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3090 To authorize the entering into a Subdivision Agreement between John Boersma, the Town of Tillsonburg and the County of OxfordTHE CORPORATION OF THE TOWN ON TILLSONBURG By-law No. 3090 BEING A BY-LAW TO AUTHORIZE THE ENTERING INTO A SUBDIVISION AGREEMENT BETWEEN JOHN BOERSMA, THE TOWN OF TILLSONBURG AND THE COUNTY OF OXFORD WHEREAS, the Owner (John Boersma), proposes to subdivide on lands described as Part of Lots 11, 19, 56, 84 and 98, Lots 20-551 inclusive, Lots 78-83 inclusive , Lots 99- 123 inclusive and Lot 125, part of Block 131, and Parts of Allen Street, Belmont Avenue and Lyndale Road, Plan 41 M-147, in the Town of Tillsonburg appended as Schedule "A" to Appendix "1" of this By-law; AND WHEREAS the revised draft plan of the land to be subdivided was approved by the Town of Tillsonburg for Part Lot Control; AND WHEREAS prior to the signing of the plan for registration by the County of Oxford, certain conditions, as set out in the draft plan conditions of approval dated the 13th day of February, 2002 must be fulfilled to the satisfaction of Town; AND WHEREAS the entering into of an Agreement has been made as a condition of approval by the County of Oxford and contains all the requirements, financial and otherwise of the Town regarding the construction of roads, installation of services and drainage facilities, and any other matters pertaining to the development of the subdivision; AND WHEREAS the County of Oxford has required as a condition precedent to its approval of the said Subdivision that the Subdivider enter into an Agreement. THEREFORE THE COUNCIL OF THE CORPORATION OF THE TOWN OF TILLSONBURG ENACTS AS FOLLOWS: 1. THAT the Agreement attached hereto and marked Appendix "1" to this by-law be and is hereby approved and the 1V[ayor and Clerk are hereby authorized to execute the same on behalf of the Corporation of the Town of Tillsonburg and to affix the Corporate Seal thereonto. 2. THAT the said Appendix "I" annexed hereto is declared to be part of this By-law in the same manner as if written and incorporated herein. 3. THAT this by-law is enacted pursuant to Section 51(26) of the Planning Act, R.S.O. 1990 and shall come into force and take effect on the date of its final passing. READ a FIRST and SECOND TIME this 26th day of January 2004. READ a THIRD TIME and FINALLY PASSED this 8th day of March 2004. L � PUTY MAYO obert T. Smith CLERK —M4c6el Graves TOWN OF TILLSONBURG SUBDIVISION AGREEMENT PH A SF. I THIS AGREEMENT made the day of BETWEEN: JOHN BOERSMA hereinafter called the "Owners" OF THE FIRST PART - and - THE CORPORATION OF THE TOWN OF TILLSONBURG hereinafter called the "Town" OF THE SECOND PART -and- THE CORPORATION OF THE COUNTY OF OXFORD hereinafter called the "County" OF THE THIRD PART WHEREAS the Owner proposes to subdivide and register a Plan of Subdivision on lands described as Part of Langrell Avenue, Part of Lots 8, 9, 10 and 41 Registered Plan 41 M-171 more particularily described as parts 1, 2 and 3 on reference plan 41 R-7147, in the Town ofTillsonburg, and described in box 6 of the Document General, as shown on a proposed Plan of Subdivision, dated the 18" day of October, 2001 as prepared by Kim Husted Surveying Ltd., and appended as Schedule "A" to this Agreement; AND WHEREAS the land to be subdivided was draft approved by the County of Oxford on the; and consists of 54 single detached dwellings lots; AND WHEREAS prior to the signing of the plan for registration by the County of Oxford, certain conditions, as set out in the draft plan conditions of approval dated on the day of , must be fulfilled to the satisfaction of the Town; AND WHEREAS this Agreement has been made a condition of approval by the County of Oxford and contains all the requirements, financial and otherwise of the Town regarding the construction of roads, installation of services and drainage facilities, and any other matters pertaining to the development of the subdivision; NOW THEREFORE THIS AGREEMENT WITNESSETH THAT in consideration of the Town and the County approving the said proposed Plan of Subdivision and the covenants hereinafter expressed, the parties hereto covenant and agree one with the other as follows: Town oto Tillsonbui-g Subdivision Agreement Page 2 of 22 1. DEFINITIONS (a) "Owner" shall include the registered owner or owners in fee simple of the land for which the subdivision is proposed and/or their respective heirs, executors, administrators and assigns, and in addition to its accepted meaning, shall mean and include an individual, an association, a partnership, or an incorporated company and wherever the singular is used herein it shall be construed as including the plural. (b) "Council" shall rnean the Municipal Council of the Corporation of the Town of Tillsonburg. (c) "Hydro Company" shall mean Tillsonburg Hydro Inc. (d) "County" shall mean the Corporation of the County of Oxford. (e) "Lot" shall include a "block". (f) "Registered Professional Engineer" shall mean a licensed Professional Engineer who carries current Professional Liability Insurance and holds a current certificate of authorization issued by the Association of Professional Engineers of the Province of Ontario or is employed by a partnership or corporation authorized by the Association of Professional Engineers of Ontario to offer professional engineering services to the public. (g) "This Plan" shall mean the Plan of Subdivision annexed to this Agreement and marked Schedule "A". (h) "Residential Design Criteria" are the design criteria approved for residential subdivisions by the Council of the Town of Tillsonburg under By-law No. 2759 on June 24, 1996, and any amendments thereto. 2. INCONTESTABILITY The Owner will not call into question, directly or indirectly, in any proceeding whatsoever in law or in equity, or before any administrative or other tribunal, the right of the Town and the County to enter into this Agreement and to enforce each and every term, covenant and condition thereof. This provision may be pleaded by the Town or the County in any such action or proceeding as a complete and conclusive estoppel of any denial of such right. 3. CONSULTING ENGINEER (S) (a) The Owner agrees to retain a Registered Professional Engineer as the Consulting Engineer of the Owner to carry out all the necessary engineering and to supervise the work required to be done for the development of the subdivision. Such Consulting Engineer or a successor thereto, shall continue to be retained until the work provided for in this Agreement is completed and formally accepted by the Town and the County. The Owner shall notify the Town, in writing, regarding who the Engineer of Record is for the completion of the entire project. (b) The Owner agrees that in the preparation of contract plans and specifications, the Consulting Engineer will follow the following procedures all at the cost of the owner: (i) Design all the works covered by this Agreement, (excluding underground electric plant and street lighting, which will be designed by the Town of Tillsonburg); (ii) Prepare plans, profiles, and specifications for the said works and to submit detailed plans, profiles and specifications to the Town and/or the County for approval prior to the installation of such works; (iii) Obtain, in conjunction with the Town and/or the County, all the necessary approvals required prior to the construction of the said works; 2 Town of Tillsonburg Subdivision Agreement Page 3 of 22 (iv) Obtain the approval of the Town and/or the County for the Contractor of the said works; (v) Supervise construction of the said works; (vi) Maintain all records of construction of the said works; (vii) Supply to the Town and/or the County, drawings on