
the undersigned and that:
1. The final grading of the above referred to property has been completed in substantial
compliance with the Certified Building Lot Site Plan referred to in the Agreement.
2. The grade elevation of all lot boundaries and corners including the front lot corners of the
property are in substantial compliance with the Certified Building Lot Site Plan;and
3. The above lot has been graded to provide positive drainage in the front,rear and sideyard and
that there is no area of the property which is subject to ponding of water;and
4. That in all cases,the final grading conforms to the intent of the grading plan.
This certificate is given and delivered to the Municipality in full knowledge that the Municipality
relies on this certification in providing a release of the applicable Agreement affecting this
property.
DATED at ,Ontario this day of ,20 .
Signature of OLS/Professional Engineer
NOTE: Copies of this Owner's Final Grading Certificate are available at the Municipality's
Building Department.
-32-
SCHEDULE"H"OF AGREEMENT
Note: It is understood and agreed that this Schedule forms part of the Municipality's Agreement.
LANDS FOR MUNICIPAL PURPOSES TO BE CONVEYED TO THE MUNICIPALITY
The following lands will be conveyed to the Municipality on a phased basis,such that the lands
applicable to a specific phase will be conveyed with the development of that phase:
Stormwater Management—Blocks 215,217,219,223,230
Open Space/Parkland—Blocks 221,222,224,229
Environmental Protection—Blocks 220,225,227,228,233
Walkways/Service—Blocks 216,218,226,231,234
LIST OF EASEMENTS TO BE GRANTED TO THE MUNICIPALITY
For drainage purposes:
• Lots 24-34 rear yards,36&37-side yards,39-50 rear yards
• Blocks 208 and 209
• Lots 84&85-side yards,86-100 rear yards
• Blocks 210 and 211
• Lots 162-189 rear yard
For access to Storm Outlet,an easement across private lands at the northerly end of Samona
Beach Lane.
The development of this subdivision will be completed in phases. The initial Phase 1 registration
will incorporate all of the subdivision roads as well as the lots and blocks applicable to Phase 1.
Individual lots and blocks will be created in each of the remaining phases when a new M-Plan is
registered. The chart below provides a general reference for recording future Registered M-Plan
numbers and the associated new Block numbers in each phase:
Draft M-Plan M Plan
Plan Anticipated no.for Block
Block Purpose Phase No. That Phase Number
219 Stormwater Management 1
220 Environmental Protection 1
221 Open Space/Parkland 1
222 Open Space/Parkland 1
223 Stormwater Management 1
215 Stormwater Management 2
216 Walkway/Services 2
217 Stormwater Management 2
218 Walkway/Services 2
224 Open Space/Parkland 4
226 Walkway/Services 5
228 Environmental Protection 5
229 Open Space/Parkland 5
230 Stormwater Management 5
231 Walkway/Services 5
225 Environmental Protection 6
227 Environmental Protection 6
233 Environmental Protection 7
234 Walkway/Services 7
-33-
SCHEDULE"I"OF AGREEMENT
Note: It is understood and agreed that this Schedule forms part of the Municipality's Agreement.
THIS NO OCCUPANCY AGREEMENT dated this day of 20 ,
BETWEEN:
[INSERT OWNER]
Hereinafter called"Owner"
and
THE CORPORATION OF THE
MUNICIPALITY OF KINCARDINE
Hereinafter called"The Municipality"
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of other
good and valuable consideration and the sum of One($1.00)Dollar of lawful money of Canada,
the Parties hereto mutually covenant and agree as follows:
1. In consideration of the Municipality issuing a building permit to the Owner for
the Owner
covenants and agrees that it will not apply for an occupancy permit until the services
referred to in the Subdivision Agreement between the Municipality and
dated ("the Agreement") have been
installed to the satisfaction of the Municipality;
2. The Municipality hereby acknowledges that it has a deposit from the Developer pursuant
to the Agreement in the sum of and will use its best efforts to
see to it that the services are completed by
THIS AGREEMENT shall be binding upon and enure to the benefit of the parties hereto
and their respective heirs,executors,administrators,successors and assigns.
IN WITNESS WHEREOF the parties hereto have executed this Agreement.
