HomeMy Public PortalAboutBYLAW 2015-91 CONSENT AGREEMENT_HT REAUME CONSTRUCTION LTDTHE CORPORATION OF THE TOWN OF TECUMSEH
BY-LAW NUMBER 2015-91
Being a by-law to authorize the execution of a Consent
Agreement between The Corporation of the Town of
Tecumseh and H. T. Reaume Construction Limited
WHEREAS H. T. Reaume Construction Limited (Owner), owns certain lands
situated within the corporate limits of the Town of Tecumseh (Lands);
AND WHEREAS the Committee of Adjustment for The Corporation of the Town of
Tecumseh (Town) has given conditional consent to sever the Lands in accordance
with Section 53 of The Planning Act, R.S.O. 1990, c. P. 13 and amendments thereto;
AND WHEREAS as a condition of consent the Committee of Adjustment for the
Town has required the Owner enter into a Consent Agreement in accordance with
Section 53(12) and 51(26) of the Planning Act, R.S.O. 9990, c.P.13 and
amendments thereto;
AND WHEREAS it is a further condition of consent that the Owner fulfil the terms of
the aforementioned Consent Agreement to the Town's satisfaction prior to the
issuance of final Consent;
AND WHEREAS the issuance of final Consent does not release the Owner from its
obligations to this agreement;
AND WHEREAS the Owner covenants and agrees to develop the lands in
accordance with this agreement;
AND WHEREAS the proposed development of the Lands is in accordance with the
Official Plan and Zoning By -Law of the Town as of the date of this Agreement;
NOW THEREFORE the Council of The Corporation of the Town of Tecumseh
enacts as follows:
1. THAT the Mayor and the Clerk be and they are hereby authorized and
empowered on behalf of The Corporation of the Town of Tecumseh, to
execute a Consent Agreement dated the 8t' day of December, 2015,
between The Corporation of the Town of Tecumseh and H. T. Reaume
Construction Limited, a copy of which Consent Agreement is attached hereto
and forms part of the by-law and to do such further and other acts which may
be necessary to implement the said Consent Agreement.
2. THAT this by-law shall come into force and take effect upon on the date of
the third and final reading thereof.
READ a first, second and third time and finally passed this 8t' day of December,
2015.
LRO # 12 Notice Receiipted as CES97247 on 2016 01 18 at 16:05
The applicant(s) hereby applies to the Land Registrar. yyyy mm dd Page 1 of 2
Properties
PIN 75267 - 0022 LT
Description PT LT GORE OR BROKEN FRONT CON WEST OF RIVER PECHE MAIDSTONE (ST
CLAIR BEACH) AS IN R325419, R442288; TECUMSEH
Address TECUMSEH
PIN 75267 - 0021 LT
Description PT LT GORE OR BROKEN FRONT CON WEST OF RIVER PECHE MAIDSTONE (ST
CLAIR BEACH) AS IN SC1370, R405161 EXCEPT THE EASEMENT THEREIN;
TECUMSEH
Address 112 GRANT"
TECUMSEH
Consideration
Consideration $ 1.00
Applicant(s)
The notice is based on or affects a valid and existing estate, right, Interest or equity in land
Name H.T. REAUME CONSTRUCTION LIMITED
Address for Service 367 Cyanna Court
R.R. #1
Tecumseh, ON N8N 51-111
I, David Louis Reaume, authorized signing officer, have the authority to bind the corporation.
This document is not authorized under Power of Attorney by this party.
I Party Tow Capacity Share I
Name THE CORPORATION OF THE TOWN OF TECUMSEH
Address for Service 917 Lesperance Rd.
Tecumseh, ON N8N 1W9
This document is being authorized by a municipal corporation Gary McNamara, MAYOR and Laura Moy, CLERK.
This document is not authorized under Power of Attorney by this party.
This notice is pursuant to Section 71 of the Land Titles Act.
This notice is for an indeterminate period
Schedule: See Schedules
Signed By
Debbie Ann Rainville 72 Talbot st. N, Suite 100 acting for Signed 2016 01 18
Essex Applicant(s)
N8M 1A2
Tel 519-776-4244
Fax 519-776-7277
I have the authority to sign and register the document on behalf of the Applicants).