linen, mylar or equivalent, as well as in digital format as described in Section 29 to this Agreement, of all the works as constructed by the Contractor; (viii) On completion of construction of the; said works, to supply the Town and/or the County with a certificate that the execution of the said works was in accordance with the approved plans and specifications; (ix) Supervise the construction of any remedial work required by the Town and/or the County. (x) Design and carry out lot grading in accordance with the Residential Design Criteria. Such plan should address lot grading, soil conservation and erosion control plan to the satisfaction of the Long Point Region Conservation Authority, the Town and the County. The plan should detail methods of controlling sediment during construction as well as identifying possible downstream impacts and ways of minimizing them. Additionally review any environmental impacts that might be identified in such plan. (xi) Submit a plan for the mitigation or removal of any contaminants identified in the Phase 1 and Phase 11 Environmental Site Assessment Reports prepared by Atkinson, Davies Inc. for the subject property, such work being the responsibility of the owner. (c) The Owner agrees with the Town and County that no public services will be installed and no work shall be commenced until the Town and/or County has received and approved such plans and specifications and has expressly authorized such work to commence. All works and services shall be constructed and installed strictly in accordance with the said plans and specifications, all to the satisfaction of the Town and/or County. The Owner agrees to construct all services and provide other requirements, which will be known only after the details of the engineering design, are submitted to the Town and/or County. The Town and/or County may require, in writing, a variance from such plans and specifications as may be required by conditions which may be disclosed as the work progresses, and by sound engineering practice. 4. SCOPE OF AGREEMENT The Owner agrees to construct and complete at his own expense and in a good workmanlike manner, for the Town and the County, all the municipal services as hereinafter set forth to the satisfaction of the Town and County, and to complete, perform or make payment for such other matters as may be provided for herein. The Owner, at his option, may request the Town and/or the County to construct the municipal services as hereinafter set forth. Where such option is exercised, the Town and/or the County shall undertake or arrange to call tenders and arrange for the construction of the services as provided herein and the Town or County shall have sole discretion in matters pertaining thereto. The subdivision shall be developed in phases and each phase may be developed in stages and each stage of the subdivision will have the necessary services in relation to that stage and in the event that the subdivision is developed in stages the Consulting Engineer shall establish the amount of security for each stage as provided herein to be approved by the Town. This agreement covers the area and lots identified on Schedule "A" or Schedule "A" as amended. Amending Agreement(s) will be required to develop subsequent phases and stages, approval of which will be subject to receipt of all approvals, studies, and requirements of the 3 Town of Tillsonburg Subdivision Agreement Page 4 of 22 Town including engineering drawings, and amendments to Schedules "A", "B", "C" and "D" 5. LIST OF SCHEDULES The following schedules form part of this agreement and it shall be the responsibility of the Owner to ensure complete compliance to all matters related to these schedules. Schedule "A" — A plan showing proposed lots, road allowances, easements, and parkland Schedule "B" — Agreement with Town of Tillsonburg for provision of Hydro services Schedule "C" — Summary of Estimated Servicing Costs Schedule "D" — Security and Cash Payment The following plans shall be submitted to the Town for approval and it shall be the responsibility of the Owner to ensure complete compliance to all matters related to their implementation: A plan showing the proposed storm and sanitary sewer systems A plan showing the proposed water distribution system A plan showing lot grading 6. MUNICIPAL SERVICES TO BE PROVIDED BY OWNER The Owner agrees to construct and complete services as set out below as required by the Town. The Owner shall within twelve (12) months of the execution of this Agreement commence, and within twenty-four (24) months complete the installation of the Municipal Services listed in Section 6 of this Agreement. In the case of staging, this time frame shall be applicable to the commencement and completion of each stage. (a) Sanitary and Storm Sewers, Water mains, Services and Appurtenances (i) Distribution System - The Owner hereby agrees to construct, at her/his own expense, sanitary sewers and a water distribution system to be connected to the existing distribution system and to be sized in accordance with the County's requirements. The system will include all house services and other services from the main to the street line and all appurtenances and fire hydrants, including private service connections to the property line of every lot on the plan. The distribution system shall be designed in accordance with the County's specifications, which are in effect at the time of the installation of this system and not necessarily those in effect at the time of this Agreement, and to maintain them until the County formally accepts them. (ii) Size - All sanitary and storm sewers and water mains shall be of a size as determined by the Town and the County and installed at depth and on a location as determined by the Town. (iii) Connection to Town system - Prior to the acceptance of the water distribution system constructed by the Owner, the Town mazy connect or authorize connection into the said system, but such connection shall not constitute acceptance of the system, or systems, by the Town. (iv) Approval of Contractor -The Town shall require all work to be done by a contractor whose competence is approved jointly by the Town and the Owner, at the expense of the Owner. (v) Outlet - It shall be the responsibility of the Owner to provide a satisfactory outlet for the sanitary sewers from the limits of this subdivision to the point of junction with the nearest approved Town sewer outlet. (vi) Timing - The Owner agrees that installation will be made within the time limits specified as hereinafter set forth and that upon completion of the works, to supply the Town with sufficient cash or bond to guarantee the works and material for a period of two years from the date that the said works are completed and approved in writing by 4 Town of Tillsonburg Subdivision Agreement Page 5 of 22 the Town as provided for in Paragraphs 18 and 20 of this agreement. (vii) Where a plan of subdivision or portion thereof fronts or abuts on an existing street and upon which water mains have been installed or may be installed, and not paid for in full, a payment shall be made to the Town for the use of the said main or mains as the Owner's share of the water system abutting the subdivision. (viii) Ministry of the Environment approval - All plans relating to the installation of water mains, appurtenances and services must be submitted to the Town and County for approval by the Town Director of Operations and the County Director of Public Works along with copies of the application to be submitted to the Ministry of the Environment for their approval. Before beginning any of the work, evidence must be filed with the Town that the Ministry of Environment approval has been obtained. (ix) Road