SIGNED,SEALED AND DELIVERED
This day of ,20 .
OWNER
THE CORPORATION OF THE
MUNICIPALITY OF KINCARDINE
Mayor:
CAO
We have authority to bind the Corporation.
-34-
SCHEDULE"J"OF AGREEMENT
Note: It is understood and agreed that this Schedule forms part of the Municipality's Agreement.
APPLICATION FOR REDUCTION OF SECURITY
To: (Name of Municipality's Engineer),Engineer, of
Developer: (Name of Developer)
Agreement: (Date of Agreement)
Property: (Legal Description of Property)
Application No. (Specify number of application)
The undersigned, (Name of Developer's Engineer) being the Developer's Engineer, hereby
confirms that the Works constructed as at the date of this Application have been installed by the
Developer under the full time supervision of the Developer's Engineer and in accordance with the
requirements of the Agreement between the Developer and the Municipality.
The Works installed to the date hereof and the calculation of the cost thereof are detailed in the
schedule attached hereto.
Further, the undersigned Developer's Engineer hereby confirms that the Works remaining to be
constructed as at the date of this Application and the calculation of the estimated cost thereof are
also detailed in the schedule attached hereto.
This Application is given and delivered to the Municipality's Engineer with full knowledge that
the Municipality's Engineer and the Municipality will rely upon the information contained herein
in granting a reduction of the security held by the Municipality pursuant to Section 9.2 of the said
Agreement affecting the above property.
DATED at ,Ontario this day of ,20 .
Signature of Developer's Engineer
Name of Developer's Engineer
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SCHEDULE"K"OF AGREEMENT
Note: It is understood and agreed that this Schedule forms part of the Municipality's Agreement.
FORM OF PARTIAL RELEASE:
PARTIAL RELEASE
IN FAVOUR OF:
Herein called the"Owner"
WHEREAS the Owner entered into certain obligations in favour of the Corporation of the
Municipality of Kincardine under a Subdivision Agreement registered against the lands hereinafter
described as Instrument No.
AND WHEREAS the Owner has satisfied and fulfilled all of those obligations.
NOW THEREFORE the Corporation of the Municipality of Kincardine releases the Owner from
the obligations contained in the said Agreement,with the exception of the lot grading provisions
in Section 6.5 in said Instrument No. ,as amended,and certifies that all other provisions of
that Agreement, as amended, are no longer binding with respect to the said lands. The lands
released hereby are:
ALL AND SINGULAR that certain parcel or tract of land and premises situate,lying and being in
the of ( ),County of and being composed of Lot
Registered Plan ,the of has,by By-law ,registered
in the said registry office as Instrument No. ,provided that this Partial Release shall
be executed by the CAO and sealed with its seal.
DATED this day of ,20
THE CORPORATION OF THE MUNCIPALITY OF KINCARDINE
CAO
I have authority to bind the Corporation
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SCHEDULE "L" OF AGREEMENT
Note: It is understood and agreed that this Schedule forms part of the Municipality's Agreement.
CONDITIONS OF DRAFT APPROVAL
The Conditions of Draft Approval for File No.41T-2008-02.21 as Schedule B to the
Memorandum of Oral Decision and Order of the Ontario Municipal Board,Dated April 6,2016,
OMB Case No.PL07039-0070169.
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SCHEDULE "M"OF AGREEMENT
Note: It is understood and agreed that this Schedule forms part of the Municipality's Agreement.
SPECIAL PROVISIONS
The following special provisions apply to this Agreement:
1. Conveyances:
The Developer agrees that prior to the registration of the m-plan and conveyance of any
blocks,roadways,trails,service corridors and reserves to the Municipality,the Developer
shall ensure that all lands to be conveyed to the Municipality are free and clear of any and
all encumbrances,save and except for any existing utility easements and any private
access easements or rights-of-way which are agreed to by Municipality.