CONSENT AGREEMENT
Between:
The Corporation of the Town of Tecumseh
-and-
H. T. Reaume Construction Limited
PREPARED BY:
WOLF HOOKER PROFESSIONAL CORPORATION
Barristers & Solicitors
72 Talbot Street North, Suite 100
Essex, Ontario
N8M 1A2
Page 1 of 19
INDEX TO ARTICLES
RECITALS
ARTICLE 1— DEFINITIONS
1.1 —Definitions
ARTICLE 2 — TOWN CONSULTANTS
2.1— Town to Retain
ARTICLE 2 — THE OWNER AGREES
3.1 — Owner Agrees
3. 1.1 Owner to Provide
3.1.2 Engineer
3.1.3 Plans and Engineering Drawings
3.1.3.1 Criteria
3.1.3.2 Preparation of Engineering Drawings
3.1.3.3 Lot Grading Plan
3.1.3.4 Reference Plan
3.1.4 — Services
3.1.4.1 Sanitary Sewers
3.1.4.2 Stormwater Management
3.1.4.3 Water Services
3.1.4.4 Electrical Services
3.1.4.5 Driveway Approaches
3.1.4.6 Private Utilities
3.1.4.7 Notifications and Permits
3.1.4.8 Co-ordination of Services
3.1.5
— Repair
3.1.6
— Dirt and Debris
3.1.7
— Maintenance of Lands
3.1.8
— Address Sign
3.1.9
— Environmental Laws
3.1.10 — Local Improvements and Drainage Act
ARTICLE 4 — TIMING
4.1 — Prior Commencement of Construction
4. 1.1 — Construction in General
4.2 — Completion
ARTICLE 5 — PAYMENTS
5.1 — Costs
5.2 — Development Charges
5.3 — Park Fees
ARTICLE 6 — CONVEYANCES
6.1 — Easements
6.2 — Roads / Road Widening
ARTICLE 7 — SECURITY
7.1 —
Performance
7.2 —
Maintenance
7.3 —
Construction Liens
7.4 —
Forms of Security
7.5 —
Indemnity and Insurance
ARTICLE 8 — DEFAULT
8.1 — Remedies
8. 1.1 Town May Complete and Use Security
8.1.2 Town May Complete and Add Costs to Tax Roll
8.1.3 Remedies Cumulative
Page 2 of 19
ARTICLE 9 — REGISTRATION AND CONSENTS
9.1— Registration and Enforcement
9.2 — Consent
9.3 — Mortgages
ARTICLE 10 —MISCELLANEOUS
10.1 — Communication
10.2 — Time of Essence
10.3 — Waiver
10.4 — Further Assurances
10.5 — Headings
10.6 — Successors and Assigns
10.7 — Gender
10.8 — Severability
10.9 — Entire Agreement
10.10 — Execution in Counterparts
10.11— Jurisdiction
10.12 — Assignment
10.13 — True Copy
10.14 — Schedules
10.15 — Contra Proferentem Rule Not Applicable
10.16 — Independent Legal Advice
SCHEDULES
Schedule "A" — The Lands
Schedule `B" — Approved Engineering Drawings
Schedule "C" — Form of Letter of Credit
Schedule "D" — Special Works
Page 3 of 19
CONSENT AGREEMENT
THIS AGREEMENT made in triplicate this day of , 20 / ?
BETWEEN:
THE CORPORATION OF THE TOWN OF TECUMSEH
hereinafter called the "Municipality" or "Town"
OF THE FIRST PART
-and-
H. T. REAUME CONSTRUCTION LIMITED
hereinafter called the "Owner"
OF THE SECOND PART
HEREINAFTER collectively referred to as the "Parties"
RECITALS
WHEREAS the Owner, owns certain lands situated within the corporate limits of the
Town, said lands being more particularly described in Schedule "A" hereto (the "Lands");
AND WHEREAS the Committee of Adjustment for the Town has given conditional
consent to sever the Lands in accordance with Section 53 of The Planning Act, R.S.O. 1990,
c.P.13 and amendments thereto;
AND WHEREAS as a condition of consent the Committee of Adjustment for the Town
has required the Owner enter into a Consent Agreement in accordance with Section 53(12) and
51(26) of the Planning Act, R.S.O. 1990, c.P.13 and amendments thereto;
AND WHEREAS it is a further condition of consent that the Owner fulfil the terms of
the aforementioned Consent Agreement to the Town's satisfaction prior to the issuance of final
Consent;
AND WHEREAS the issuance of final Consent does not release the Owner from its
obligations to this agreement;
AND WHEREAS the Owner covenants and agrees to develop the lands in accordance
with this agreement;
AND WHEREAS the proposed development of the Lands is in accordance with the
Official Plan and Zoning By -Law of the Town as of the date of this Agreement;
WITNESSETH that inconsideration of these presents, and other good and valuable
consideration, the Parties hereto mutually covenant, promise and agree as follows:
ARTICLE 1
DEFINITIONS
1.1 DEFINITIONS
The following terms and expressions when used in this Agreement and the Schedules attached
hereto and any amendments to this Agreement and such Schedules shall have the following
meanings:
Agreement shall mean this Agreement, the Schedules and figures attached thereto by original,
copy or reduced copy, the Design Information and any amendment thereto;
Page 4 of 19
Business Day shall mean any day, other than a Saturday, Sunday or any other day on which the
principal chartered banks located in the Town are not open for business during normal banking
hours.
Consulting Engineer means the professional engineer retained under Section 3.1.2 of this
Agreement.
Lands shall mean those lands described on Schedule A to this Agreement.
Municipal Services shall mean those Services integrated into the Town's municipal services
located on municipally owned land or municipal rights of ways and other municipal easements
and designated by the Town,at the Towns sole discretion, for assumption by the Town in
accordance with the terms of this Agreement.
Provide and/or Provision shall mean and include, in respect of Services, an obligation to install,
repair, maintain, operate and/or decommission a Service at the expense of the Owner.
Relevant Authority(ies) means a public authority (other than the Town) or a public or private
utility that has mandate or authority by statute, regulation or other such legal authority to regulate
or provide a Service.
