HomeMy WebLinkAboutBy-law No. 2005-095 THE CORPORATION OF THE
MUNICIPALITY OF BAYHAM
BY-LAW NO. 2005-95
BEING A BY-LAW TO AUTHORIZE THE
EXECUTION OF A SITE PLAN AGREEMENT
WITH UNDERHILL FARMS LTD
WHEREAS subsection 41(2) of the Planning Act, R.S.O. 1990 Chapter P.13 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 pursuant to Section 41 of the said Planning Act.
AND WHEREAS subsection 41 (4) of the said Planning Act provides in part that no
person shall undertake any development in an area designated under subsection(2)unless
the council of the municipality or, where a referral has been made under subsection (12),
the Municipal Board has approved one or both, 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 Erie Shores Wind Farm Limited Partnership, acting as agent for
Underhill Farms Ltd, has applied to the Municipality of Bayham for site plan approval
under the Planning Act, R.S.O. 1990, Chapter P.13, as amended.
AND WHEREAS the Council of the Corporation of the Municipality of Bayham now
deems it necessary to enter into a site plan agreement with Underhill Farms Ltd.
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 Underhill Farms Ltd, attached hereto as Schedule "A" and forming
part of this by-law.
2. THAT this By-law and executed agreement shall be registered in the Land
Registry Office for the Registry Division of Elgin(No. 11).
READ A FIRST AND SECOND TIME this 20th day of October,2005.
READ A THIRD TIME AND FINALLY PASSED this 20th day of October,2005.
MAZW ) -01-1LJ
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'. Ontario Form 4—Land Registration Reform Act
(1)Registry Q Land Titles ❑ (2) Page 1 of 12 pages
(3)Property Block Property Additional:
Identifier(s) ❑
See
Schedule
C J (4)Nature of Document
r— SITE PLAN AGREEMENT
(5)Consideration
(c • - Doilars$
cn y i (6)Description
UJ CD r"{ North Half of Lot 5, Concession 1,
LT Geographic Township of Bayham,
Municipality of Bayham, County of Elgin;
o
- EXCEPT PART 1 on Plan D-815 and
._ PART 7 on Plan D-814.
New Property Identifiers
Additional:
See ❑Schedule
Executions
(7) This (a)Redescription (b)Schedule for:
Additional: Document New EasementAdditional
See Contains: II�
Schedule ❑ Plan/Sketch LJ Description ❑X Parties ❑ Other III
(8)This Document provides as follows:
SITE PLAN AGREEMENT between UNDERHILL FARMS LTD. and ERIE SHORES WIND FARM GENERAL
PARTNER INC.AS TRUSTEE FOR ERIE SHORES WIND FARM GERNEAL PARTNER TRUST AS GENERAL OF THE
ERIE SHORES WIND FARM LIMITED PARTNERSHIP and THE CORPORATION OF THE MUNICIPALITY OF
BAYHAM.
Continued on Schedule LJ
(9)This Document relates to instrument number(s)
(10)Party(ies) (Set out Status or Interest)
Name(s) Signatur- Date of Signature
Y M D
THE CORPORATION OF THE MUNICIPALITY OF BAYHAM
�
BY ITS SOLICITORS, GIBBON,LINTON,TOTH, per: , 2007 04 I
CAMPBELL&BENNETT SCOTT K. AMPBELL
(11) Address
for Service P. O. Box 160, Straffordville, Ontario,NOJ 1Y0
(12)Party(ies) (Set out Status or Interest)
Name(s) Signature(s) Date of Signature
Y M D
(13) Address
for Service
(14)Municipal Address of Property (15)Document Prepared by: >- Fees and Tax
p Registration Fee
Gibson,Linton,Toth, Campbell & w .
Not Assigned Bennett D
36 Broadway,Box 5 Lu
Tillsonburg, Ontario ±
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Document prepared using Form'L'Ware LandForms
02
SITE PLAN AGREEMENT
BETWEEN
UNDER13ILL FARMS LTD
AND
ERIE SHORES WIND FARM GENERAL PARTNER INC., AS TRUSTEE
FOR ERIE SHORES WIND FARM GENERAL PARTNER TRUST AS
GENERAL PARTNER OF THE ERIE SHORES WIND FARM LIMITED
PARTNERSHIP
AND
THE CORPORATION OF THE MUNICIPALITY OF BAYHAM
Part Lot 5, Concession 1
THIS AGREEMENT made this 15th day of February 2006.