The Developer and Municipality specifically acknowledge that there are historical
permanent legal access easements or rights-of-way,as well as recent access easements
conveyed by the Developer,registered in the Bruce County Land Registry Office(No.3)
in favour of abutting landowners granting ingress and egress over,along and upon
portions of Blocks 225,as identified on the Draft Plan of Subdivision as referenced in
Schedule B. The Developer agrees that Block 225 shall be free and clear of all
encumbrances when conveyed to the Municipality,save and except for the said existing
private access easements,provided that those easements are in good standing at the time
of conveyance to the Municipality,and for existing utility easements.The Developer
further agrees that during the construction of the servicing of Phases 5 and 6 of the
development,and prior to the conveyance of Block 225 to the Municipality,that it
will restore the private access across Block 225 in accordance with the requirements of
the easements and to the satisfaction of the Municipality. Notwithstanding anything to
the contrary,the conveyance of Block 225 shall occur prior to the Developer
commencing Phase 7,unless otherwise agreed by the Municipality.
2. External Sanitary Sewers:
The Municipality acknowledges that the Developer has paid its share of the oversizing of
sanitary sewers through the adjacent"Huron Ridge"Subdivision. Further,the
Municipality has completed downstream trunk sanitary sewers and a replacement of the
Connaught Park pumping station. The Developer acknowledges that it will pay its share
of the cost of that infrastructure through Development Charges.
3. County Road 23:
The Developer agrees to construct northbound left turn lanes and southbound right turn
tapers on Bruce County Road 23 to the satisfaction of the County of Bruce and the
Municipality of Kincardine.
4. Cottage Access:
The Developer acknowledges that arrangements have been put in place to amend rights-
of-way and/or easements for access by the adjacent cottagers to the west. The Developer
and his contractors shall insure that access is available to cottagers at all times during the
construction of the Works in any of the Phases.
5. SWM Pond Fencing:
The Developer agrees that they will install standard 1.5 m.high black chain link fence
around the Stormwater Management Facilities to the satisfaction of the Municipality.
Gates shall be provided in locations approved by the municipality for access and
maintenance of the facilities.
6. Lot Grading and Drainage:
The Lot Grading and Drainage Plan shall indicate limitations on basement and cellar
construction. The Plan shall indicate which lots are suitable for basements and cellars
and which are not.The Developer shall insure that a Notice and Warning Clause is
included on all offer of purchase and sale;and that said clauses are registered on title on
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any lots which are not suitable for basement and cellar installation or construction.
Further,the Developer shall insure that the Lot Grading and Drainage plan includes any
lines which show setbacks for erosion,flooding,or other restrictions on said lots.
7. Site Plan Agreements on Medium Density Blocks:
Site Plan agreements will be required for Blocks 212,213,and 214.The Developer
acknowledges that any subsequent Site Plan Agreement for the development of Blocks
212 and 213 shall provide for enhanced entranceway feature landscaping,as required by
the Municipality,through the site plan approval process.
8. Notice and Warning Clauses:
The Developer agrees to insert the following in all offers of purchase and sale for
residential parcels:
• Perched Groundwater:Purchasers are advised that basement and cellar
construction may be restricted or prohibited in areas of perched groundwater.
• Property Monuments: Purchasers are advised that in addition to the property
monuments required by the Surveyors Act and other legislation that additional
property line delineation markers have been placed on the lot line abutting the
road allowance and furthermore that such monuments shall not be removed or
altered without the written approval of the Municipality of Kincardine.
• Environmental Protection Zone:Purchasers of residential lots abutting an'EP'
zone are advised that there shall be no site alteration,grading or tree removal
within the'EP'Zone except in accordance with an approved Plan.
9. Archeology:
Should human remains be identified during operations,all work in the vicinity of the
discovery will be suspended immediately.Notification will be made to the Ontario
Provincial Police,or local police,who will conduct a site investigation and contact the
district coroner.Notification must also be made to[MTCS]and the Registrar of
Cemeteries,Ministry of Government Services.
Should other cultural heritage values(archaeological or historical materials of features)
be identified during operations,all activity in the vicinity of the recovery will be
suspended and the Ministry of Culture archaeologist contacted.This condition provides
for the potential for deeply buried or enigmatic local site areas not typically identified in
evaluations of potential.
10.Canada Post:
The Developer agrees to make satisfactory arrangements for the distribution and delivery
of mail in accordance with Canada Post and to the Municipality.