Schedules shall mean the schedules attached hereto by original, copy or reduced copy and
forming part of this Agreement;
Services shall mean all municipal and other Works, or services called for under this Agreement
including, without limitation, all appurtenances, devices, equipment, Works, matters or things
necessary or incidental thereto, including, where applicable, roadways, pathways, sidewalks,
curbs, gutters, storm sewers, storm -water management facilities, water services, fire hydrants,
sanitary sewers, swales, electrical distribution works, noise barriers, trees, sod, seeding,
streetlights and natural gas mains. The above services shall include, without limiting the
generality of the foregoing, pipes, conduits, chambers, manholes, Works, plants and machinery
of every nature and kind, installations, materials, devices, fittings and equipment. Without
limiting the generality of the foregoing, services shall include but not be limited to domestic
utilities and telecommunication services provided by parties such as Hydro One, Essex Power
Corporation, Bell Canada, Union Gas Limited and Cogeco Cable Systems Inc., their servants,
agents, successors and assigns;
Works shall mean the construction, installation, or alteration of land, equipment, facilities,
structures, fixtures, systems or any other thing under this Agreement, and includes the end
product of such construction, installation, or alteration.
ARTICLE 2
TOWN CONSULTANTS
2.1 TOWN TO RETAIN
In addition to persons in the employ of the Town, the Town shall retain the following
professionals:
a) a consulting/professional civil engineer registered with the Professional Engineers of
Ontario (the "Town's Engineer"), for the purpose of reviewing all plans,
specifications, engineering documents, contracts, details, elevations and other
relevant information as well as the occasional inspection of the construction, repair
and maintenance of the Services;
b) the Town's solicitor for the purpose of reviewing all necessary legal matters
incidental to the development of the Lands, including, without limiting generality, the
preparation of this Agreement together with all other documentation required by the
Town to give effect to this Agreement and/or the development of the Lands;
Page 5 of 19
No duty of care to the Owner shall arise on the part of the Town, the Town's Engineer, or the
Town's solicitor from conducting any review contemplated in this Agreement.
ARTICLE 3
THE OWNER AGREES
3.1 OWNER AGREES
The Owners jointly and severally make the following covenants, all of which shall be carried out
at the Owners' expense:
3. 1.1 Owner to Provide
The facilities, Works or matters set out in Schedule "B" (the Approved Engineering Drawings),
the Special Works set out in Schedule "D", and the facilities, Works or matters otherwise
required by this agreement, shall be provided by the Owner to the satisfaction of the Town and
its Engineer and at no expense to the Town, and in accordance with all the applicable provisions
of this Agreement, the Town's By -Laws and the Town's Official Plan.
3.1.2 En ig neer
The Owner shall retain, at the Owner's expense, a Consulting Engineer registered with
Professional Engineers Ontario to design the Services, oversee the installation of the Services and
to attend to all matters and things required by this Agreement as a prerequisite for the assumption of
the Municipal Services. The Engineer's responsibilities shall include but not be limited to the:
a) Design and submit drawings with respect to all services required;
b) Prepare, to the satisfaction of the Town Engineer, any contracts necessary for the
construction of all the Services;
c) Provision of contract administration and full-time inspection services;
d) Submit to the Town (and all other authorities having jurisdiction) "as -built" details and
elevations and such reports as are customarily requested by the Town or the Town's
Engineer;
e) During the course of construction of the Services, take preconstruction photos as well as
photos during the course of construction of the Services. These photographs shall be
available for inspection by the Town until the end of the Maintenance Period and final
assumption of the services by the Town;
f) Confirmation of the competency of the subsurface soil conditions for the Services by way
of a geotechnical report;
g) Coordination, scheduling and chairing of site meetings and preparation and distribution
of meeting minutes;
h) Assisting the Owner who shall obtain and provide to the Town any and all reports,
permits or approvals from any Relevant Authority.
3.1.3 Plans and Enizineering Drawings
3.1.3.1 Criteria
All plans and, construction, installation, facilities and Works shall be completed in accordance
with:
a) Sound engineering practice;
b) The criteria laid down by Relevant Authorities including without limiting the generality
of the foregoing the Town, The Corporation of the County of Essex, the Essex Power
Corporation and/or Hydro One, the Ministry of the Environment, the Ministry of
Transportation and the Essex Region Conservation Authority (ERCA);
c) The standards contained in the Ontario Provincial Standards Specifications (OPSS);
d) The standards in effect as of the date of execution of this agreement;
e) Where any standards differ with those in the Town's Development Manual, the most
onerous of the applicable standards shall govern;
f} Such further criteria as may be approved by Council for the Town.
Page 6 of 19
The Parties agree that approval by the Town's Engineer of any plans and/or Works does not
represent agreement on behalf of the Town that such documents, items, or Works so approved by
the Town's Engineer are in compliance with the criteria set out herein.
3.1.3.2 Preparation of Engineering Drawings
The Owner shall, at its own expense;
a) cause to be prepared engineering drawings delineating all Services (herein `Engineering
Drawings'), which plans shall be subject to the approval of the Town.
b) provide to the Town copies of the Engineering Drawings as may be requested or required
by the Town.