BETWEEN:
UNDERHILL FARMS LTD, AND ERIE SHORES WIND FARM GENERAL
PARTNER INC., AS TRUSTEE FOR ERIE SHORES WIND FARM GENERAL
PARTNER TRUST AS GENERAL PARTNER OF THE ERIE SHORES WIND
FARM LIMITED PARTNERSHIP
Hereinafter called the"OWNER"
OF THE FIRST PART
-AND-
THE CORPORATION OF THE
MUNICIPALITY OF BAYHAM
Hereinafter called the"MUNICIPALITY"
OF THE SECOND PART
WHEREAS the Owner is the owner in fee simple and the owner of an easement in gross of the
lands situate in the Municipality of Bayham, in the County of Elgin being Part of Lot 5,
Concession 1,more particularly described in Schedule"A"attached hereto(and hereafter referred
to as the"Lands");
AND WHEREAS the Official Plan of the Municipality of Bayham in effect, designates the
entirety of the Municipality as a site plan control area;
AND WHEREAS the Owner intends to develop the lands in accordance with the Site Plan
attached hereto,as> echste W'(and hereafter referred to as the"Plan");
Exhibit "A" and "A-1"
AND WHEREAS the Municipality, as a condition of development of the lands requires the
Owner to enter into a Development Agreement;
NOW THEREFORE in consideration of other good and valuable consideration and the sum of
Two Dollars($2.00) of lawful money of Canada by each to the other paid(the receipt whereof is
acknowledged by each), the Owner hereby covenants and agrees with the Municipality as
follows:
1. The Owner agrees that no building permit will be available until the Plan has been
approved by the Municipality, and further agrees that work will not commence prior to
the issuance of the building permit.
2. The following Schedules, which are identified by the signatures of the parties to this
Agreement, and which are attached hereto, are hereby made a part of this Agreement, as
fully and to all intents and purposes as though recited in full herein:
EXHIBIT"A"and"A-1"-SITE PLAN
EXHIBIT"B"-CERTIFICATE OF COMPLIANCE
3. Schedule"A"hereto describes the lands affected by this Agreement.
1
4. Exhibit"A"and"A-1" -Site Plan, shows:
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 shows the lighting including
flood lighting, of the land or any building or structure thereon;
f) the location and provision for the collection and storage of garbage and other waste
material;
g) 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)
5. The Owner agrees that the building or buildings will be erected in accordance with the plan(s)
approved, subject only to such changes as have received advance approval.
6. The Owner agrees that the site development and servicing will be in accordance with the plan(s)
as approved, subject only to such changes as have received advance approval.
7. The Owner further agrees that:
a) final grades and elevations, and any culvert installations, 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 the final
release of the Letter of Credit.
b) all necessary provisions for service connections on site will be made to the satisfaction of
the Municipality.
c) construction work will be carried forward expeditiously in good and workmanlike
manner, in accordance with good trade practice and so to cause a minimum of nuisance.
d) all necessary precautions to avoid dust, noise and other nuisance and to provide for the
public safety will, so far as possible, be taken and which comply with The Construction
Safety Act.
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.
f) garbage disposal facilities will be an enclosed type located as shown on the Site Plan
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 property limits.
h) no topsoil shall be stockpiled on any other portion of the Owner's lands except those
lands identified in Schedule"A"to this agreement; and all topsoil shall be stockpiled and
maintained in a manner which allows for the maintenance of weeds; and the Municipality
may go in and do the same at the Owner's expense, and collect the cost in like manner
either as municipal taxes or from the Letter of Credit deposited as performance security.
i) stock piling of snow will not be allowed on the site where it will constitute a hazard in
the opinion of the Municipality.
j) the electrical servicing of the property shall be subject to the approval of Hydro One.
k) upon failure by the Owner to do any act during the development period herein, that the
public safety or convenience requires,in accordance with this Agreement,upon seven(7)
days written notice,the Municipality, in addition to any other remedy, may go in and do
same at the Owner's expense, and collect the cost in like manner either as municipal
taxes or from the Letter of Credit deposited as performance security.
1) the Municipality may treat any breach of this Agreement as a breach of the Building By-
Law, and upon twenty-four (24) hours written notice to the Owner, stop work until the
breach is rectified.
m) nothing in this Agreement constitutes waiver of the owner's duty to comply with any by-
law of the Municipality or any other law.
8. The Owner shall:
a) be responsible for consulting with Hydro One regarding any matters that relate to
services provided by Hydro One.
9. The Owner shall be responsible for consulting with and obtaining any necessary approval from all
regulatory bodies such as, but not limited to, the Long Point Region Conservation Authority and
the Ministry of the Environment.
10. The Owner shall satisfy all the requirements in relation to the fire protection for the building(s) to
the satisfaction of the Municipality's Fire Chief.
11. The Owner agrees to pay for damages to public property including but not limited to municipal
drain, ditches, street surfaces, storm and sanitary sewer systems, which may occur during the
period of construction. Any such repair may be undertaken by the Municipality at the expense of
the Owner,within thirty(30)days notice.