Grades - Before actual construction begins, proof must be furnished by the Owner or his agents that the road grades have been approved by the Town Director of Operations and/or the County Director of Public Works where water mains are being installed outside the Town limits, in order that the water mains and appurtenances will be laid to the proper grade. (x) Property Stakes - Sufficient property stakes must be available so that the proper line of the waterman can be established and valves, hydrants, services and other appurtenances are properly located. (xi) Extent of Work - The extent of the work shall be construed to consist of the labour, equipment and material necessary for the construction of the subdivision in a good, substantial, workmanlike manner of all items required for the completion of the entire work consisting of all the items shown on the drawings which have been approved by the Town and County. (xii) Locates - The Contractor will be responsible for obtaining the location of all other utilities such as, but not limited to, electric underground cables, Bell Telephone Conduits, storm and sanitary sewer systems, water distribution systems, farm drainage tiles, gas mains and services, etc. from the Utility concerned and must protect and/or repair salve subject to the regulations of the particular service involved. (xiii) Replacement to Original Conditions — All pavement, driveways, entrances to property, lawns, retaining walls, etc. must be replaced in good condition as originally found or better, in consultation with adjacent property owners. (xiv) Signage, Barricades and Lanterns — Signage, barricades and lanterns must be installed on all works for the protection of vehicles and pedestrians and all precautions taken to minimize risk of damage and inconvenience to others. All signage must be erected and displayed in accordance with the Manual of Uniform Traffic Control Devices. (xv) Safety - All work shall be carried out so that it conforms with the regulations of the Construction Safety Act, the Workers' Compensation Board, and the Occupational Health and Safety Act, as they pertain to the safe working conditions of the persons employed on the job. (xvi) Support of Underground Services - Where an underground service is installed across another underground service, adequate horizontal and vertical bracing must be installed to properly support the affected services during and after construction of all works as required. (xvii) Pavement Cuts and Road Closures - The Contractor shall take full responsibility for pavement cuts which must be approved by the Town or County Director of Public Works and restored to the regulations applicable. The closing of roads due to the installation of sanitary sewers and/or water mains must have the approval of the Town Director of Operations and/or the County Director of Public Works and the Contractor must observe all applicable regulations and Safety Manuals. (xviii) Valve and Hydrant Wrenches -The Contractor must have a proper valve key and hydrant wrench on the job at all times in case of emergency and at no time is a pipe or 5 Town of Tillsonburg Subdivision Agreement Page 6 of 22 other wrench to be used in place of the proper equipment. (xix) Supply of Water from Hydrant - If the Contractor wishes to use a fire hydrant for a supply of water for construction purposes, he must obtain approval of the Town Director of Operations and provide a proper fitting complete with shut-off valve to attach to the hydrant. Under no condition is the Contractor to operate a hydrant repeatedly as this may cause damage to the mechanism necessitating a complete overhaul. (xx) Opening and Closing of Valves - The opening and closing of valves and the loading of watermains are only to be performed b:y employees of the Town. The Consulting Engineer(s) should make arrangements in advance of this type of work to be done. The cost of performing this service will be charged to the Contractor and all accounts shall be settled on demand. (xxi) Connection to Town System - All cutting or connecting to the Town's existing services shall normally be made by the Town's forces at the expense of the Contractor. The Contractor may perform this work, 'by permission of the Town Director of Operations and with the Inspector present. (xxii) In Absence of Contractor - In absence of the Contractor from the job (whether permanent or temporary), a competent and reliable agent or foreman shall be left in charge and this person shall be considered as acting in place and all notices, communications, instruction or orders given, sent or served upon this person shall be taken as served upon the Contractor. (xxiii) Specifications - The installation of the water distribution system is to be carried out in accordance with the specifications previously referred to as supplied by the County of Oxford. These specifications are considered to be a part of this agreement. (xxiv) Excavations, Backfill and Compaction — All excavations on Town and/or County streets must have the approval of the Town Director of Operations and/or County Director of Public Works, respectively. All trenches, regardless of their location, whether they are in roadways, in the boulevards, or under sidewalks, lawns, etc. are to be backfilled with suitable material and properly compacted. Mechanical compactors are to be used where possible and compaction is to be done at least every six inches or as approved by the Town's Director of Operations. No wet, frozen or unsuitable materials are to be used for backfilling, and, in all cases, the requirements of the Town Director of Operations will be met. Where excavations are made in existing roadways, the pavement structure shall be replaced on the top of the trench in accordance with the requirements of the Town Director of Operations and/or the County Director of Public Works. (b) Storm Water Facilities and Sewers Storrn water facilities and sewers shall be constructed within the limits of the subdivision and beyond, if required for the development of these lands, of such size, type, position and extent as are shown on the plans and specifications approved by the Town or otherwise required by it in writing as required by the Plan of Subdivision. The Town shall require this work to be done by a contractor whose competence is approved jointly by the Town and the Owner, at the expense of the Owner. It shall be the responsibility of the Owner to provide a satisfactory outlet for the storm water sewers from the limits of this subdivision to the point of junction with the nearest approved Town sewer outlet. The Owner shall have had a storm water management plan prepared by a technically qualified consultant detailing the methods of maintaining post development flows at pre - development flows for the 1:2 and 1:100 storm return periods. The plan shall have described the methods that will be used to control erosion and control/treat surface water flow for the proposed residential development and future development lands within the watershed. The plan shall be reviewed and approved by the Town and the Long Point Region Conservation Authority. The Owner shall carry out or cause to be carried out any necessary remedial works recommended by the Town and the Long .Point Region Conservation Authority. The Owner agrees that upon approval of the plans by the Town 6 Town ofTillsonburg Subdivision Agreement Page 7 of 22 and the Long Point Region Conservation Authority, all buildings and structures in the plan of subdivision shall be erected in accordance with the approved plans under the supervision of the Consulting Engineer and these plans shall be registered against each individual lot prior to any acceptance of the Town. As part of the Storm