HomeMy WebLinkAboutBy-law No. 2022-029THE CORPORATION OF THE MUNICIPALITY OF BAYHAM
BY-LAW NO. 2022-029
BEING A BY-LAW TO AUTHORIZE THE MAYOR AND CLERK
TO EXECUTE A DEVELOPMENT AGREEMENT
BETWEEN THE MUNICIPALITY AND ANDREW AND KIM HEUTINCK FOR THE
CONSTRUCTION OF A PORTION OF GREEN LINE
(PART OF ROAD ALLOWANCE BETWEEN CONCESSIONS 10 AND 11 LOT 20)
WHEREAS the Owners of lands, Andrew and Kim Heutinck, described in Schedule `B' attached
hereto and forming part of this By-law, have applied to the Municipality for permission to
reconstruct that part of the said road allowance shown as PART 1 on Plan 11 R-10796 at the
Owners' expense in order to provided frontage and access to the lands of the Owners,
AND WHEREAS the Council of The Corporation of the Municipality of Bayham is in agreement
with the project proceeding subject to the conditions as set out in the Development Agreement
attached hereto as Schedule `A' and forming part of this By-law;
AND WHEREAS the said Owners are in agreement with the terms and conditions as set out in
the aforementioned Agreement and Council now deems it necessary to execute same.
THEREFORE THE COUNCIL FO THE COPRORATION OF THE MUNICIPALTIY OF
BAYHAM ENACTS AS FOLLOWS:
1 THAT the Agreement attached hereto as Schedule 'A' and forming part of this By-law
between the Corporation of the Municipality of Bayham and Andrew and Kim Heutinck
setting out the terms and conditions for the construction of Green Line as described in
the said Agreement is hereby approved
2. THAT the Mayor and Clerk be hereby authorized to execute the said Agreement.
THAT this Agreement shall come into full force and effect upon the date of its
enactment.
4. THAT this By-law and Agreement shall be registered on title to the subject lands.
READ A FIRST, SECOND AND THIRD TIME AND FINALLY PASSED THIS 21st DAY OF
APRIL 2022.
MAYOR
Schedule `A' to By-law No. 2022-029
DEVELOPMENT AGREEMENT
GREEN LINE ROAD CONSTRUCTION
DEVELOPMENT AGREEMENT made in duplicate this 21 st day of April 2022.
BETWEEN:
ANDREW HEUTINCK and KIM HEUTINCK
(hereinafter referred to as the "Owners")
of the First Part
THE CORPORATION OF THE MUNICIPALITY OF BAYHAM
(hereinafter referred to as the "Municipality")
of the Second Part
WHEREAS the Owners are the owners of lands described in Schedule `A' to this Agreement
(Owners' Lands);
AND WHEREAS a traveled road allowance known as Green Line is maintained by the
Municipality from its intersection with Pressey Line at its westerly termination, eastward to a
terminus of the traveled portion east of Talbot Line and just east of the lot lines between Lots 19
and 20;
AND WHEREAS the road allowance between Concessions 10 and 11, at Lot 20 contains an
unopened portion road allowance beyond the terminus of the currently traveled and maintained
portion of Green Line;
AND WHEREAS the Owners have applied to the Municipality for permission to reconstruct that
part of the said road allowance between Concessions 10 and 11 at Lot 20, shown as PART 1 on
Plan 11 R-10796, which will have the effect of extending the traveled, maintained and
constructed portion of Green Line farther to the east, at the owners' expense in order to provide
road frontage and access to the Owners' Lands, on which the Owners propose to erect or
permit to be erected a residential dwelling and accessory buildings;
AND WHEREAS the Municipality desires to enter into this Development Agreement to ensure
the orderly construction and potential opening of the said proposed extension of Green Line;
NOW THEREFORE in consideration of the premises, the payment of the sum of Two Dollars
($2.00) of lawful money of Canada together with other good and valuable consideration by the
Owners to the Municipality, the receipt and sufficiency of which is hereby acknowledged, the
Owners and the Municipality hereby covenant and agree as follows:
1. CONSTRUCTION OF ROAD:
(a) The Owners agree to construct, at its sole responsibility, cost and expense a
road on that part of the road allowance between Concessions 10 and 11 at
Lot 20, more particularly described as Part 1 on Plan 11 R-10796, Schedule
"B" Survey;
(b) The construction of the road shall be in accordance with the drawings
prepared by Spriet Associates London Limited, Consulting Engineers, dated
June 10, 2021, Project 221121 (the "Accepted Drawings"), including all
appurtenances thereto and all details shown on the Accepted Drawings,
which are attached to hereto as Schedule "C"
(c) The construction of the road must be carried out in accordance with good
engineering practice and in a good workmanlike manner. Without limiting the
generality of the foregoing, the construction must meet with the satisfaction of
the Manager of Public Works of the Municipality at the Manager's sole and
unfettered discretion.