12. Any and all lighting shall be installed and maintained so as to not, in the opinion of the
Municipality, interfere with the use or enjoyment of adjacent properties, or with the safe flow of
traffic on abutting or adjacent streets.
13. The Owner shall landscape and maintain plants and ground cover acceptable to the Municipality,
on those lands so indicated on the Site Plan.
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 extension,provided for in this Agreement,
the Owner shall not occupy or use or permit to be occupied or used, any said new building or
extension,until after an Architect or Professional Engineer has given to the Municipality, a letter
addressed to the Municipality, and signed by the said Architect or Professional Engineer,
certifying that all construction and/or services on or in the said lands, required for this
development or redevelopment, newly installed by the Owner in connection with this
development or redevelopment,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 it's Chief Building Official,
Fire Chief, and Municipal Engineer, may, from time to time, and at any time, enter on the
premises of the Owner to inspect:
a) the progress of development;
b) the state of maintenance as provided for in this Agreement.
16. In the event of any servant, officer or agent of the Municipality, determining, upon inspection,
that the development is not proceeding in the strict accord with the plans and specifications filed,
such servant,officer or agent shall forthwith,place a notice requiring all work to be stopped upon
the premises and forward a copy, by registered mail, to the Owner at the last known address, on
the last revised assessment roll,and the Owner shall forthwith correct the deficiency or deviation.
17. In the event of any servant, officer or agent of the Municipality, upon inspection, be of the
opinion that the state of maintenance is not satisfactory, such servant, officer or agent shall
forthwith, forward notice of such opinion, by registered mail, to the Owner, at the last known
address, and the Owner shall forthwith correct the deficiency or appeal 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 maintenance, such Owner shall appear before the Council of the
Municipality of Bayham, which after hearing the Owner, shall express its opinion as to whether
the maintenance is satisfactory, by resolution, which shall constitute a final determination of the
matter.
19. In the event that the Owner shall fail to obey a stop work order issued under Section 17 hereof,
the Owner recognizes the right of the Municipality to apply to the Courts for a restraining order.
20. In the event that an Owner shall fail to correct a deviation or deficiency after notice pursuant to
Section 17 or after notice of an opinion, which the Council of the Municipality of Bayham
determines is correct, under Section 17, the Council of the Municipality of Bayham, may by by-
law, direct, on default of the matter or thing being done by the Owner, after two (2) week's
notice, to it by registered mail, at the last known address of the Owner, pursuant to the last
revised assessment roll of passage of such By-Law, that such matter or thing be done by the
Municipality, at the expense of the Owner, which expense may be recoverable by action as
municipal taxes,or from the Letter of Credit deposited as performance security.
21. Unless otherwise authorized, in the event of the Owner wishing to change at any time, the
buildings, structures or facilities described n Exhibit"A"and"B", it shall make application to the
Council of the Municipality of Bayham, for approval, and shall not proceed with such change
until approval is given by such Council, or in default by The Ontario Municipal Board,under the
procedure set out in Section 41 of The Planning Act, 1990,hereinbefore referred to.
22. The Owner agrees to pay to the Municipality all administration costs incurred in connection with
this Agreement, and the fulfillment of this Agreement, including legal, engineering and
inspection costs.
23. CAPITAL CHARGES
The following capital charges are to be paid at the time that this Agreement is signed.
24. SITE PLAN REVIEW FEE
The Owner shall pay to the Municipality, in cash or by certified cheque, an amount of One
Thousand($1,000)Dollars,per application, for Site Plan Review.
25. LIABILITY INSURANCE
Before commencing any of the work provided for herein, the Owner shall supply the
Municipality with a Liability Insurance policy in the amount of$3,000,000 per occurrence,and in
a form satisfactory to the Municipality, indemnifying the Municipality from any loss arising from
claims for damages injury or otherwise, in connection with the work done by or on behalf of the
owner of the development. The said policy shall be provided at the time of the signing of the
Agreement and remain in force,until the development is complete and all required documentation
as per Article 15 has been filed with the Municipality.
26. PERFORMANCE GUARANTEE
The Owner hereby defines the completion date of this Agreement and project to be on or before
October 20, 2006. It will be the Owner's responsibility to require, in writing, an extension to this
agreement/project, within sixty (60) days of the above stated completion date, should an
extension be required.