11. Saugeen Valley Conservation Authority(SVCA):
Prior to any grading or construction on the site and prior to Final Approval,the
Developer shall submit to the SVCA for their review and approval,as needed,the
following Plans:
• Servicing and Stormwater Management
• Environment and Natural Heritage
• Sediment and Erosion Control Plan
• Tree Retention and Compensation Plan
• Dune Management Plan
• Coastal Engineering Report
• Geotechnical Slope Stability analysis
All works shall be completed in accordance with these works.The Developer agrees to
notify the SVCA at least 48 hours prior to the initiation of any on-site development.
The Developer agrees to notify purchasers that the SVCA Regulation is applicable to Lots
1,9-23, 102, 103, 105-107, 119-122, 125, 126, 130, 131, 151-158, 193 and 194.
12.Stormwater Management Facilities:
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Stormwater management(SWM)facilities and associated storm sewers are part of the
Stage 1 services as defined in Section 4.1 of this agreement. Two facilities are to be
constructed. Each will be constructed in the initial Phase associated with their drainage
areas. Preliminary Acceptance of these Works will be granted as part of that initial
servicing phase for each facility's drainage area. Sections 4.2 and 4.3 are amended for
the SWM facilities and they will not receive Final Acceptance until:
• Final Acceptance has been granted for all Stages of all of the Phases of the
development that drain to that facility.
• All silt and sediment has been removed from the facility.
• Confirmation by the developer's engineer has been received confirming that the
design storage volume has been achieved. Cleaning of the facility may be
required.
• Monitoring or other requirements of the Certificate of Authorization(ECA)
provided by the Ministry of Environment,Conservation and Parks(MECP)has
been completed satisfactorily and filed with the Municipality.
• The ownership of all MECP ECA's have been transferred to the Municipality.
13.Permits and Approvals:
The Developer agrees that no construction or installations of any kind(ie.clearing or
servicing of land)involved with this Plan shall be undertaken prior to entering into a site
alteration agreement or Subdivision Agreement and obtaining all necessary permits,
approvals and/or certificates that need to be issued in conjunction with the development
of the Plan of Subdivision,unless approved by the appropriate approval authority in
writing.
14.Phasing of Development:
The Developer and the Municipality acknowledge and agree that the future residential
blocks within the Registered Plan of Subdivision,attached hereto as Schedule"B",are to
be developed in six additional phases,being Phase 2 to 7 inclusive.
The Developer and Municipality agree that the number of phases may be reduced or
expanded upon mutual agreement of both parties provided fair and reasonable
justification for the change is provided by the Developer.
The lots, and blocks for each future phase shall be created by a new Registered M-Plan
for that phase.The provisions of this Agreement shall remain binding on all of the future
phases.
Prior to registration and development of a future phase,the Developer shall provide the
following to the satisfaction of the Municipality:
• An M-Plan describing the lots,blocks and roads applicable to the phase.
• Reference Plan(s)describing any easement(s)applicable to the phase(i.e.
servicing easements,temporary turning circles,etc.).
• Up-dated engineering work cost estimates,if applicable,and associated fees and
deposits for the phase.
• The required security shall be posted by the Developer as a pre-condition to the
Municipality approving registration of any Phase.
Further to Section 8.3 of the Agreement,the Municipality acknowledges that the
Developer has proposed a phasing scheme that is generally described as follows and as
shown on the Pearson Engineering Phasing Drawing dated June 24,2020,Rev.2:
• Phase 1 —Inverness St.N.extension to Strathmill Drive(northerly junction),
Strathmill Drive from West Ridge Boulevard northerly to Inverness St.N.,West
Ridge Boulevard from County Road 23 to Strathmill Drive,and southerly
Stormwater Management(SWM)facility.
• Phase 2—Strathmill Drive from Inverness St.N.(southerly junction)to West
Ridge Boulevard.
• Phase 3—Oban Street.
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• Phase 4—Strathmill Drive from Inverness St.N.(northerly junction)to Lot 103
• Phase 5—MacAllan Boulevard and northerly SWM facility
• Phase 6—Strathmill Drive from Lot 103 to MacAllan Boulevard
• Phase 7—Springbank Crescent
The Developer Acknowledges that Phases 5 and 6 will be completed concurrently to
provide access between the two halves of the development.
