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HomeMy WebLinkAboutBy-law No. 2022-043 - DRAFTTHE CORPORATION OF THE MUNICIPALITY OF BAYHAM BY-LAW NO. 2022-043 BEING A BY-LAW TO AUTHORIZE THE EXECUTION OF A SITE PLAN AGREEMENT BETWEEN BORM CAPITAL INC. AND THE CORPORATION OF THE MUNICIPALITY OF BAYHAM WHEREAS Section 41 of the Planning Act, R.S.O. 1990, c. 13, as amended, provides, in part, that, where in an Official Plan an area is shown or described as a proposed site plan control area, the Council of the local municipality in which the proposed area is situate may, by by-law, designate the whole or any part of such area as a site plan control area; AND WHEREAS the Municipality of Bayham has enacted a Site Plan Control Area By-law 2016-047 pursuant to Section 41 of the said Planning Act. AND WHEREAS Section 41 of the said Planning Act, as cited above, provides that no person shall undertake any development in an area designated as subject to site plan control pursuant to a by-law enacted under that section without first having received approval, as the Council may determine, of the following: 1. Plans showing the location of all buildings and structures to be erected and showing the location of all facilities and works to be provided in conjunction therewith and of all facilities and works required under clause (7) (a). AND WHEREAS the Council of the Corporation of the Municipality of Bayham now deems it necessary to enter into a Site Plan Agreement with Borm Capital Inc. NOW THEREFORE THE COUNCIL OF THE CORPORATION OF THE MUNICIPALITY OF BAYHAM ENACTS AS FOLLOWS: 1 _ THAT the Mayor and Clerk be and they are hereby authorized and directed to execute the Site Plan Agreement between The Corporation of the Municipality of Bayham and Borm Capital Inc. affixed hereto and forming part of this By-law as Schedule "A" 2. THAT the executed agreement be registered at the owner's expense against the land to which it applies under the Land Titles Registry Elgin # 11. READ A FIRST AND SECOND TIME this 21st day of July 2022. READ A THIRD TIME AND FINALLY PASSED this 21St day of July 2022. MAYOR SCHEDULE `A' TO BY-LAW NO. 2022-043 SITE PLAN CONTROL AGREEMENT BORM CAPITAL INC. AND THE CORPORATION OF THE MUNICIPALITY OF BAYHAM Part Lot 1, Concession 4 7288 Richmond Rd, Bayham 2 This Agreement made in duplicate this 21 st day of July 2022. BETWEEN: AND: BORM CAPITAL INC. (hereinafter the "Owner") THE CORPORATION OF THE MUNICIPALITY OF BAYHAM (hereinafter the "Municipality") Of the First Part Of the Second Part WHEREAS the Owner is the owner in fee simple of the land situate in the Municipality of Bayham in the County of Elgin and Province of Ontario, being part of Lot 1, Concession 4 therein, and more particularly identified and depicted in Attachment "A" attached hereto (and hereinafter referred to as the "Lands" ); AND WHEREAS, in effect, the Official Plan of the Municipality of Bayham designates the entirety of the Municipality as a site plan control area; AND WHEREAS the Owner intends to develop the lands in accordance with a Site Plan attached and marked as Attachment "B" hereto (and hereinafter referred to as the "Plan"); AND WHEREAS the Municipality, as a condition of approval of proposed development of the Lands requires the Owner to enter into a Site Plan Control Agreement as contemplated by By -Law No. 2016-047, being the Site Plan Control By -Law enacted by the Council for the Municipality; NOW THEREFORE, in consideration of good and valuable consideration exchanged herein and, further thereto, the sum of two dollars ($2.00) of lawful money of Canada now paid by each party to the other, the receipt and sufficiency of which consideration is hereby acknowledged, the Owner and Municipality hereby covenant and agree as follows: 1. The Owner agrees that no building permit will be available for the development of the Lands until the Plan has been approved by the Municipality and further agrees that work in relation to such development will not commence prior to the issuance of a building permit. $. The Attachments hereto and as described below, attached and verified by the signatures of the Parties hereto, are incorporated in and form part of this Agreement: Attachment "A" — Lands Description Attachment "B1" — Project 7046 Site Plan/Grading Plan Rev. No. 6 Attachment "B2" — Project 7046 Site Details/Overall Location and Phasing Plan Attachment "C" — Certificate of Compliance, 3. The Parties agree and acknowledge that Attachment "A" (Lands) hereto identifies the Lands which are subject to this Agreement and, furthermore, Attachment "B" depicts and details the Plan for development of the Lands, including but not limited to; (a) The location and height of all buildings and structures to be erected; (b) The location of vehicular entrances and exits; (c) The location and provision of off -Street vehicular loading and parking facilities, including driveways for emergency vehicles; (d) Walkways and all other means of pedestrian access; (e) The location and provision of fences, trees and all ground cover or facilities for landscaping the Lands and protecting the adjoining lands and, furthermore, depicts the lighting, including flood lighting, of the Lands and any building or structure to be erected thereon; (f) The location and provision for the collection and storage of garbage and other waste materials. 