It is hereby acknowledged that the Engineering Drawings have been prepared and approved by
the Town and have been signed by the parties. The originals are on file with the Town and a
reduced copy is annexed as Schedule "B".
3.1.3.3 Lot Grading Plan
The Engineering Drawings shall include a lot grading plan covering the subject lands. The
Owner also agrees to have the approved elevation as per the lot grading plan verified by an
Ontario Land Surveyor at the following stages of construction:
(a) Prior to the pouring of footings (top of forms elevation); and
(b) Following completion of construction;
Where the finished grade of lot deviates from the original lot grading plan presented to and
accepted by the Town, the Owner shall at the discretion of Town's Chief Building Official either
submit a new lot plan to the satisfaction of the Town's Chief Building Official or regrade the
lands to the elevations indicated on the original lot grading plan.
3.1.3.4 Reference Plan
The Owner, at the Owner's expense, shall engage a registered Ontario Land Surveyor to prepare,
submit and register a reference plan, which must delineate the entire plan for the conveyance of
the Lands as approved by the Town. The Owner, at the Owner's expense, shall provide (2)
copies and (1) diskette of the reference plan. All files are to be projected to North American
Datum (NAD 83) UTM Zone 17 Geographic Coordinate System. The Owner at the Owner's
expense shall provide additional copies of the reference plan in the required format upon the
request of the Town.
3.1.4 Services
3.1.4.1 Sanitary Sewers
An individual sanitary service shall be provided to each lot from the existing sewer. The
construction of the sanitary services shall be in accordance with the terms and specifications set
out in the Approved Engineering Drawings and to the satisfaction of the Town.
3.1.4.2 Stormwater Management
The Owner shall design and construct a storm water drainage system for the Lands to the
satisfaction of the Town in order to properly drain the Lands, and to not adversely impact
adjacent properties. Roof Water Leaders shall be discharged onto the ground of each lot. The
Owner shall install rear yard drainage on each building lot in the location shown on the
Approved Engineering Drawings and according to the specifications prescribed by the Town.
The Owner shall ensure that all existing farmland drainage file that may be intercepted are
removed and rerouted to the Town's satisfaction.
3.1.4.3 Water Services
An individual water service shall be provided to each lot from the existing water -main on
Oldcastle Road. The construction of the water service shall be in accordance with the terms and
specifications set out in the Approved Engineering Drawings and to the satisfaction of the Town.
Remote registry water meters shall be installed to the satisfaction of the Town.
3.1.4.4 Electrical Services
The Owner shall supply, construct or install hydro services in the manner, and location approved
by the Town and Essex Power Corporation and/or Hydro One. All work shall be performed to
the satisfaction of the Town and Essex Power Corporation and/or Hydro One. The Owner shall
pay such costs as the Essex Power Corporation and/or Hydro One may require with respect to the
Page 7 of 19
installation of electric services. Without limiting the generality of the foregoing, all costs of
connecting lines to external services shall be at the Owner's expense.
3.1.4.5 Driveway Approaches
The Owner hereby agrees to construct concrete or asphalt driveway approaches for each lot, to
the satisfaction of the Town.
3.1.4.6 Private Utilities
The Owner shall ensure that all Bell Canada, Cogeco Cable Solution, and Union Gas Company
and other private utilities are installed and are underground. The locations of the telephone cable,
gas services, and other private utilities shall be to the satisfaction of the Town.
3.1.4.7 Notification and Permits
The Owner hereby agrees to notify all Relevant Authorities having jurisdiction as to its proposed
development, and to obtain all necessary permits and/or approyals which may be required from
any authority having jurisdiction with respect thereto.
3.1.4.8 Co-ordination of Services
The Owner shall be responsible for co-ordinating the installation of all facilities and Works
including without limitation the services to be installed by Bell Canada and Union Gas
Company. The Town will send to the Owner's engineer all plans of installations received from
time to time from Bell Canada and Union Gas Company.
3.1.5 Reyair
The Owner agrees that any Municipal property, including without limiting the generality of
the foregoing, curbs, gutters, pavements, sidewalks, or landscaped areas on the public highway,
and any property belonging to a third parry, which are damaged during construction or
otherwise, shall be restored by the Owner at its expense, and to the satisfaction of the Town.
3.1.6 Dirt and Debris
The Owner further agrees to keep the public highways adjacent to the subject lands free from dirt
and debris caused by the construction of the subject lands.
3.1.7 Maintenance of Lands
The Owner shall maintain all unsold building lots in accordance with the Town's Maintenance
and other By-laws in force from time to time.
3.1.8 Address Sign
Municipal street numbers shall be established by the Town's Chief Building Official before any
building permit is released. Any purchaser of a building or lot shall be bound by the municipal
street number approved by the Town. The municipal address of the building shall be provided in
a prominent location on the site and shall be designed to be easily readable from the adjacent
street(s).
3.1.9 Environmental Laws
The Owner shall at all times in connection with the development and the implementation of this
agreement comply fully with all environmental laws.