15.PSAB:
Prior to Preliminary Acceptance of any Stage of servicing in any Phase,the Developer,in
addition to providing as recorded drawings,shall provide,in a spreadsheet format
suitable to the Municipality of Kincardine,a detailed inventory or all municipal assets for
input into their asset management database.
16.South Drainage Ditch:
The Developer and the Municipality agree that the Developer will construct the new
culvert and associated works at the southerly connection to Inverness St.North. In lieu
of the Developer completing any remedial work to this southerly drainage ditch beyond
the limits of the new construction,the Developer agrees to pay the Municipality a lump
sum payment of$225,000.00 prior to the issuance of the first building permit in the first
phase of the subdivision.The Municipality will deposit these funds in an appropriate
reserve fund for future maintenance of this drainage feature.
17.Trails/pedestrian connections:
Developer has made provisions for municipally funded trail on County Road 23.
Connections shall be made to existing and proposed municipal trails and parkland as
follows:
• Sidewalk on Block 218 and pedestrian bridge over south watercourse to
municipal park.
• Sidewalk on Block 216 and connection to existing Queen St.sidewalk.
• Sidewalk on Block 234 and connection to edge of pavement on Wickham Cove.
The Municipality acknowledges that a consideration for the conveyance of the lands
zoned"Open Space/Parkland/Walkways"and"Environmental Protection"on the Draft
Plan of Subdivision to the Municipality is that the lands will facilitate public access to the
shoreline of Lake Huron.
18.Access to Storm Sewer Outlet:
The Developer agrees to provide by means of an easement,and provision of a gravel
access road,satisfactory to the Municipality,to access the proposed storm sewer outlet
from the cottage access road to the south of that outfall. Sufficient space shall be cleared
to provide for the turning of maintenance vehicles.
19.Holding Zone:
The lands within this subdivision are subject to a Holding("H")provision on their
zoning. The Developer and the Municipality agree that the removal of the"H"will occur
on a phased basis which coincides with each phase of the subdivision development. The
"H"provision for Phase 1 may be removed when this Agreement is signed by the
Municipality. The developer may apply to the Municipality for the removal of for
removal of the"H"provision on any future development phase subject to the following:
• Registration of a plan to create the lots or blocks within that phase,and the
• Posting of securities for the servicing of that phase.
20.Servicing of a Phase 1 Prior to Registration:
(a) Notwithstanding clause 2.3 (a)of this Agreement which requires registration of
the plan prior to the commencement of construction,the Developer has requested
that it commence installation of the Works in the summer and fall of 2020 which
generally include:
a. Installing the underground services on the extension of Inverness northerly.
b. Construction of the Phase 1 stormwater management facility
c. Construction of the storm sewer outfall and the outfall works to Lake Huron
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It is the intent that the Plan will be registered in the spring of 2021 and that
security would be posted for the full amount of those remaining works as outlined
in Sections 9.2 and 9.3 of this Agreement,prior to the commencement of
construction of the balance of the Phase 1 Works.
(b) The Municipality agrees to consent to this partial pre-servicing provided the
Developer:
a. Posts securities for the work. Security shall be posted for 100%of the value
of all alterations to the existing municipal watermain and appurtenances
within the Phase,plus 20%of the value of all other Works that are part of the
preservicing. Security reductions will be considered to the amount of 10%of
the cost of these interim Works as outlined in Section 9.3 of this Agreement.
b. Has provided proof of liability insurance as required by this Agreement.
c. Has received Municipal,Ministry of Environment,Conservation and Parks,
and Saugeen Valley Conservation Authority approvals of the design drawings
have been received;and the draft of the registered plan has been approved by
the Municipality.
(c) The Developer acknowledges and agrees that such servicing work is done at its
sole risk and the Developer agrees to indemnify and save harmless the
Municipality with respect to any claim,demand,action,cost,suit or loss by
anyone whomsoever which may occur as a result of servicing prior to the
registration of a plan of subdivision.