4. The Owner agrees and covenants that the Lands will be developed, including but not limited to any building or structure that is to be erected thereon, in strict accordance with the Plan depicted on Attachment "B" hereto, subject only to such changes receiving prior approval from the Municipality. S. The Parties agree and acknowledge that Attachments "B1" and "B2" hereto depicts and details proposed site servicing facilities for development of the Lands, including but not limited to; (a) Lot grading information, indicating overland flow to and from adjacent properties, collection and disposal of surface water and storm water management (if deemed necessary by the Municipality); (b) Location of utilities within the road allowance and site connections to these utilities; (c) Building finished floor elevations; (d) Other information as required by the Municipality. 6. The Owner agrees and covenants that the site servicing upon the Lands will be in strict accordance with the Plans depicted on Attachments "131" and "132" hereto, subject only to such changes receiving prior approval from the Municipality. 7. The Owner further agrees that: (a) Final grades and elevations will be established to the satisfaction of the Municipality. The Owner will provide proof of final grades and elevations certified by a professional land surveyor or civil engineer prior to consideration of any request for final release of any security held by the Municipality relative to the proposed development of the Lands. (b) All necessary provisions for service connections on -site will be made to the satisfaction of the Municipality. (c) Construction work will be carried out expeditiously, in good and work -man -like manner, in accordance with good trade practices, and, at all times, so as to minimize nuisance. (d) All necessary precautions to avoid dust, noise and other nuisances and to provide for public safety will, so far as possible, be undertaken so as to achieve compliance with all federal, provincial, or other municipal regulations or standards. (e) All necessary care will be taken to see that mud and soil is not tracked or spilled onto any public street and, where such tracking occurs, the street shall be cleaned at the end of each working day. (=} Garbage disposal facilities will be of an enclosed type located and depicted on the Site Plan/Grading Plan as attached as Attachment "B1" hereto, at all times designed in a manner satisfactory to the Municipality. (g) Unless otherwise provided, all parking lots and walkways will be finished with hot -mix asphalt, concrete or paving stones to the satisfaction of the Municipality and have permanent bumper curbing along all parking areas that abut the limits of the Lands. (h) No topsoil shall be stockpiled on any other portion of the Lands except those lands identified for that purpose in Attachment "A" to this Agreement; provided that all topsoil shall be stockpiled and maintained in a manner which allows for the maintenance of weeds and other noxious plants; and the Municipality may at all times enter the Lands for purposes of inspection of such stockpiling of topsoil and, if necessary, for purposes of maintenance of weeds, the cost of which shall be borne by the Owner and collected either in like manner as municipal taxes or from any security held by the Municipality to ensure performance of all obligations by the Owner in respect of the development of the Lands. (i) Stockpiling of snow will not be allowed on the Lands where it will constitute a hazard as determined by the Municipality. (; The electrical servicing of the Lands shall be subject to the approval of Hydro One, or any successor utility thereto. (k) During the period of development of the Lands as contemplated by this Agreement, if the Owner fails to take any act required for public safety or convenience, as determined by the Municipality, and upon seven (7) days written notice, the Municipality, in addition to any other remedy at law, may enter upon the Lands and undertake any and all works to correct such failure and thereby reinstate such element of public safety or convenience, the cost of which municipal work shall be borne by the Owner and collected in like manner either as municipal taxes or from any security held by the Municipality to ensure performance of all obligations of the Owner hereunder. I) The Municipality is at liberty to consider any breach of this Agreement as a violation of By -Law No. 2016-047, being the Site Plan Control By -Law for the Municipality of Bayham, and Section 41 of the Planning Act, R.S.O. 1990, c. P. 13, as amended, thereby constituting an offence pursuant to section 67 of the said Act and, further, entitling the Municipality to seek any manner of remedy or relief as based thereon, including but not limited to the issuance of a stop work order and/or injunction to restrain continuation of such breach. (m) Nothing in this Agreement constitutes a waiver of the duty of the Owner to comply with any other by-law of the Municipality or any other law, whether federal or provincial in nature. S. The Owner shall be responsible for consulting with Hydro One, or any successor utility thereto, regarding any matters which relate to utility services provided by Hydro One. 9. The Owner shall be responsible for consulting with and obtaining any necessary approval from any and all regulatory body having an interest in or jurisdiction over the development of the Lands, including but not limited to the Long Point Region Conservation Authority and the Ministry of the Environment, Conservation & Parks. 