3.1.10 Local Improvements and Drainage
The Owner agrees to sign Local Improvement petitions for, and agrees not to oppose, any
municipal services proposed by the Town to be constructed pursuant to the provisions of the
Municipal Act, 2001, S.Q., 2001, c.25, or the Drainage Act, R.S.O. 1990 c.D.17 and
amendments thereto, which shall directly or indirectly benefit the lands.
The Owner shall have no recourse to the above referenced Acts (or any other Act) for the
purpose of cost sharing the Works required by this Agreement.
Page 8 of 19
ARTICLE 4
TIMING
4.1 PRIOR TO COMMENCEMENT OF CONSTRUCTION
4. 1.1 Construction in General
No construction whatsoever shall be commenced until the following have been complete:
a) Workers' Compensation Board Clearance Certificate issued;
b) Security for performance is posted pursuant to Paragraph 7.1;
c) Construction lien deposit pursuant to Paragraph 7.3 has been received;
d) Proof of Insurance is provided pursuant to Paragraph 7.5;
e) Due registration against the title of the land of this Agreement;
1} Postponement to this Agreement by all encumbrances;
g) The Owner has complied with paragraph 3.1.4.7.
4.2 COMPLETION
The Owner agrees to fulfill all of the covenants set out herein to the satisfaction of the Town
within ONE (1) year of the date that notice of the granting of Provisional Consent has been
issued by the Secretary of the Committee of Adjustment.
ARTICLE 5
PAYMENTS
5.1 COSTS
The Owner shall reimburse the Town for all the Town's costs with respect to the development,
including without limiting the generality of the foregoing, the fees and disbursements of its
Engineer, and solicitor. The Town shall deliver invoices to the owner in a timely fashion
payment for which shall be due immediately.
5.2 DEVELOPMENT CHARGES
The Owner agrees to pay development charges with respect to the development in accordance
with the Town's Development Charges By -Law.
5.3 Park Fees
The Owner shall pay park fees called for in accordance with the provisions of the Planning Act,
R.S.O. 1990, c.P.13, hereby established to be $750.00 per lot.
ARTICLE 6
CONVEYANCES
6.1 EASEMENTS
The Owner shall convey or dedicate to the Town upon demand and without cost and free of
encumbrance the easements provided for in the Approved Engineering Drawings and/or
Reference Plan, in, through, over and under the subject lands as required for drainage purposes,
sewers, hydro, gas, watermains, telephones etc.. If the Town determines that additional
easements are required, the Owner shall also convey or dedicate such additional easements upon
demand and without cost and free of encumbrance.
6.2 ROADS / ROAD WIDENING
If the Town determines that additional lands are required for roads and/or road widening, the
Owner shall also convey or dedicate such additional lands for roads and/or road widening upon
demand and without cost and free of encumbrance.
Page 9 of 19
ARTICLE 7
SECURITY
7.1 PERFORMANCE
The Owner agrees, to deposit with the Town security as follows:
a) Forthwith upon execution of this Agreement, that the Owner shall, so as to assure the
performance by the Owner of each of the terms and conditions of this Agreement during the
development of the Lands, deposit with the Town security in an amount which is equal to
fifty percent (50%) of the value of the Works to be done on Town road allowances required
by this Agreement (the "Performance Security")
b) Upon application for a building permit for a home a further sum of two thousand dollars
($2,000.00) per lot shall be deposited in order to assure the construction of rear yard drainage
and driveway approaches for said lot (the "Yard Drainage and Driveway Security"). The
Town agrees to return the Yard Drainage and Driveway Security to the Owner upon the
completion to the satisfaction of the Town, and final inspection, of the rear yard drainage and
driveway approaches for each said lot. Provided that in no event shall the Town be required
to pay interest on this security.
7.2 MAINTENANCE
The Town agrees to return the said Performance Security to the Owner upon the completion and
final inspection of the Works specified in this Agreement, on condition that the Owner
concurrently provide the Town with either cash or a Letter of Credit, as set out above, in form
satisfactory to the Town's Clerk and solicitor, and in an amount equal to one-half of the amount
of the security above which applied to work • on municipal lands or services to guarantee
performance, and to guarantee that any and all of the Works referred to in this Agreement will be
maintained to the satisfaction of the Town. The said security guaranteeing maintenance shall be
returned to the Owner at the end of ONE (1) year from the date of its delivery provided the
Owner has maintained the Works to the satisfaction of the Town as aforesaid. Provided that in no
event shall the Town be required to pay interest on this security.
7.3 CONSTRUCTION LIENS
In as much as the Owner is obligated at the Owner's entire expense and not at the expense of the
Town, to make improvements to the municipal infrastructure, the Owner shall deposit with the
Town, in order to satisfy the requirements of Section 17(4) of the Construction Lien Act,
R.S.O. 1990, c.C.30 and amendments thereto, cash or a letter of credit in form satisfactory to the
Town and its solicitor and in an amount of the holdbacks (under Part 1V of the Construction Lien
Act, R.S.O. 1990, c.C.30 and amendments thereto) that would have been required were the
improvements made at the expense of the Town.
The Owner may, at its option, obtain a single letter of credit with respect to its responsibilities
pursuant to Paragraph 7.1 of this Article and this paragraph, provided that the amount so
provided equals the total of the amounts required under both paragraphs and provided that the
Town and its solicitor are satisfied that the Town's security under each paragraph, if read
separately, would not be compromised by the Letter of Credit proposed by the Owner. Provided
that in no event shall the Town be required to pay interest on this security.
