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HomeMy WebLinkAboutBy-law No. 2022-050THE CORPORATION OF THE MUNICIPALITY OF BAYHAM BY-LAW NO. 2022-050 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 Green Line road allowance shown as PART 1 on Plan 11 R- 10796, described in Schedule `A' attached hereto and forming part of this By-law, at the Owners' expense in order to provide 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 OF THE CORPORATION OF THE MUNICIPALITY OF BAYHAM ENACTS AS FOLLOWS: I 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. 3 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 JULY 2022. t -MAYOR B L E'R K i I Schedule `A' By-law No. 2022-050 DEVELOPMENT AGREEMENT DEVELOPMENT AGREEMENT made in duplicate this 21st day of July 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 Road 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 part of the conditions of development of the Owners' land is that the unopened road allowance between Concessions 10 and 11 at Lot 20 requires extension by further construction over the portion of municipal lands shown as PART 1 on Plan 11 R-10796, such plan attached hereto as Schedule "B", which will have the effect of extending the traveled, maintained and constructed portion of Green Line farther to the east, with such work to be contracted for by the Municipality but to be paid for solely and completely 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 and the Owners previously entered into an Agreement dated April 21, 2022 governing these matters that requires replacement; 7 AND WHEREAS the Municipality desires to enter into this Development Agreement to ensure orderly development; 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. OWNERS' RESPONSIBILITY FOR COSTS OF ROAD CONSTRUCTION: (a) The Owners agree that the actual municipal costs of constructing 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 shall be solely at the Owners' cost and expense, inclusive of associated drainage elements. For greater clarity, the Owners hereby agree and acknowledge that notwithstanding that the Municipality will contract directly with a contractor for the purpose of construction, the Owners shall be responsible for reimbursing the municipality for all actual costs of the construction, including any necessary consulting or other ancillary fees including any costs associated with administration, legal, consulting, permits, approvals, signage or any other fee that may be required by any authority of competent jurisdiction. The Owners agree and acknowledge that they shall not be parties to the contract between the Municipality and the contractor and shall have no control over any construction activities. (b) The Owners agree that they shall be responsible for the costs described in paragraph 1(a) for construction of the road and drainage elements that shall be substantially 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". Further, the Owners agree that they shall be solely responsible for the costs of Spriet Associates London Limited, Consulting Engineers, preparation and delivery of as -built drawings and any costs associated with inspection and provision of a clearance letter indicating that the construction meets all aspects of the Accepted Drawings design and this Agreement. (c) The Owners agree to be responsible for and to pay all costs and expenses associated with the said construction and all matters related to the construction. The Owners agree and acknowledge that such costs may not be limited to, and may exceed, the amount of the cost estimate from Froese Excavating Ltd. and/or the amount of any security held by the Municipality. 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. (d) The Owners agree to purchase from the Municipality a civic address sign to identify the Owners' Lands served by the road construction. (e) The Owners agree that any amounts owed under this Agreement, if not paid within thirty (30) days of demand by the Municipality shall be considered a debt to the Municipality and may be collected in a like manner to taxes pursuant to section 446 of the Municipal Act, 2001 from any property owned by the Owners within the jurisdiction of the Municipality. 2. NO GUARANTEE OF ROAD OPENING BY-LAW (a) When the Manager of Public Works has provided written confirmation of the sufficiency of the road construction to the Owners, 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. (b) 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. For greater certainty, the Owners hereby acknowledge and agree that it is contemplated by this Agreement that the Owners shall be responsible for the cost of construction even if development of the Owners Lands is not possible or permitted for any reason whatsoever. 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 costs associated with 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 Froese Excavation Ltd. pursuant to the road construction agreement entered into between the Municipality and Froese Excavating Ltd. for the purpose or road construction ("the Security"). The Security is to be deposited with the Municipality prior to commencement of any work on the said road, and will be applied by the Municipality to pay for the road construction as well as any and all associated costs required by this 4 Agreement. For greater clarity, the Owners hereby specifically agree, acknowledge and understand that the Security shall not be returned, but shall be utilized to reimburse the Municipality for the costs, fees and expenses described in this Agreement. (b) The said Security will be in the amount of $72,587.58 (Seventy Two Thousand and Five Hundred Eighty -Seven 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 an additional $2,500 (Two -Thousand and Five -Hundred Dollars) for as -built drawings as estimated by Spriet Associates London Limited, and shall be in the form of a bank cheque or certified funds, satisfactory to the Municipality. (c) It is understood and agreed that the Municipality may, in its sole discretion, draw all or make one or more partial draws on the Security for purposes of completing the 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. (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 Security for the purpose of paying any cost associated with the road construction as provided for in this Agreement. 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 cause or permit vehicles to be parked on Green Line 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-law and regulations, and to obtain and pay for all required permits. 3 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 drawing upon the Security for the purpose of the construction of the road and/or determined by the Chief Building Official/Drainage Superintendent with respect to any issue with regard to drawing upon the Security 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. (iii) The costs of the arbitration shall be borne entirely by the Owners. (iv) 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) 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 performance of the obligations under this Agreement, including any act or omission, save and except where such act or omission arises out of the Municipality's own negligence. 11. APRIL 21, 2022 AGREEMENT AT AN END The Agreement entered into between the parties dated April 21, 2022 is hereby terminated immediately upon the execution of this Agreement and replaced with this Agreement. 12. 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. 13. 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. 14. CONTEXT: In this Agreement, unless the context otherwise requires, the singular includes the plural and the masculine includes the feminine gender and a corporation. 15. GOVERNING LAW: This Agreement shall be governed by and construed and enforced in accordance with the laws of the Province of Ontario. 16. 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 road, the Owners' Lands or the passing of any by-law or issuing of any permit necessary for completion of the development. 17. 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. 18. 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. 19. REGISTRATION AND FUTURE OWNERS This Agreement shall be registered against the Owners' Lands at the sole cost and expense of the Owners, pursuant to section 71 of the Land Titles Act, RSO 1990 c. L. 5.. The parties hereto agree that this Agreement shall bind future owners and any successors in title as if such future owners and/or successors in title are the Owners defined in this Agreement. 20. VOLUNTARINESS The Parties hereto have entered into this agreement voluntarily and have had the opportunity to receive independent legal advice and where such advice was not obtained, the party not receiving such advice hereby acknowledges and agrees that they specifically waived such opportunity 21. 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: `-An re eutincK Witness ) Kimberly Heutinck THE CORPORATION OF THE MUNICIPALITY OF BAYHAM d Ketcha aw, Mayor ayer, Clerk SCHEDULE `A' TO DEVELOPMENT AGREEMENT HEUTINCK Assessment Roll Number: 3401-000-006-16600 Legal Description of Owners Lands': Bayham Con 10 N Pt Lots 20 and 21 Pt Rd Allow and RP 11 R10176 Part 1 SCHEDULE `B' TO DEVELOPMENT AGREEMENT HEUTINCK Survey SCHEDULE `C' TO DEVELOPMENT AGREEMENT HEUTINCK Road Construction Design SCHEDULE `D' TO DEVELOPMENT AGREEMENT HEUTINCK Construction Cost Estimate