10. The Owner shall satisfy all requirements in relation to fire protection for the building or buildings or structure or structures to be erected upon the Lands to the satisfaction of the Fire Chief for the Municipality of Bayham and the Ontario Building Code. 11. The Owner agrees to pay for damages to public property, including but not limited to any municipal drain, ditch, street surface, or storm and sanitary sewer systems, which may occur during the development of the Lands as contemplated by this Agreement. In the event that the Owner shall fail to repair any such damage within thirty (30) days of occurrence, the Municipality may enter upon the Lands and effect such repair at the sole risk and expense of the Owner. 12. The Owner agrees that any and all lighting required for the development of the Lands in accordance with this Agreement shall be installed and maintained so as not to interfere with the use or enjoyment of adjacent properties or with the safe flow of traffic on abutting or adjacent streets, the determination of which interference shall be in the sole discretion and opinion of the Municipality. 13. The Owner shall landscape and maintain plants and groundcover upon the Lands and in strict accordance with the Plans and at all times to a standard acceptable to the Municipality. 5 14. If the Ontario Building Code requires that an Architect or Professional Engineer, or both, shall be responsible for the field review of any new building or structure or extension thereof as contemplated by this Agreement, then the Owner shall not occupy or use or permit occupation or use of, any such building or structure or extension thereof until after an Architect or Professional Engineer has delivered approval thereof to the Municipality by a letter addressed to the Municipality and signed by the said Architect or Professional Engineer and certifying that all construction and/or services on or in the Lands, including any such building or structure or extension thereof thereon as required for the development or redevelopment of the Lands have been installed and/or constructed in a manner satisfactory to the Architect or Professional Engineer. 15. The Municipality, through its servants, officers, and agents, including its Chief Building Official, Fire Chief, and Municipal Engineer, may, from time to time and any time, enter upon the Lands and/or any building or structure being erected thereon to inspect; (a) the progress of the development upon the Lands; (b) the state of maintenance as required by this Agreement; (c) compliance with any and all laws, whether Federal, Provincial, or Municipal, including any and all by-laws for the Municipality and more particularly including By -Law No. 2016-047 as Site Plan Control By -Law; and, (d) compliance with this Agreement. 16. In the event of any servant, officer, or agent of the Municipality determining, upon inspection of the Lands and any building or structure erected thereon, that the development is not proceeding in strict accordance with the Plan, and specifications filed, that servant, officer, or agent shall forthwith place a notice requiring all work upon the Lands to be stopped and, furthermore, forward, by registered mail, a copy of such notice to the Owner at his, her, or its last known address and the Owner shall forthwith correct the deficiency in relation to which that notice relates or, alternatively, appeal to the Council of the Municipality of Bayham as hereinafter provided. 17. In the event of any servant, officer, or agent of the Municipality, having inspected the Lands or any building or structure being erected thereon in accordance with this Agreement, be of the opinion that the state of maintenance of such Lands, building, or structure is unsatisfactory, such servant, officer, or agent shall forthwith forward a notice detailing the particulars of such opinion and the basis therefor, by registered mail, to the Owner at his, her, or its last known address and the Owner shall forthwith correct the deficiency giving rise to that opinion of unsatisfactory maintenance or, alternatively, appeal such opinion and the need for correction to the Council of the Municipality of Bayham as hereinafter provided. 18. In the event that the Owner should disagree with the opinion of the servant, officer, or agent of the Municipality as to the state of compliance and/or maintenance, such Owner shall appear before the Council of the Municipality of Bayham, which Council, after hearing the details of the alleged deficiency and hearing the response of the Owner, shall express its opinion as to whether the maintenance of the lands, building, or structure is satisfactory and which decision shall constitute a final determination of the issue. 