7.4 FORMS OF SECURITY
Where security is required by this agreement it shall be either by way of
a) cash, or
b) a Standby Letter of Credit pursuant to UCP500 only, issued by a chartered bank of Canada
or Credit Union registered pursuant to the provisions of the Credit Union and Caisses Populaires
Act, Ontario on its letterhead in form satisfactory to the Town's Clerk and solicitor (not a
Letter of Guarantee or Bond).
Provided that in no event shall the Town be required to pay interest on this security.
Page 10 of 19
7.5 INDEMNITY AND INSURANCE
The Owner shall indemnify and save harmless the Town, the Corporation of the County of Essex
the Essex Power Corporation, and Hydro One, and their respective agents and employees from
and against all actions, claims, loss; damage and liability connected with the development as
contemplated herein arising directly or indirectly out of the negligence or unlawful performance
or the non-performance of any obligation of the Owner or any contractors to the Owner under the
Agreement.
While any of the facilities and Works herein have not been accepted or assumed by the Town,
the Owner and/or their Contractor(s) shall maintain in fall force and effect a policy of personal
liability and property damage insurance in form and amount satisfactory to the Town's solicitor
wherein the Owner and any of the Owner's Contractors, the Town, The Corporaiton of the
County of Essex, The Essex Power Corporation, and Hydro One, , shall be insured as principals
against such liability to a minimum of TWO MILLION ($2,000,000,00) DOLLARS per
occurrence. The Owner shall provide the Town with a certified copy of such policy prior to the
commencement of construction of any of the facilities and Works referred to herein.
ARTICLE 8
DEFAULT
8.1 REMEDIES
If the Owner shall fail in the performance of any of the terms and conditions of this Agreement
during the construction of the Services then in addition to any other remedies it may have, the
Town shall be entitled to any or all of the remedies below.
8. 1.1 Town May Complete and Use Security
In the event that the Owner fails to observe, perform or fulfil any of the terms and conditions of
this Agreement or neglects, in the opinion of the Town, to proceed with reasonable speed in the
construction of the work or services contemplated herein or in the event that the work and
Services are not constructed or located in the manner provided for in the engineering drawings
or in accordance with the plans and specifications approved by the Town, then upon the Town
giving SEVEN (7) days notice to the Owner with respect thereto specifying such defayilt, and in
the event that the Owner has not within SEVEN (7) days of the receipt of such notice
commenced the correction of such default and proceeded with due diligence to the completion of
the correction of such default, the Town may, at its sole option, without further notice enter upon
the Lands and proceed to supply all materials and do all necessary work (including the repair or
re -construction of faulty work and the replacement of materials not in accordance with the
specifications or the drawings) and to charge all costs including the requisite fees for any
engineering and administration to the Owner and pay any expenses incurred from the Security so
held by the Town. The Owner hereby authorizes the Town (including, without limiting the
generality of the foregoing, its employees, agents and servants) to enter upon the Lands to do any
such matter or thing.
8.1.2 Town May Com lete and Add Costs to Tax Roll
The Owner acknowledges that a by-law has been passed by the Town approving the entering into
of this Agreement by the Town and incorporating the terms of this Agreement into that bylaw,
and further that section 446 of The Municipal Act, 2001, S.O. 2001, c.25 and amendments
thereto, applies to all requirements of this Agreement. If the Owner neglects to undertake any
matter or thing required to be done by this Agreement and such default continues after SEVEN
(7) days of the Owner being given written notice by the Town of such default, the Town may
direct that such matter or thing shall be done or completed at the expense of the Owner, and the
Town may recover the costs incurred in doing it, by action or by adding such costs to the tax roll
and collecting them in the same manner as taxes. The Owner hereby authorizes the Town
(including, without limiting the generality of the foregoing, its employees, agents and servants)
to enter upon the Lands to do any such matter or thing.
Page 11 of 19
1.
ii.
8.1.3 Remedies Cumulative
The remedies set out in this Agreement are cumulative and the Town may enforce one or more
of the remedies set forth herein at any time or times, and from time to time, during the life of this
Agreement.
ARTICLE 9
REGISTRATIONAND CONSENTS
9.1 REGISTRATION AND ENFORCEMENT
Pursuant to Section 51(26) of the said Planning Act, R.S.O. 1990, c.P.13 and amendments
thereto, this Agreement shall be registered against the Lands to which it applies, as a first charge,
at the Owner's expense, and the Town is entitled to enforce the provisions hereof against the
Owners, who shall be jointly and severally liable for the Owners' covenants and obligations
outlined herein, and, subject to the provisions of The Registry Act, R.S.O. 1990, c.R.20 and
amendments thereto, and the Land Titles Act, R.S.O. 1990, c.L.5 and amendments thereto,
against any and all subsequent owners of the Lands. The Parties agree that the Town may, in
registering this Agreement, provide reduced copies of the Schedules or remove the Schedules
entirely if required by the Land Registry Office in order to effect registration of the Agreement,
but such reduction or removal of the Schedules shall not affect the validity of this Agreement or
the continued application of the Schedules thereof.