Water Management for this development, it is recognized that the developer is providing for storm water management facilities that will benefit the development of other lands in the future. The Town of Tillsonburg will be proceeding under the drainage act to recover costs from appropriate property owners. The Owners portion of the Storm Management System shall be paid by the Town, those costs shall be re -paid with 5% interest by the Owner to the Town by May 1, 2005. (c) Credits for Over Sizing The County may require the Owner to oversize sewers or water mains to accommodate servicing of lands external to the subdivision lands herein. Upon such a request, the Owner may apply for a credit toward development charges for sewers for the subdivision equal to the cost of over sizing as calculated by the Consulting Engineer and agreed to by the Town. (d) Roads Subject to the Residential Design Criteria, all roads shown on the said Plan of Subdivision shall be dedicated as public highways, graded, including fill or excavation as required by the Town, to their full width of the allowance. All roads shall be asphalted and such asphalt shall be laid in at such times as may be allowed by the Town in writing. When in the opinion of the Town, it is necessary to change the grade of existing Town roads adjacent to or abutting the said plan, the Owner agrees to grade the road to sub - grade, in the manner and at the salve time stipulated by the Town and shall restore the road to its original condition prior to the change in grade. Prior to acceptance by the Town, the Owner shall maintain these roads at the Owner's cost. The naming of streets included in the plan shall be to the satisfaction of the Town. The owner shall purchase and pay for the installation of all street sign and regulatory signs at the direction of the Town. Until the roads within the subdivision have been assumed by the Town, the Owner is responsible for the erection and maintenance of signs at all entrances to the subdivision stating that the roads within the subdivision have not yet been assumed by the Town. (e) Curbs and Gutters Concrete curbs and gutters shall be constructed on all streets within the subdivision in compliance to the Residential Design Criteria but construction shall take place only at such times as may be authorized by the Town in writing. The Town shall approve, in writing, of the elevation and final grade of the top of the curbs at the mid -point in front of each lot in the subdivision prior to the construction thereof, and the same shall be constructed to the satisfaction of the Town. The Owner shall provide a record of such heights and grades to the Town. Prior to acceptance by the Town, maintenance and repairs of all curbs and gutters will be the responsibility of the Owner. (t) Sidewalks and/or Pedestrian Walkways Concrete sidewalks shall be constructed in compliance to the Residential Design Criteria on at least one side of those streets shown within the subdivision and on both sides of collector and arterial streets as specified by the Town. Sidewalks, where required in the subdivision, shall be constructed with and at the same time as the construction of curbs and gutters or at such time as may be allowed by the Town in writing. Sidewalk ramps will be constructed at intersections or where required to the satisfaction of the Town. Prior to acceptance by the Town maintenance and repairs of all sidewalks will be the responsibility of the Owner. 7 Town of Tillsonburg Subdivision Agreement Page 8 of 22 (g) Street Lighting; The owner shall contract with the Town for the installation of street lights on each street as shown on the plan to the satisfaction of the Town and to pay the Town the cost thereof in accordance with the work in Schedule "C" (h) Underground Electric Plant The Owner hereby covenants and agrees to install an electrical distribution system on each street as shown on the plan to the satisfaction of the Town and to pay to the Town the cost thereof in accordance with the cost as set out in Schedule "B". (i) Drainage and Erosion Control Works The owner shall undertake a geotechnical study to the satisfaction of the Town and the Long Point Region Conservation Authority to address the stability of all slopes and make recommendations for any remedial work to be undertaken by the Owner as well as providing for minimum set back requirements taking into account the findings of the study. (j) Topsoil and Sod/Seed on all Unpaved Portions of Road Allowances The Owner is responsible for topsoil, and sod/seed on all unpaved portions of road allowances complete with 100mm of topsoil and #1 nursery sod in accordance with the approved grading plan and to the satisfaction of the Director of Operations. (k) Park Development The Owner is responsible for development of all parkland within the limits of the subdivision to the standards for park development in the Town, including grading, and installation of sod/seed, as outlined in the Residential Design Criteria. Development of these parklands shall be in accordance with Section 27 B of this agreement 7. LIENS AND CLAIMS The Owner agrees that upon applying for final acceptance of all services in the said subdivision, to supply the Town and County with a Statutory Declaration that all accounts for work and materials have been paid or provided for and that there are no claims for liens or otherwise, on behalf of the Owner in connection with the subdivision. 8. COMPLIANCE WITH RESIDENTIAL DESIGN CRITERIA All works described in this Agreement shall comply with the Town of Tillsonburg Residential Design Criteria. 9. INSPECTION WORK The Town and/or County reserve the right to have inspectors/consultants employed by the Town and/or County to review all plans and specifications and observe the construction and installation of services at any time. The Owner hereby agrees to pay all accounts of the Town and the County in connection with the inspectors/consultants within ten days of them being completed in accordance with the specifications of the Town and the County. 10. FAILURE TO INSTALL OR REMEDY FAULTY WORK If, in the opinion of the Town Director of Operations, the Owner: (a) is not prosecuting or causing to be prosecuted the work required in connection with 8 Town of Tillsonburg Subdivision Agreement Page 9 of 22 this agreement within the agreed upon times, or in order that it may be completed within the agreed upon times; or (b) is improperly performing the work; or (c) has neglected or abandoned before the completion, or unreasonably delayed the same, so that conditions of this agreement are being violated or carelessly executed or in bad faith; or (d) has neglected or refused to renew or again perform such work as maybe rejected by the Town Director of Operations as defective or unsuitable; or (e) has defaulted performance of the terms of this agreement, then, in any such case, the Town Director of Operations shall promptly notify the Owner and his surety, in writing, of such default or neglect and, if such notification be without effect within seven days after such notice, the Town Director of Operations shall thereupon have full authority and power to purchase materials and employ workmen and machines for proper completion of the said work at the cost and expense of the Owner or his surety or both. In case of an emergency, in the opinion of the Town Director of Operations, such work may be done without notice. The cost of such work shall be calculated by the Town Director of Operations whose decision shall be final. The cost of this work, together with an Engineering fee of 5% of the cost of materials and work shall forthwith be paid to the Town by the Owner on demand. Should payment not be received following the issuance of an invoice from the Town, the Town may draw upon the security which has been provided by the Owner. It is further understood and agreed between the parties hereto that such entry upon the lands shall be as an agent for the Owner and shall not be deemed for any purpose whatsoever as an acceptance of the said services by the Town. 11. ASSUMPTION OF SERVICES BY COUNTY Once the sanitary sewers and water distribution system have been installed to the satisfaction of the Town and the County, the sanitary sewer trunks and water distribution system will be assumed and operated by the County and/or the designated service provider. 