19. In the event that the Owner shall fail to obey a stop work order issued pursuant to section 16 above, the Owner acknowledges and recognizes the right of the Municipality to apply to a Court of competent jurisdiction in the Province of Ontario for appropriate relief, including but not limited to an injunction restraining continuation of work upon the Lands. 20. In the event that an Owner shall fail to correct a deficiency after notice is given pursuant to sections 16 or 17 above and which notice the Council of the Municipality of Bayham subsequently determines is correct in accordance with section 19 above, the Council of the Municipality of Bayham may by by-law direct, on default of the matter or thing being done by the Owner and after two (2) weeks written notice to the Owner as delivered by registered mail to the last known address of the Owner, that such matter or thing be done by or on behalf of the Municipality, at the expense of the Owner, which expense may be recoverable by action, as municipal taxes, or as drawn from and paid by any security deposit with the Municipality as security for full performance of all obligations by the Owner in respect of the development contemplated by this Agreement. 21. The Owner further acknowledges that any contravention of any provision of this Agreement will constitute a contravention of By -Law No. 2016-047 for the Municipality of Bayham, being the Site Plan Control By -Law, as enacted pursuant to section 41 of the Planning Act, R.S.O. 1990, c. P.13, as amended, and, among other methods of remedy or relief, is subject to prosecution and penalty as provided for in section 67 of such Act. 22. Unless otherwise authorized, in the event that the Owner wishes to revise the development as described in and depicted in Attachments "A" and/or "B1" and "B2" attached, he, she, or it shall make application to the Council of the Municipality of Bayham for reconsideration and approval and, furthermore, the Owner agrees that construction shall not proceed so as to implement any such revision until approval is given by such Council or, alternatively and on appeal, the Ontario Municipal Board pursuant to the procedure set forth in section 41 of the Planning Act, RSO 1990, c. P.13, as amended. 23. The Owner agrees to pay to the Municipality all administration costs incurred in connection with the preparation and/or implementation of this Agreement, including all legal, engineering, and inspection costs. 24. Upon execution of this Agreement and as contribution to capital charges, the Owner shall pay to the Municipality, in cash or by certified cheque, the amount of $0.00 (Zero Dollars and Zero Cents). 25. Upon execution of this agreement and as contribution to Site Plan Review expenses, the Owner shall pay to the Municipality, in cash or certified cheque, the amount of $250.00 (Two Hundred Fifty Dollars and Zero Cents) collected through the Application fee. 26. Before commencing any of the work contemplated herein, the Owner shall supply the Municipality with a Liability Insurance Policy, or acceptable proof thereof, providing coverage to a minimum amount of $2,000,000.00 per occurrence, and in a form satisfactory to the Municipality, thereby indemnifying the Municipality from any loss arising from claims for damages, injury, or otherwise, in connection with the work to be undertaken upon the Lands and for which approval contemplated by this Agreement is granted. The said policy of insurance shall be provided at the time of execution of this Agreement and shall remain in force until the development contemplated herein is complete and all required documentation in evidence thereof has been filed with the Municipality. 27. The Owner hereby identifies the intended completion date for the development contemplated by this Agreement as on or before June 2, 2024. The Parties agree that it is a responsibility of the Owner to arrange for completion of the development contemplated by this Agreement on or before such date and, furthermore, to apply for any extension of and from such date by no later than sixty (60) days prior to such intended completion date. 28. As security for the performance and completion of all works required by this Agreement, the Owner shall provide the Municipality with a Letter of Credit, in the amount of $75,000.00 (Seventy-five Thousand Dollars and Zero Cents). The said Letter of Credit will be based on the estimated cost of alterations to public property, roadways, curbs and gutters and drains, and any repairs for damages to public property, roadways, curbs and gutters and drains, plus all site -specific components as identified by the Site Plan/Grading Plan, attached as Attachments "B1" and "B2", which are approved under this Agreement. The amount of the Letter of Credit shall be established by the Municipality. The irrevocable Letter of Credit will be issued by a Chartered Bank or other institution acceptable to the Municipality and provide specific reference to this Agreement and provide for the value thereof to be payable to the Municipality at any time or, in part, from time to time, upon written notice from the Municipality. The Letter of Credit shall be provided by the Owner to the Municipality at the time of execution of this Agreement and shall remain in force, until twelve (12) months after completion of the development contemplated by this Agreement, including but not limited to production of all documentation required for evidence of such due and proper completion of the Development. 