The Owner covenants and agrees with the Town to provide the Town with the following, prior to
the registration of this Agreement:
a legal description in a form capable of being registered in the Land Registry Office at
Windsor, Ontario or the Land Titles Office at Windsor, Ontario, covering all of the property
to which this Agreement applies; and
a solicitor's opinion prepared by the solicitor of the Owner or, at the sole option of the Town,
the Town's solicitor, expressing an opinion to the Town that the legal description contained in
this Agreement encompasses all of the Lands to which this Agreement applies, and that the
said Lands are owned by the Owner in fee simple, with good and marketable title free and
clear of all encumbrances, subject only to municipal, provincial and federal by-laws affecting
the subject Lands.
9.2 CONSENT
The Owner hereby consents to the registration of this Agreement on the title of the Lands, said
registration (as well as the preparation of this Agreement) to be at the Owner's expense.
9.3 MORTGAGEES
The Owner agrees to obtain a postponement of any mortgages or other encumbrances which may
affect the Lands.
10.1 COMMUNICATION
ARTICLE IO
MISCELLANEOUS
Subject to the express provisions of this Agreement, all communications provided for or
permitted hereunder shall be in writing, personally delivered to an officer of the addressee or sent
by registered and receipted mail, charges prepaid, or by facsimile transmission or other means of
recorded telecommunication, charges prepaid, to the applicable address set forth below or to
such other address as either party hereto may from time to time designate to the other in such
manner.
Communications sent to the Town shall be addressed to:
9171 Lesperance Road, Tecumseh, Ontario N8N 1 W9
Page 12 of 19
Communications sent to the Owner shall be addressed to:
367 Cyanna Court, RRi, Tecumseh, Ontario N8N 5H1
Any communication so personally delivered shall be deemed to have been validly and effectively
given on the date of such delivery. Communications so sent by registered and receipted mail
shall be deemed to have been validly and effectively given on the Business Day next following
the day on which it is received, as evidenced by the postal receipt. Communications so sent by
facsimile transmission or other means of recorded telecommunication shall be deemed to have
been validly and effectively given on the Business Day next following the day on which it is
sent. Any party may from time to time change his or its address for service on written notice to
the others.
10.2 TIME OF ESSENCE
Time shall be of the essence of this Agreement and of every part thereof.
10.3 WAIVER
No waiver by any part of a breach of any of the covenants, conditions and provisions herein
contained shall be effective or binding upon such party unless the same shall be expressed in
writing and any waiver so expressed shall not limit or affect such party's rights with respect to
any other future breach.
10.4 FURTHER ASSURANCES
Each of the Parties covenants and agrees that he, his heirs, executors, administrators and assigns
will sign such further agreements, assurances, waivers and documents, attend such meetings,
enact such by-laws or pass such resolutions and exercise such votes and influence, do and
perform or cause to be done and performed such further and other acts and things as may be
necessary or desirable from time to time in order to give full effect to this Agreement and every
part thereof.
10.5 HEADINGS
The headings of the Articles of this Agreement are inserted for convenience only and do not
constitute part of this Agreement.
10.6 SUCCESSORS AND ASSIGNS
The covenants hereunder shall run with the land and this Agreement shall be binding upon and
enure to the benefit of the parties hereto and their respective heirs, executors, administrators,
successors and assigns.
10.7 GENDER
All words and personal pronouns relating thereto shall be read and construed as the number and
gender of the party or parties referred to in each case require and the verb shall be construed as
agreeing with the required word and pronoun.
10.8 SEVERABILITY
If any covenant or provision contained herein is determined to be in whole or in part, invalid or
unenforceable by reason of any rule of law or public policy, such invalidity or unenforceability
shall not affect the validity or enforceability of any other covenant or provision contained herein
and, in the case of partial invalidity or unenforceability of a covenant or provision, such partial
invalidity or unenforceability shall not affect the validity or enforceability of the remainder of
such covenant or provision, and such invalid or unenforceable covenant or provision or portion
thereof, as the case may be, shall be severable from the remainder of this Agreement.
10.9 ENTIRE AGREEMENT
This Agreement expresses the final agreement among the parties hereto with respect to all
Page 13 of 19
matters herein and no representations, inducements, promises or agreements or otherwise among
the parties not embodied herein shall be of any force and effect. This Agreement shall not be
altered, amended or qualified except by a memorandum in writing, signed by all the parties
hereto, and any alteration, amendment or qualification thereof shall be null and void and shall
not be binding upon any such party unless made and recorded as aforesaid.
10.10 EXECUTION IN COUNTERPARTS
This Agreement may be executed in one or more counterparts, each of which when so executed
shall be deemed to be an original and all of which together shall constitute one and the same
instrument.
10.11 JURISDICTION
This Agreement and all other agreements, security and documents to be delivered in connection
with this Agreement shall be governed by and construed in accordance with the applicable laws
of the Province of Ontario and of Canada
10.12 ASSIGNMENT
Subject to the terms of this Agreement, this Agreement is not assignable by the owner prior to
completion of the Works without the consent of the Town.