As security for the performance and completion of all works required by this agreement, the
Owner shall supply the Municipality with a Letter of Credit, equal to $Nil. The Letter of Credit
will be based on the estimated cost of alterations to public property, roadway, curbs and gutters
and drains,and any repairs for damages to public property,roadway, curbs and gutters and drains,
plus all site specific components as defined by the Site Plan, "Exhibit A" and "A-1" which are
approved under this Agreement. The amount of the Letter of Credit shall be established by the
Municipality.The irrevocable Letter of Credit from a Chartered Bank expressed to be pursuant to
this Agreement and payable to the Municipality at any time or in part, from time to time, upon
written notice from the Municipality, shall be provided at the time of signing of this Agreement,
and shall remain in force,until Twelve(12)months following the completion of this project.
27. This Agreement and the provisions thereof, do not give 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 its obligations under this Agreement or any negligence
of the Owner in its performance of the said obligations.
28. In the event that no construction on the said lands has commenced within one (1) year from the
date of registration of this Agreement the Municipality may, at its option, on one month's notice
to the owner, declare this Agreement to be subject to re-negotiation, whereupon the Owner agrees
that it will not undertake any construction on the said lands until this Agreement has been re-
negotiated.
29. The Owner agrees that it will not call into question, directly or indirectly in any proceeding
whatsoever in law or in equity or before any administrative tribunal the right of the Municipality
to enter into this Agreement and to enforce each and every term, covenant and condition herein
contained and this Agreement may be pleaded as an estoppels against the Owner in any case.
30. The Owner agrees on behalf of themselves, their heirs, executors, administrators 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 as a result of any action taken by the Owner, pursuant to this
Agreement.
31. All facilities and matters required by this Agreement shall be provided and maintained by the
Owner at its sole risk and expense to the satisfaction of the Municipality and in accordance with
the standards determined by the Municipality and in default thereof, and without limiting other
remedies available to the Municipality, the provisions of Section 326 of The Municipal Act,
R.S.O. 1990, shall apply.
8
32. This Agreement shall be registered at the expense of the Owner, against the land to which it
applies, and the Municipality shall be entitled, subject to the provisions of The Registry Act, to
enforce its provisions against the Owner,named herein,and any and all subsequent Owners of the
land.
33. A Certification of Compliance attached hereto as Exhibit "B", shall be filed by the Owner,
following completion of the development to ensure all details of the Site Plan Agreement have
been complied with.
34. In the event that Underhill Farms Ltd. has any liability imposed upon it pursuant to the terms of
this Agreement in connection with the development of the Erie Shores Wind Farm as set out in
the plan, then Erie Shores Wind Farm General Partner Inc. as trustee for Erie Shores Wind Farm
General Partner in Trust as general partner of the Erie Shores Wind Farm Limited Partnership, its
successors and assigns, covenants and agrees to save harmless and indemnify Underhill Farms
Ltd. its successors and assigns, from any and all claims, expenses, and costs which it might in the
future become obligated to pay as a result of having entered into this Agreement.
IN WITNESS WHEREOF,the Parties hereto have hereupon, affixed their Corporate Seal,duly attested to
by their authorized signing officers in that behalf.
OWNER:
UNDERHILL FARMS LTD
1
4.-
.er: 'a it' y derhill
I have authority to bind the Corporation
ERIE SHORES WIND FARM GENERAL
PARTNER INC., AS TRUSTEE FOR ERIE
SHORES WIND FARM GENERAL PARTNER
TRUST AS GENERAL PARTNER OF THE
ERIE SHORES WIND FARM LIM1I hD
PARTNERSHIP
—wagri l2 -
Michael Kosiancic .,,,r+,- PTer�Rai �,RT
VICE PRESIDENT
I have authority to bind the Corporation
THE CORPORATION OF THE MUNICIPALITY
OF BAYHAM
,,,,,v) ti atilL-,
MAYOR nn Acre
i
CLERK Lynda Millard
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EXHIBIT"B"
THE CORPORATION OF THE MUNICIPALITY OF BAYHAM
CERTIFICATE OF COMPLIANCE
PROPERTY IDENTIFICATION:
Municipal Address:
Owner:
This document serves to certify that the development project on the above noted lands has been
completed in accordance with the terms and conditions of The Site Plan Agreement By-law No.
DATED:
I HEREBY CERTIFY THAT THE ABOVE DECLARATION IS TRUE AND CORRECT.
Witness — Signature:
Name of Owner:
Address:
Phone Number:
21 Province Do Process Software Ltd. • (416)322-6111
0/1 of Schedule
Ontario Form 5—Land Registration Reform Act 2
p�a lFd
Additional Property Identifier(s)and/or Other Information
SCHEDULE "A"
Legal Description:
North Half of Lot 5, Concession 1, Geographic Township of Bayham,Municipality of Bayham, County of Elgin;
EXCEPT PART 1 on Plan D-815 and PART 7 on Plan D-814.
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Document prepared using Form'1'Ware LandForms