(d) The Owners must obtain, at their sole cost and expense, all permits,
approvals, road occupancy signage and any other permission or thing that
may be required by the Municipality or any other authority of competent
jurisdiction including, but not limited to, any Ministry approvals required from
the Province of Ontario or permits required by any Conservation Authority, if
applicable.
(e) The Owners agree to be responsible for and to pay all costs and expenses
associated with the construction of the said road and all matters related to the
construction. Without limiting the generality of the foregoing, such costs and
expenses include, but are not limited to, all design and consulting costs,
including input, advice and any additional work that the said Manager of
Public Works may, in his sole discretion, require from Spriet Associates
London Limited.
(f) The Owners hereby agree and acknowledge that no construction may
proceed until all certificates of insurance and securities required by this
Agreement have been provided to the Municipality and until all necessary
permits and approvals have been obtained.
(g) The Owners agree to purchase from the Municipality a civic address sign to
identify the Owners' Lands served by the road construction.
2. ACCEPTANCE
(a) Prior to any final inspection by the Manager of Public Works, the Owners
shall provide a stamped letter from the Owners' retained engineers indicating
that the road construction, including all appurtenances and details shown on
the Accepted Drawings, is complete.
(b) The Manager of Public Works shall perform a final inspection of the road
construction and provide written confirmation of the Municipality's acceptance
of the sufficiency of the road construction, OR shall provide written notice of
any deficiencies that must be rectified.
(c) If any deficiencies are noted then a further final inspection shall be performed
following the rectification of such deficiencies.
(d) When the Manager of Public Works has provided written confirmation of the
sufficiency of the road construction, Municipal staff shall recommend to
Council that it pass a road opening By -Law for the purpose of adding the
newly constructed portion over Part 1, Plan 11 R-10796 to Municipality's
public network of roads.
(e) The Owners specifically acknowledge and agree that there is no guarantee
that a By -Law opening Green Line over Part 1, Plan 11 R-10796 will be
passed by Council for the Municipality. In the event no such By -Law is
passed, the Municipality shall not be responsible or liable for any claims,
costs, damages, payments or any other amounts expended by the Owners
arising out of this Agreement or in preparation for any potential dwellings or
accessory buildings on the Owners' Lands.
3. MAINTENANCE
(a) Until final acceptance of the road construction and the passing and
registration of a By -Law opening Green Line over Part 1, Plan 11 R-10796,
adding it to the public network of roads within the Municipality, the Owners
shall be responsible for all maintenance of the constructed road.
4. SECURITIES
(a) The Owners agree to deposit with the Municipality securities in the form and
amount set out below to secure the performance of all of the obligations of
the Owners pursuant to this Agreement (the Security).
(b) The Security is to be deposited with the Municipality prior to commencement
of any work on the said road, and will be held by the Municipality until:
(i) Seventy-five percent (75%) of the Security shall be returned after a
final construction inspection has been made by the Manager of Public
Works and all work has been completed to his satisfaction, including
rectification of any deficiencies.
(ii) The remaining twenty-five percent (25%) of the Security shall be
returned after a warranty period of one (1) year following registration
of a By-law opening Green Line over Part 1, Plan 11 R-10796. Should
any maintenance or repair, save and except snow plowing, be
required during the one (1) year warranty period, the Owners agree
that the Municipality may draw upon the remaining twenty-five (25%)
Security to complete such maintenance or repair.