12. LANDSCAPING - CONTOURS - FINAL GRADES & SURVEY MARKERS (a) The Owner agrees to deposit with the Town a plan that is in compliance with the Residential Design Criteria showing: (i) The existing and final elevation of the said lands as determined by reference to a geodetic benchmark. or an alternate bench mark acceptable to the Town; (ii) The final grades of all roads as approved by the Town Director of Operations; (iii) The lands designated for drainage works and locations of easements as may be required for municipal services. (b) Barriers along Conservation Authority Lands- The Owner agrees that a snow fence or other barrier suitable to the Town shall be erected by the Owner along any setback line established by the Lona; Point Region Conservation Authority prior to the commencement of grading, construction and shall remain until all grading, construction and resodding have been completed. (c) Soil Disturbance - The Owner agrees that no construction or soil disturbance shall take place below any setback line established by the Long Point Region Conservation Authority without a geotechnical study prepared by the Owner for the review and approval of the Long Point Region Conservation Authority. (d) Removal of Trees - The Owner agrees trees, other than those which are diseased or 9 Town of Tillsonburg Subdivision Agreement Page 10 of 22 dead, shall not be removed other than in an area to be occupied by a dwelling, driveway or landscape structure without the approval of the Town and shall be undertaken in accordance with the County of Oxford Tree Cutting By -Law and Town of Tillsonburg Tree Policy. (e) Soil, Seed and Sod - The Owner agrees to grade, provide top soil and seed or sod the portion of the street allowances lying between the front property line of lots and the curb save and except any private allowances. (f) Grading Requirements - The Owner agrees to extract from each purchaser a covenant in the nature of a restrictive covenant running with lands that the grades and levels will be maintained in accordance with the approved drainage plan and that no lot will be filled, cut or encumbered so as to interfere with drainage and the grades and elevations and only changes will be reviewed by the Town if accompanied with an Engineer's drawing stamped and signed. The Owner and each subsequent purchaser agrees that no soil disturbance may be made on the Town lands without the consent of the Town. (g) Foundation Control Certificate and Final Grading Certificate — foundation control and final grading certificates will be required in compliance with the Residential Design Criteria. (h) Ontario Land Surveyor - The Owner agrees and shall deposit with the Town a certificate from an Ontario Land Surveyor on completion of construction of all underground services, curb and base asphalt certifying that all survey monuments as shown on the registered plan are in place and are located at grade. (i) Tree Planting - The Owner agrees to provide the Town with a tree planting plan detailing location and type of all trees to be planted on both public and private lands in accordance with the Town's Tree Policy 13. FENCING The following fencing will be erected by the owner: a) N/A 14. DEVELOPMENT CHARGES The Owner agrees with the Town and County to pay all applicable charges in the Town of Tillsonburg Development Charges By-law no. 2928 and the County of Oxford Development Charges By-law nos. 3909-99 and 3912-09, as amended and/or replaced from time to time. 15. WATER ALLOCATION In accordance with the Town of Tillsonburg Water Allocation Policy adopted by Town Council on February 9, 1998, the Owner is hereby notified that a water allocation of 54 residential units is available until August 2005 for both phase I and phase II. Should this water allocation expire prior to registration of this Plan, the Owner will be required to request an extension of this allocation from Town Council. The signing of this Agreement does not secure water allocation beyond August 2005 and an extension of this allocation will be subject to availability of supply in the Tillsonburg water system. 16. PUBLIC LANDS The Owner agrees to convey to the Town the lands which are required for public purposes by the Town as hereinafter set forth: (a) Park Lands and Storm water Management Lands- The conveyance of park lands and storm water management lands free of all encumbrances in the subdivision shall be 10 Town of Tillsonburg Subdivision Agreement Page 11 of 22 made by the Owner immediately following registration of the plan and prior to the installation of any services as may be applicable. Such parklands shall be developed at the expense of the Owner to such standards as approved by the Town, including grading, drainage and landscaping in compliance with the Residential Design Criteria. (b) Easements & Right -of Ways - The Owner agrees to grant to the Town and/or the county, free of charge, all permanent and temporary, easements as may be required for municipal services and shall deposit with the Town or County a Plan of Survey thereof prior to acceptance of the services. The easements and right-of-ways to be dedicated to the Town and County are shown on Schedule "A" attached hereto or as may be required by the Town and/or County to implement this plan. (c) Notwithstanding Clause (a), the Parklands conveyed herein shall be subject to a Lease as provided for in Paragraph 27 of this Agreement. 17. LIABILITY INSURANCE. The Owner or contractor to whom the construction is let must be a company in good financial standing with the Town and County and, before commencing any of the work provided for herein, shall supply the Town and County with the Liability Insurance Policy in a form satisfactory to the Town and County, indemnifying the Town and County for any loss arising from claims for damages, injury or otherwise in connection with the work done by the Owner, his servants or agents in the said development. The Insurance will name the Town and the County, as additional insured, and will be in the amount as set out elsewhere herein under the general terms of this agreement with the Town and the County. The Owner shall, at its own expense, obtain and lodge with the County and Town a Certificate of Insurance satisfactory to the County and Town indemnifying the Town, the County and the Owner with cross liability endorsement against any claim for public liability, personal injury, including death or property damage to limits of $2,000,000.00, inclusive, for any one accident arising in any way out of the construction, installation, repair or maintenance of all works and services required herein to be done. The Owner shall provide the County and Town with satisfactory evidence of the renewal of the said policy at least fifteen (15) days prior to its expiry. The said policy shall not be subject to cancellation without thirty (30) days prior written notice to the Town. The Owner shall, at its own expense, maintain the said policy of insurance in full force and effect until the expiration of the period of guarantee. Failure to procure and maintain the said policy of insurance shall constitute a default under this Agreement The Owner covenants that it will indemnify and save harmless the Town and County from any and all claims, demands, actions and causes of action, whether the same shall be successful or unsuccessful and from all costs to which the Town and County may be liable, suffer or be put to in respect of any such action, cause of action, claim or demand on any way arising out of or alleged to arise out of any work, service, operation or thing constructed, installed, repaired, maintained or done or admitted to be done or negligently done by the Owner, his servants, agents, contractors or subcontractors under them, in respect of the said works and services, whether or not the same shall be required to be done under the terms of this Agreement and including (without limiting the generality of the foregoing), the alteration of any grade or existing level construction, maintenance or repair of any street. 