10.13 TRUE COPY
All of the parties hereto acknowledge having received a true copy of this document.
10.14 SCHEDULES
The Schedule marked as Schedule "B" has been signed by the parties and is on file with the
Town. A reduced copy of the Schedule is annexed hereto.
10.15 CONTRA PROFERENTEM RULE NOT APPLICABLE
It is agreed and acknowledged that both parties, directly or through their agents, principals,
representatives and/or solicitors, have participated in the preparation and/or negotiation of the
provisions of this agreement.
Should any provision of this agreement require judicial interpretation, mediation or arbitration, it
is agreed that the court, mediator or arbitrator interpreting or construing the same shall not apply
a presumption that the terms thereof shall be more strictly construed against one party or so as to
disadvantage any party on the basis that such party and/or its solicitor or agent:
(i) prepared this agreement or any part of it; or
(ii) seeks to rely on this agreement or any part of it."
10.16 INDEPENDENT LEGAL ADVICE
To the extent that the solicitors of Wolf Hooker Professional Corporation has been involved in
the preparation of this agreement, such solicitors act solely as solicitors for the Town and with
regard to the interests of the Town and not for any other party to this agreement. It is strongly
recommended that all other parties to this agreement obtain independent legal advice prior to
signing this agreement. Each such party acknowledges:
(i) having obtained independent legal advice from his, her, or its' own solicitor with
respect to the terms of this Agreement prior to its execution or having otherwise been
given a reasonable opportunity to obtain such advice and declined to do so; and
(ii) that he or she or it understands the terms, and his or her rights and obligations, under
this Agreement.
[signing on next page]
Page 14 of 19
IN WITNESS WHEREOF, the Parties hereto have hereunto set their hands and seals.
SIGNED, SEALED AND DELIVERED
in the presence of: }
THE CORPORATION OF THE
TOWN OF TECUMSEH
Title:
"I have authority to bind the Corporation"
Law4:1154th118802TPD15 - TEC Consent Agreement H T Reaume Construction Limited Nov 27 - clean.docx
Page 15 of 19
SCHEDULE "A"
THE LANDS
Part of Gore Lot, Broken Front Concession West of River Peche designated as Parts 1 to 5 12R-
26251 being all of PINS 75267-0021 and 75267-0022
Page 16 of 19
al'
SCHEDULE "B"
APPROVED ENGINEERING DRAWINGS
IR111 1
N ��� upI
all
4
p 'lfeB6 � ►, ��� � �� � RIC
i
Ell
3a N
r ❑ _n 9� r, � � J s'
e O e (J
il� Lsawe � 1 � w �,�• n
,
•
a � b
3'A A I a Ill — o
cx—
Al
dig
3a
e
17g,
,31
ago sq v 3
--------------
Bill
1pil P,
� � � � �' � _ � 6 �n � 76.9p • r�'4 A
Z � �8���€��;����R �€ , 4 � � ��'. a,,. Ob 9 ab ��' 17 p ~• � b
I. i
Page 17 of 19
SCHEDULE "C"
REQUIRED FORM OF IRREVOCABLE LETTER OF CREDIT
(to be put on letterhead of financial institution)
Standby Letter of Creditpursuant to UCP500
Letter of Credit No. Amount: $
1.Initial Expiry Date:
TO: THE CORPORATION OF THE TOWN OF TECUMSEH
Address: _ 917 Lesperance Road, Tecumseh, ON, N8N 1 W9
WE HEREBY AUTHORIZE YOU TO DRAW ON THE
for the account of
(Name of Customer)
UP TO AN AGGREGATE AMOUNT OF
72. ($ } available
on demand
PURSUANT TO THE REQUEST OF our customer:
Dollars
(Name of Bank)
3. hereby establish and give you an Irrevocable Letter of Credit in your favour in the amount
which may be drawn on by you at any time and from time to time, upon written demand for
payment made upon as by you which demand we shall honour without inquiring whether you
have the right, as between yourself and the said customer to make such demand, and without
recognising any claim of our said, customer, or object by it to payment by us.
4. THE LETTER OF CREDIT we understand relates to those Municipal Services and financial
obligations set out in an Agreement between the customer and the Town and referred to as the
(Name of Project)
5. THE AMOUNT of this Letter of Credit may be reduced from time to time as advised by
notice in writing to the undersigned from time to time by the Corporation of the Town of
Tecumseh
6. THIS LETTER OF CREDIT will continue in force for a period of 1 year, but shall be
subject to the condition hereinafter set forth.
7. IT IS A CONDITION of this Letter of Credit that it shall be deemed to be automatically
extended without amendment from year to year from the present or any future expiration date
hereof, unless at least 30 days prior to the present or any future expiration date, we notify you
in writing by registered mail, that we elect not to consider this Letter of Credit to be renewable
for any additional period.
DATED AT . Ontario this day of,20
.
COUNTERSIGNED BY:
Per:
(Name of Financial Institution)
Page 18 of 19
SCHEDULE "D"
SPECIAL WORKS
The owner shall demolish all buildings that occupied the lands prior to receiving provisional
consent approval from the Committee of Adjustment on June 9, 2015 to sever the lands.
Page 19 of 19