(c) The said Security will be in the amount of $66,132.58 Dollars (Sixty-six
Thousand, One Hundred and Thirty -Two Dollars and Fifty-eight Cents)
representing 100 percent of the estimated cost provided by Froese
Excavating Ltd., attached as Schedule "D" to this Agreement, and shall be in
the form of a bank cheque or Letter of Credit satisfactory to the Municipality.
(d) It is understood and agreed that the Municipality may, in its sole discretion,
draw all or make one or more partial draws on the securities for purposes of
completing he construction of the road and all appurtenances thereto,
including rectifying any deficiencies in the said work, including deficiencies
that appear after completion of the said work during the warranty period.
5. ERECTION OF DWELLING
(a) The Owners agree to construct the dwelling on the south side of the road
allowance at a finished grade equal to or greater than the grade of the road.
(b) The Owners acknowledge and agree that there is no municipal water
servicing to the Owners Lands and that the adequacy of a supply of water for
any dwelling to be erected on the lands fronting on the road to be constructed
or the potability thereof, shall be at the sole risk of the Owners, and that the
Municipality shall have no responsibility or obligation to the Owners or any
successors in title with respect to the adequacy and/or potability of a
residential water supply.
(c) It is understood and agreed that:
(i) The road frontage necessary for the Owners Lands to meet with
the criteria for a building permit will not be satisfied until such time
as the Municipality passes and registers a By -Law extending
Green Line over Part 1, Plan 11 R-10796.
(ii) An Occupancy Permit will not be issued for the said dwelling until
all road construction works have been completed to the
satisfaction of the Manager of Public Works for the Municipality.
6. PARKING OF VEHICLES:
The Owners agree that they will neither park vehicles nor permit vehicles to be parked
on the finished road at any time in such a manner as to interfere with access by
emergency vehicles or with road maintenance activities.
7. APPLICABLE LAW:
The Owners agree to comply with all applicable laws of all government bodies and
agencies, including all by-aw and regulations, and to obtain and pay for all required
permits.
6 PAYMENT OF COSTS AND FEES:
The Owners agree to pay all construction, survey, legal, permit costs and fees, including
disbursements, all costs incurred by the Municipality including legal costs, preparation of
this Agreement and any other costs associated with or in any way connected with this
Agreement.
9. DISPUTE RESOLUTION:
(a) In the event of any dispute respecting the interpretation of this Agreement of the
Municipality's requirements, the matter shall be determined by the Manager of Public
Works of the Municipality with respect to any issues relating to the construction of the
road and by the Chief Building Official/Drainage Superintendent with respect to any
issue related to drainage and grades and subject to subparagraph (b) their
respective decision shall be final.
(b) Disputes between the Owners and the Municipality with respect to any provision of
this Agreement, unresolved under subparagraph (a) above, shall be referred to
arbitration in compliance with the provisions of the Arbitrations Act R.S.O. 1990, as
amended, and in particular subject to the following requirements:
(i) There shall be a single arbitrator agreeable to the Municipality and the
Owners, unless both are not able to agree on a single arbitrator, in which
case there shall be a panel of three arbitrators, with each of the
Municipality and the Owners appointing one arbitrator and those two
arbitrators appointing the third.
(ii) The decision of the arbitrator or arbitrators as the case may be, shall be
final.
±.111:j The costs of the arbitration shall be borne entirely by the Owners.
i.ivi Notwithstanding the existence of any such disputes, the Municipality and
the Owners shall continue to carry out their obligations under this
Agreement in a timely fashion, and such carrying out of obligations shall
be without prejudice to their respective rights under this Agreement.
10. INDEMNITY AND INSURANCE:
(a) Until the Municipality has finally accepted the road construction by a road
opening By -Law, the Owners shall indemnify the Municipality, its agents,
employees, contractors and subcontractors from and against all expenses,
actions, causes of actions, suits, claims, demands or administrative orders
whatsoever which may arise, either directly or indirectly, by reason of the
construction and installation of any and all of the road and other
appurtenance construction performed pursuant to this Agreement, including
all plans, specifications and contracts therefor and any and all
documentation submitted by or on behalf of the Owners in support of the
acceptance of such plans, specifications and contract. Compliance with the
insurance requirements of this Agreement shall not be construed as relieving
the Owners from responsibility for indemnity of the Municipality for liability not
covered by such insurance or in excess of the policy limits of such insurance.