18. PERFORMANCE GUARANTEE - SECURITY As security for the construction and installation of services required by this Agreement and prior to the commencement of any work in any stage of the development provided therein, the Owner shall supply the Town with security as more particularly set out in Schedule "D" hereto, for the performance and completion of all works required by this Agreement as each stage proceeds in an amount equal to the estimated cost of all works in that particular stage and further guaranteeing the workmanship and material in lieu of all other guarantees and warranties express or implied for a period consistent with the Residential Design Criteria from the date that the said works are approved in writing by the Town Director of Operations, and such security may be in the form of any of the following combination 11 Town of Tillsonburg Subdivision Agreement Pagc 12 of 22 therefore as is acceptable to the Town: (a) A cash deposit with the Town; (b) An irrevocable Letter of Credit in a fon-n acceptable to the Town from a chartered bank expressing to be pursuant to this Agreement and payable to the Town at any time or in part from time to time, upon written notice from the Town that the Owner is in default under this Agreement; (c) A Certificate of Trust deposited with a chartered bank or trust company in a form acceptable to the Town expressed to be pursuant to this Agreement and providing for payment to the Town of the sum deposited or any part thereof from time to time upon written notice from the Town that the Owner is in default under this Agreement; (d) The Owner may convey to the Town as each stage proceeds, as security for the performance of the Agreement, title to the lots listed and as described in Schedule "A" hereto free of encumbrances. Such conveyance shall be certified and registered by the Owner's solicitors, at the Owner's expense, provided however where lots are to be conveyed as security, the total value as set out in Schedule "D" shall not form more than 70% of the amount of security required. Any lots conveyed hereby shall be held in trust by the Town and dealing with said lots will be prohibited until such time as the work or part of the work has been completed The Town hereby agrees to release the lots in exchange for other security as provided herein. It is understood that development of the Plan of Subdivision may progress in stages and for that purpose, on completion of each stage, the Town agrees to release lots abutting on the works so completed to the satisfaction of the Town of Tillsonburg, but all works shall be completed for each stage within three years of the commencement of that particular stage. In the event of failure of the Owner or the Owner's surety or guarantor to perform within the time permitted herein the Owner's obligations hereunder within six months after requested to do so by the Council of the Town, or in the event of the Owner's insolvency or bankruptcy, the Town shall be at liberty to arrange for completion of the 'works and to sell the said lots as set out in Schedule "A" and to apply the proceeds thereof, firstly to the cost of such works, and secondly such surplus to be returned to the Owner. The Town shall not be required to account for the sufficiency of the sale price of lots sold under this paragraph but shall have: sole discretion as to sale price, terms and conditions, and the values set forth in Schedule "D" shall have no application as to the price of any lots sold by the Town under the terms of this paragraph. The Owner shall be liable for municipal taxes and the maintenance of same should it convey to the Town such lots as security. 19. MAINTENANCE DEPOSIT The Owner shall provide a two year maintenance deposit in an amount which is equal to 10% of the total contract price including all materials and labour and shall guarantee the materials installed and the proper installation of all services. The maintenance deposit shall be in the form of cash or letter of credit. The Town shall only release this maintenance deposit once the Town is satisfied that all services and materials have been properly installed and functioning in a capacity that is satisfactory to the Town. 20. ADJUSTMENT OF SECURITY The Owner shall have the right from time to time to apply to the Town for a reduction in the security then held by the Town based on the state of completion of any work for which security has been given pursuant to this Agreement and provided all works are in compliance with the :Residential Design Criteria, provided that in no event may the said security for any services be reduced below an amount equal to ten percent (10%) to be released upon the expiry of the warranty period being consistent with the Residential Design Criteria. 12 Town of Tillsonburg Subdivision Agreement Page 13 of 22 21. PAYMENT OF SOLICITOR'S/CONSULTANT'S COST The Owner consents to the registration of this Agreement upon the title of the lands within the plan, and agrees to pay forthwith, on demand, all reasonable solicitor's and consultant's fees and disbursements incurred by the Town in any way arising out of this Agreement, including the preparation thereof and of other deeds, conveyances, registration and agreements. 22. ACCEPTANCE OF SUBDIVISION The Town agrees to accept the subdivision as shown on the attached copy of the Plan for Registration, and to declare the streets shown thereon to be public highways when constructed and assumed. Any assumption or operation by the County of Oxford of the water and sewage systems within the draft plan shall be subject to the approval of the County of Oxford. 23. NOTIFICATION OF EXECUTION The Town agrees to notify the County and the Long Point Region Conservation Authority of the signing of this Agreement and that conditions set out in the County's letter applying to the draft approval of this plan for registration have been Inset to the satisfaction of Town Council. 24. PAYMENT OF COSTS & SERVICES Where any work is carried out by the Town on behalf of the Owner, it shall be the duty of the Town to carry out the work in an efficient, prompt and careful manner and to render a full account of its costs and expenses to the Owner within thirty (30) days of the completion of the work or such portion of the work where such is carried out by stages. It shall be the duty of the Owner to pay to the Town its bills and costs and expenses within thirty (30) days of the delivery to the Owner of the Town's demand for payment, unless some issue shall be in process of arbitration, and then within thirty (30) days after the date of the arbitration award, and such sums may be recovered by the Town in like manner as municipal taxes pursuant to Section 35 of the Municipal Act, R.S.O. 1990, M.45 against lands retained by the Owner or held by the Town as security. 