29. This Agreement and the provisions thereof do not grant to the Owner, or any person acquiring any interest in the said Lands, any rights against the Municipality with respect to the failure of the Owner to perform or fully perform any of his, her, or its obligations under this Agreement or any negligence on the part of the Owner in relation to the Performance of any obligations required by this Agreement. 30. In the event that construction on the Lands has not commenced within the one (1) year from the date of registration of this Agreement against title to the Lands, the Municipality may, at its option and on one (1) month written notice to the Owner, declare this agreement to be terminated, subject to renegotiation at the option of the Municipality. In the event that the Agreement is terminated as set forth above, the Owner agrees that construction on the Lands as contemplated by this Agreement will not be commenced or continued until such time as the terms of this Agreement, at the option of the Municipality, have been renegotiated. 31. Following completion of the development of the Lands in accordance with the Plans contemplated by this Agreement and attached as Attachments "A" and "B1" and "62" hereto, the Owner shall prepare, sign, and deliver to the Municipality a Certificate of Compliance in the form and of the content set forth in Attachment "C" hereto, by which Certificate the Owner shall confirm that all elements of this Site Plan Agreement have been completed in accordance with the terms hereof and the provisions of By -Law No. 2016-047, being the Site Plan Control By -Law for the Municipality. 9 32. The Owner agrees that he, she, or it will not call into question, directly or indirectly and in any proceeding whatsoever in law or in equity or before any administrative tribunal or court, the right of the Municipality to enter into this Agreement or to enforce each and every term, covenant, and condition herein contained and, furthermore, acknowledges that this provision may be pled as an estoppel as against the Owner in any such case. 33. The Owner agrees on behalf of himself, herself, or itself, including their respective heirs, executors, ministries, and assigns, to save harmless and indemnify the Municipality from all losses, damages, costs, charges, and expenses which may be claimed or recovered against the Municipality by any person or persons arising either directly or indirectly from any action taken by the Owner in accordance with this Agreement. 34. All facilities, works, and other matters required by this Agreement shall be provided and maintained by the Owner at its sole risk and expense but at all times to the satisfaction of the Municipality in accordance with all standards applied by the Municipality and, in default thereof and without limiting any right or claim to remedy or relief as available to the Municipality, the provisions of section 446 of the Municipal Act, 2001, S.O. 2001, c. 25, as amended, shall apply. 35. This Agreement shall be registered, at the expense of the Owner, against title to the Lands and the Municipality shall be entitled, subject to the provisions of any statute of the Province of Ontario, including but not limited to the Registry Act and/or Land Titles Act, to enforce its provisions against the Owner as named herein, including any successor in title thereto. Registration must be completed prior to the issuance of a building permit. 36. This Agreement enures to the benefit of and is binding upon the Parties hereto and their respective heirs, executors, administrators, and assigns. IN WITNESS WHEREOF, the Parties hereto have executed this Agreement by their hands and seals of under cov r of duly authorized officials at the Municipality of Bayham, Straffordville, Ontario this C2) day 202.i21 Signed, Sealed, and D Zvered Z. In the presen } Etiefihe borm, Owner Witness I have authority to bind the Corporation 1 1 CORPORATION OF THE MUNICIPALITY OF BAYHAM ) Ed Ket •Jzab w, Mayor } of s payer, Clerk ) Welhave authority to bind the Corporation 10 ATTACHMENT "A" Lands Property Roll # 3401-000-007-00200 Municipal Address: 7288 Richmond Rd Legal Description: Concession 4 Part Lot 1 RP11 R6372 Parts 1 and 2, RP 11 R9081 Part 1 and RP 11 R10566 Part 1 +k � I i pp 5i I� � � � a -'` 4e �i ■9 a 4 �� yyS�� � 6pa dd� pyg(p° �� �fl 0 �.:Ij vj � r g x fl g gygp ��- p J ..t e s,nun .�Km nn air aw 0 J , � I r7. I I I 1 I ■EN= PROPERTY IDENTIFICATION: Municipal Address: ATTACHMENT "C" CERTIFICATE OF COMPLIANCE 7288 Richmond Rd Owner: Borm Capital Inc. This document serves to completed in accordance undersigned, as Owner Municipality of Bayham. certify that the Development project on the afore -noted Lands has been with the terms and conditions of the Site Plan Agreement between the and the Corporation of the Municipality of Bayham as dated 20_, and as authorized by By -Law No. 20 - for the said The undersigned makes this certification declaring it to be true and correct and as if made under oath. Dated at Witness Ontario this day of Etienne Borm, Owner Borm Capital Inc. Address of Owner (Mailing) Telephone Number 20_