(b) The Owners agree to maintain insurance in sufficient amount and description
as will protect the Owners and the Municipality from claims for damages,
personal injury including death, and for claims from property damage which
may arise from the Owners' operations pursuant to this Agreement, including
any act or omission of the Owners' agents or employees while engage in any
activity pursuant to this Agreement and such coverage shall include all costs,
charges and expenses reasonably incurred for any injury or damage.
(c) In addition to the foregoing, the Owners covenant and agree that:
(i) The limits of liability for Personal Injury, Bodily Injury and Property
Damage combined shall be for not less than Five Million
($5,000,000.00) Dollars for each occurrence.
(ii) All policies shall provide that they cannot be cancelled, allowed to lapse
or be materially changed (to the detriment of the Municipality) without
at least thirty (30) days' notice to the Municipality by registered mail.
(iii) The Municipality shall be named as an additional insured and the policy
shall include a provision for cross liability.
11. UNSATISFACTORY OR INCOMPLETE WORK:
(a) Upon any failure by the Owners to do any work or rectify any unsatisfactory work
upon seven day's written notice, the Manager of Public Works for the Municipality
may procure same to be done at the Owners' expense and all costs may be
recovered from the Security held under this Agreement. In any case of emergency
affecting public safety, the said Manager of Public Works may act without notice or
on such notice as is reasonable in the circumstances. Any realization of the Security
against costs described in this subparagraph does not relieve the Owners of paying
any amount of the Municipality's costs that is not covered by the Security.
(b) Notwithstanding that the Municipality may hold Security pursuant to this Agreement,
in the event of a failure, neglect or refusal by the Owners to comply with this
Agreement, the Municipality shall not be required nor obligated to:
(i) Complete any of the works or services required by this Agreement; or
(ii) Maintain any of the works or services required by this Agreement.
12. CONSTRUCITON LIENS:
(a) The Owners shall comply with all of the provisions of the Construction Act, R.S.O.
1990 c. C30, as amended from time to time and without limiting the generality of the
foregoing, shall hold in its possession all the statutory holdbacks and any additional
funds required to be held by the said Act. These holdbacks and funds shall not be
disbursed except in accordance with the Act.
(b) The Owners shall, at their own expense, within ten (10) days of receiving written
notice from the Municipality to do so, pay, discharge, vacate, and obtain and register
a release of all charges, claims, liens and all preserved or perfected liens, made,
brought or registered pursuant to the Construction Act, R.S.O. 1990 c. C 30, which
affect any lands of the Municipality, including public highways and road allowances,
and which arise out of the performance of this Agreement by the Owners and their
servants, employees, agents, contractors and subcontractors. Should the Owners fail
or refuse to pay, discharge vacate or obtain and register a release of all charges,
claims, liens and all preserved or perfected liens, then the Municipality may proceed
to take any legal action available to it and the Owners hereby specifically agree to
indemnify the Municipality of all of its costs associated with taking such legal action
including its legal costs on a full indemnity scale.
(c) The Manager of Public Works for the Municipality may at any time, authorize the use
of all or part of the Security required pursuant to this Agreement, including bank
cheque or letter of credit:
(i) To pay, discharge, vacate, and obtain and register a release of all charges,
claims, liens, and all preserved or perfected liens, made, brought or
registered pursuant to the Construction Act, R.S.O. 1990, c. C30, which affect
any lands, including public highways and road allowances of the Municipality
in the event the Owners default on the performance of this section, and
(ii) To pay to the Municipality any amounts owing to it pursuant to this section.
13. ENTIRE AGREEMENT.
This Agreement is the entire Agreement between the Owners and the Municipality
regarding the subject of this Agreement and it can be amended or supplemented only by
a document executed in writing by both the Owners and the Municipality.
14. SEVERABILITY:
If any term of this Agreement is found to be invalid, illegal or unenforceable by a court
having the jurisdiction to do so, that term is to be considered to have been severed from
the rest of this Agreement and the rest of this Agreement remains in force unaffected by
that finding or by the severance of that term.
15. CONTEXT:
In this Agreement, unless the context otherwise requires, the singular includes the plural
and the masculine includes the feminine gender and a corporation.