25. ARBITRATION OF DISPUTES It is contemplated that there is room for differences between the Owner and the Town and/or the County in respect of the quality of workmanship involved in the work to be done and that losses may occur which increase the Town and/or County's costs and expenses which are not properly the responsibility of the Owner in the construction, meaning or effect of this Agreement or related agreements made between the parties. These and all other differences between the parties arising out of this contract shall be referred to a single arbitrator if the parties can agree upon one. Otherwise, three arbitrators shall be used. Where three arbitrators are used, one is to be appointed by each party while the third arbitrator is to be appointed by the first named arbitrator in writing before they enter upon the business of the reference. If any party refuses or neglects to appoint an arbitrator within five days after the other party shall have appointed an arbitrator and shall have served a written notice upon the first mentioned party requiring such party to make such appointment, then the arbitrator first appointed shall, at the request of the party appointing him proceed to hear and determine the matters in difference as if he were a single arbitrator appointed by both parties for the purpose, and the award or determination which shall be made by the said arbitrators or the majority of thein or by said arbitrator, shall be final and binding upon the parties hereto, their successors and assigns. 26. ISSUANCE OF BUILDING PERMITS Building permit applications will be considered subject to the following conditions for lots identified on Schedule "A": 13 Town of Tillsonburg Subdivision Agreement Page 14 of 22 (a) road allowance has been graded, including fill or excavation, to its full width; (b) curbs and gutters have been installed; (c) base lift of asphalt has been laid; (d) underground water, sanitary and storm sewers and hydro services have been installed; and (e) development charges for the lot, which a permit is being applied for, have been paid in accordance with the requirements of both the Town and the County. Building permit applications will not be considered for subsequent phases prior to the approval of the respective Phase in accordance with Section 4. This provision may be varied upon the approval of the Town's Director of Operations. 27. SPECIAL PROVISIONS a. The owner agrees in writing to satisfy all requirements, financial and otherwise, of the Town of Tillsonburg regarding the construction of roads, installation of services, including the water, sewer and electrical distribution systems, sidewalks and drainage facilities, and other matters pertaining to the development of the subdivision in accordance with the standards of the Town of Tillsonburg, including the Town of Tillsonburg Residential Design Criteria. b. The owner agrees in writing to satisfy all the requirements, financial and otherwise, including payment of applicable development charges, of the County of Oxford Public Works Department regarding the installation of the water distribution system, the installation of the sanitary sewer system, and other matters pertaining to the development of the subdivision. C. The subdivision agreement shall make provision for the assumption and operation by the County of Oxford of the water distribution system and sewage collection system within the draft plan subject to the approval of the County of Oxford. d. Prior to the final approval of the subdivision plan, the owner shall receive confirmation from the County of Oxford Department of Public Works and the Town of Tillsonburg that there is sufficient capacity in the Tillsonburg water and sewage systems to service the plan of subdivision. e. Such easements as may be required for utility or drainage purposes shall be granted to the appropriate authority. f. The subdivision agreement shall be registered by the Town of Tillsonburg against the lands to which it applies. The subdivision agreement shall include: (i) a provision which requires the owner to receive Council approval for all regulatory street name signs and to purchase and install these signs at the direction of the Town; (i.i)a provision which prohibits the commencement of any site work or issuance of any permits, until the associated part lot control application CO 9-21-224 is registered to the satisfaction of the Town of Tillsonburg. (iii) a provision which requires that underground servicing to North Street meet County of Oxford Construction standards and, if the storm sewer on North Street is to be used for outlet, that capacity be verified by the developer to the satisfaction of the County Director of Public Works. 14 Town of Tillsonburg Subdivision Agreement Page 15 of 22 (iv) a provision which prohibits the issuance of any building permits until the Storm Water Management facilities on block 21 & 22 have been completed to the Satisfaction of the Town of Tillsonburg. g. The street included in the draft plan shall be named to the satisfaction of the Town of Tillsonburg. h The road allowance included in the draft plan shall be dedicated as a public highway. i Prior to the signing of the final plan by the County, all lots/blocks shall conform to the zoning requirements of the Town of Tillsonburg Zoning By -Law. Certification of lot areas, lot frontages, and lot depths shall be obtained from an Ontario Land Surveyor retained by the developer. j. Prior to the signing of the final plan by the County of Oxford, the owner shall submit for review and approval of the Long Point Region Conservation Authority and the Town of Tillsonburg, a final storm water management plan prepared by a technically qualified consultant. This plan shall detail methods of maintaining post development flows at pre -development levels for the 1:2. to the 1:100 year storm return periods. This plan shall detail the methods that will be used to control erosion and control/treat surface water within the development lands and abutting properties during and following construction. This plan shall also define the ownership arrangement of all facilities. The subdivision agreement shall also contain wording acceptable to the Town and the Conservation Authority to carry out the recommendations and requirements of this plan. k. Prior to the signing of the final plan by the County of Oxford, the owner shall submit a lot grading, soil conservation, and erosion control plan, prepared by a qualified engineer, to the satisfaction of the Long Point Region Conservation Authority and the Town of Tillsonburg. The plan should detail methods of controlling sediment during construction as well as identifying possible downstream impacts and ways of minimizing them. Any additional review of environmental impacts identified as being required. 1. Prior to the signing of the final plan by the County of Oxford, the owner shall submit a report prepared by a qualified engineer based on the Ministry of the Environment and Energy June 1996 Guideline for Use at Contaminated Site in Ontario. This report shall identify any potential contaminants on the site. Prior to the signing of the final plan by the County of Oxford, the owner will be responsible for the mitigation of any contaminants identified in this report to the satisfaction of the County of Oxford. To assist the County in its review of the owner's engineering report, the County may retain its own qualified engineer, at the owner's expense, to undertake a peer review of the original report. M. Prior to the signing of the final plan by the County of Oxford, the owner shall submit an archaeological assessment report of the subject lands and through avoidance or documentation/excavation, mitigate the development impacts to significant heritage resources found, to the satisfaction of the Ministry of Citizenship, Culture and Recreation. No demolition, grading or further soil disturbances shall take place on the subject property prior to the issuance of a clearance letter from the Ministry of Citizenship, Culture and Recreation to the County of Oxford indicating that all archaeological assessment and/or mitigation activities undertaken have met licensing and resource conservation requirements. 