16. GOVERNING LAW:
This Agreement shall be governed by and construed and enforced in accordance with
the laws of the Province of Ontario.
17. NO REPRESENTATIONS OR WARRANTIES:
It is acknowledged and agreed that the Municipality has made no representations or
warranties whatsoever as to site conditions in the proposed development of the
suitability of the site for the construction of a road.
18. SUCCESSORS AND ASSIGNS:
This Agreement shall be binding upon and shall enure to the benefit of the parties hereto
and their respective successors and assigns.
19. NOTICE:
Any notice required or permitted to be given hereunder or any tender or delivery of
documents may be sufficiently given by personal delivery or, if other than the delivery of
an original document, by facsimile transmission to the Municipality at the following
address:
Municipality of Bayham
56169 Heritage Line
P.O. Box 160
Straffordville ON NOJ 1Y0
and to the Owners at:
Andrew Heutinck and Kimberly Heutinck
1582 Concession # 3
Wilsonville ON NOE 1Z0
Any notice may also be given by prepaid registered mail, and such notice shall
be effective four (4) days following the date of mailing, except in the event that
there shall be a disruption in postal services at the date of mailing, in which case
notice shall be effective by personal delivery or a facsimile transmission as stated
above.
20. HEADINGS:
Headings contained in this Agreement are for reference purposes only and do not affect
the meaning of this Agreement.
IN WITNESS WHEREOF the Corporate parties have affixed their Corporate Seals under the
hands of their officers duly authorized in that behalf, and the individual parties have set their
hands and seals,
SIGNED, SEALED AND DELIVERED
In the presence of:
141 T..
} Andre Heutinck
k
j Kim erly eutinck
}
THE CORPORATION OF THE
MUNICIPALITY OF BAYHAM
}
} Ed Ketch b w, Mayor
}
}
7hbni ayer, Clerk
SCHEDULE `A' TO BY-LAW NO. 2022-029
Legal Description of Owners' Lands:
BAYHAM CON 10 N PT LOTS 20 AND 21 PT RD ALLOW AND RP 11 R10176 PART 1
Roll No. 3401-000-006-16600
-7-v rj y- L. /-q— /UU . ,-90d ol - o.;t -?
4
Hi8M $�
� r
uroe �
3 •n' A..po 9ca rr�s[I Mi au � �
3 ,b M,IG X
s f�
I
-u
+7+J
w
ci
A
AL
'
1b'4'r1
Nit IHii
` , r T - /3Y-Ll9-v Alo- ,RDA -00k-9
�15/ /Sy'— / /P.
FROESE EXCAVATING LTD Estimate
408 plowmans line, RR#6
Tillsonburg ON N4G 4G9
froeseoffice@gmail.com
HST (ON) Registration No.: 824111041 RT0001
Kim Heutinck
Green Line Tillsonburg
519-420-0152
ESTIMATE # DATE I
1110 - — — 2WIJ2=
ECFaVED
MAR 0 T 2022
MUNICIPALITY OF BAYHAM
ryr�v':'�Am
DATE
ACTIVETY
DESCRIPTION
l A} AMOUNT
28/01/2022
Excavating
Strip and remove topsoil.
H 21,999.90
Supply and install 130m of 250m dia
storm sewer with 2 catch basins
complete with frame, and grate., 130 @
$169.23
28/01/2022
Excavating
Suppy and install 300mm thick granular
H 12,001.50
"B" and 150mm thick granular "A" for
road extension area 350 Sqm and fine
graded for asphalt., 350 @ $34.29
28/01/2022
Gabian Stone / rock
Supply and install Rip rap mat at outlet.,
H 800.00
1 @ $800.00
28/01/2022
Construction
Supply and install dead end road sign.,
I I 823.00
1 @ $823.00
28/01/2022
Asphalt
Supply and install 350 Sqm of 38mm
I I 22,900.00
thick HL3 and 38mm thick HL8 paving.,
1 @ $22,900.00
Green Line
SUBTOTAL
58,524.40
HST (ON) @ 13%
7,608.18
TOTAL
$66,132.58
TAX SUMMARY
RATS -
- — --- TA}[ .-- -- - -----
-- ---- - NET
HST (ON) ( 7 J%
7,608.18
58,524.40
Accepted By Accepted Date