28. CONVEYANCES The owner shall provide an undertaking to the Town with the execution of this Agreement to deposit with the Clerk a properly executed copy of conveyance concurrent with the registration of the Plan of all lands to be conveyed to the 'town under this Agreement and copy of 15 Town of Tillsonburg Subdivision Agreement Pagc 16 of 22 registration of this Agreement against all lands subject to this Agreement. Lands to be conveyed to the Town free of all encumbrances and to the satisfaction of the Town shall include: Before the town or county may transfer any lands to any third parties the Owner may request a proportionate contribution to cost of the development. This amount will be agreed upon by the County, the Town and the Owner prior to the transfer. 29. DIGITAL COPIES OF PLANS AND DRAWINGS As constructed Engineering drawings shall be submitted to the Town within 3 months after the completion of all underground Service and base asphalt as in Section A 4.03 of the Design Criteria. The owner shall provide the Town and County with digital versions of all plans and drawings in AutoCAD drawing files (.DWG) and shape files (.SHP) with attached database information, or in a current AutoCAD format approved by the Town and the County. 30. AGREEMENT BINDING This Agreement and everything herein contained shall be to the benefit of and be binding upon the parties hereto, their successors and assigns. 31. NOTIFICATIONS AND CHANGE OF OWNERSHIP If any notice is required to be given by the Town or the County to the Owner with respect to this agreement, such notice shall be mailed or delivered to: John Boersma 6 Elmridge Drive Guelph, ON N 1 G 4x7 or such address as the Owner has notified the Clerk in writing, and any such notice mailed or delivered is deemed good and sufficient notice under the terms of this Agreement. Should the owner sell all or a portion of this subdivision, all terms and conditions agreed to in this Agreement are to be transferred to the new owner(s). The Town and County will require the new owner to accept, in writing, the terms and conditions outlined in this Agreement. If this acceptance of the terms and conditions of the Agreement from the new owner(s) is not received by the date of sale or transfer, the terms and conditions agreed to in this Agreement shall remain the responsibility of the previous owners. 32. REVISIONS TO THIS AGREEMENT Upon written notification to all parties, the Town, the County and/or the Owner have the right to request revisions to this Agreement provided that the Agreement has been in effect for a minimum of five years. 33. AGREEMENT REGISTERED This Agreement shall be registered by the Town of Tillsonburg against all lands to which it applies at the cost of the Owner. 16 Town of Tillsonburg Subdivision Agreement Page 17 of 22 17 Town of Tillsonburg Subdivision Agreement Page 18 of 22 IN WITNESS WHEREOF the parties hereto have hereunto affixed their Corporate Seals this day of 12004. )JOHN BOERSMA, Owner THE CORPORATION OF THE TOWN OF TILLSONBURG j DFKUTY MAYOR —ROBERT T. SMITH f , )CLERK —MICHAEL GRAVES THE CORPORATION OF THE COUNTY OF OXFORD WARDEN, C.A.OJCIerk —Ken Whiteford W Town of Tillsonburg Subdivision Agreement SCHEDULE "A" SUBDIVISION FLAN PHASE I As prepared by Kim Husted Surveying Ltd., Tillsonburg dated October 18, 2001. Page 19 of 22 19 Town of Tillson .,)urg Subdivision Agrecment SCHEDULE "B" HYDRO AGREEMENT PNAISF I Page 2 0 of 22 The Owner Hereby agrees to pay for the installation of an underground electrical system including necessary distribution system and appurtenances as designed and approved by the Town which system shall become the asset of Tillsonburg Hydro Inc.. Payment to Town for this system shall be as follows which is in accordance with current Tillsonburg Hydro Inc. policy: ❑ 40% of the estimated cost to be deposited in cash or certified cheque prior to any material being ordered by the Town. ❑ 40% of the estimated cost to be deposited in cash or certified cheque with the Town prior to any buried cable being placed. ❑ Balance of 20% to be paid at substantiae completion* or within 60 days after the second payment, whichever occurs first. *Substantial completion shall mean all buried cable, transformers and switchgear in place on future public streets and easements but shall not include the individual services cable within the limits of any building lot. ❑ Outstanding cost of construction of electrical distribution system shall be included in services secured under Section 18 Performance Guarantee of the Subdivison Agreement. ❑ The Owner shall arrange for all "civil work" i.e., supply and backfilling of cable trench, installation of transformer pad as supplied by the Town etc. The Owner is responsible as to the location of installing -the electrical distribution equipment which will be carried out by the Town's forces. ❑ The Owner agrees to pay any additional charges as fixed by the Town on demand should the requirement for electrical services be changed by request of the Owner. Should this policy change to reflect Province of Ontario legislation or regulations effecting the electrical distribution requirements, such amended policy shall be applied to the next stages of Subdivision Development following the date of implementation of such change. 20 Town of Tillson )urg Subdivision Agreement SCHEDULE "C" SUMMARY OF ESTIMATED SERVICING COSTS PLAN 32T — 01005 JOHN BOERS�VIA TOWN OF TILLSONBURG PHASE I Internal Costs — Constructior. Cost Page 21 of 22 F) Sanitary Sewer $811636 C) Stonn Sewer 471362 LI) Watermain 85,171 F) Roadwork 159,165 F) Parkland 10,350 Sub -Total $3839684 Supervision and Testing (6%) 231021 As -Constructed Drawings 2,000 TOTAL 408,705 External Custs — A) Mun- cipal Drain Construction $ 125,623 GRAND TOTAL $5349328 NOTE: Construction Cost Estimate provided by Cyril J. Demeyere Limited, dated January 21, 2004. 21 Town of Tillson burg Subdivision Agreement Page 2 2 of 22 SCHEDULE ",D" �'ECURITY . CASH, and DEVELOPMENT CHARGE PAYMENTS PLAN JOHN BOERSMA PHASE I - 54 Lots TOWN OF TILLSONBURG 1.0 Coni truction Cost Estimate (Estimate C.J. Demeyere, Jan. 21, 2004) $534,328 2.0 IrrelTocable Letter of Credit 30% of 408,705 $1229612 3.0 Lots as Security 10 Lots to Retained by the Town as Security 286,093 (estimated a-. 70% x $40,000) 4.0 Oth(r Security Municipal E rain Construction to be paid on May 1. , 2005 $125623 (this includes 5% interest for 1 year deferral of -payment) Total $5349328 5.0 Cast. Contributions A) Street Light System g $500 / lot 271000 B) Electrical Distribution System As per Schedule "B" �u�, $2000 / Lot $43,200 (based on 40% of 108,000 up front payment) C) Development Charges i) Sanitary Sewer — 54 Lots Ca� $688.00 per lot; $371152 ii) `Vater — 54 Lots g $ 259.00 per lot 131986 D) Cont bution to Quarterline Road i) Roadwork 25,765 ii) Engineering, Supervision & Testing (12%) 31092 iii) 9,5 m x $475/m — $45,125 - $28, 745 161380 GST g 7% 401570 E) Munl'cipal Drain Construction Sub -Total (Due May 1, 2005) 1251623 F) Extei nal Sanitary Sewer Connection to North Street 231750 (Based on $70,000 cost shared 50% with Rock Developments and t ased on 50% development charges contribution being $111-50) TOTAL CASH PAYMENTS $3569518 22