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2008-098 pre-servicing agreement Moss Development ltdTHE CORPORATION OF THE TOWNSHIP OF ORO-MEDONTE BY-LAW NO. 2008-098 A By-law to Authorize the Execution of aPre-Servicing Agreement Moss Development Ltd. -Part Lot 11, Gonc. 2 EPR Oro, Part RDAL BTN Lot A & 11, Conc. 2 Oro, as Closed by By-law ORO18994, Being Part 2, 51 R-2282, Except Parts 1, 2, 51 R-26026 and Part 1, 51 R-35600, T!W 80487177, Being all of PIN #58544-0140 (Lt). WHEREAS Section 51, Sub-section (26) of the Planning Act, R.S.Q. 1990, Chapter P, 13, as amended, provides that municipalities may enter into agreements imposed as a condition to the approval of a plan of subdivision and such agreements may be registered against the land to which the subdivision plan applies; AND WHEREAS the Council of the Township of Oro-Medonte deems it desirable to enter into aPre-Servicing Agreement with the Owner of Moss Development Ltd. -for the following Description of Lands: Part Lat 11, Gonc. 2 EPR Ora, Part RDAL BTN Lot A & 11, Gonc. 2 Oro, as Closed by By-law 08018994, Being Part 2, 51 R-2282, Except Parts 1, 2, 51 R-26026 and Part 1, 51 R-35600, TItN 804$7177, Being all of PIN #58544-0140 (Lt}., Township of Oro-Medonte, Gounty of Simcoe; NOW THEREFORE the Council of the Township of Oro-Medonte hereby enacts as follows: That the Mayor and Clerk are hereby authorized to execute, on behalf of the Township of Oro-Medonte, aPre-Servicing Agreement, a copy of which is attached hereto and forms part of this By-law as Schedule "A". 2. That the municipality shall be entitled to enforce the provisions of the Pre- Servicing Agreement against the owners. 3. This by-law shall take effect on the final passing thereof. BY-LAW READ A FIRST AND SECOND TIME THIS 16~" DAY OF JU<_Y, 2008. BY-LAW READ A THIRD TIME AND FINA~~Y PASSED THIS 16T" DAY OF JULY, 2008. THE CORPORATIOa OF THE TOWNSHIP OF ORO-MEDONTE i'` r, H.S. H ~Cierlc, J. Douglas Irwin PRE-SERVICING AGREEMENT - between - MOSS DEVELOPMENT LTD. - and - THE CORPORATION OF THE TOWNSHIP OF ORO-MEDONTE DESCRIPTION OF LANDS Part Lot 11, Conc. 2 EPR Oro, Part RDAL BTN Lot A & 11, Conc. 2 Oro As Closed by By-law OR018994, Being Part 2, 51 R-2282 Except Parts 1, 2, 51 R-26026 and Part 1, 51 R-35600, T/W R0487177 Being all of PIN #58544-0140 {Lt) TOWNSHIP OF ORO-MEDONTE COUNTY OF SIMCOE July, 2008 By-Law No. 2008-098 PRE-SERVICING AGREEMENT THIS AGREEMENT MADE BETWEEN: - and - THE CORPORATION OF THE TOWNSHIP OF ORO-MEDONTE (hereinafter called the "Township"} MOSS DEVELOPMENT LTD. (hereinafter called the "Developer"} WHEREAS the Developer is the registered owner of the lands described in Schedule "A" attached (the "Subdivision Lands"); AND WHEREAS the Developer desires to commence installing municipal services within the Subdivision Lands, prior to the registration of the Plan of Subdivision and the execution of the Subdivision Agreement with the Township; AND WHEREAS the Township has agreed to permit the Developer to install, construct and provide municipal services within the Subdivision Lands on the terms and conditions set out herein; AND WHEREAS the parties to this Agreement declare that the recitals are true and incontrovertible; NOW THEREFORE in consideration of the sum of Two Dollars ($2.00) and other valuable consideration, the receipt and sufficiency of which are hereby irrevocably acknowledged, the parties hereto covenant and agree as follows: 1. ASSUMPTION OF RISK BY DEVELOPER 1.1 The Developer agrees to assume all risk and cast of commencing installation of Township services, as defined in Article 1.4 hereof, an the Subdivision Lands, prior to the execution of a Subdivision Agreement with the Township and the registration of the Plan of Subdivision. The Developer hereby releases, and agrees to indemnify and save harmless, the Township, its agents, servants and employees from and against all actions, suits, claims and demands whatsoever, which may arise either directly ar indirectly as a result of the installation of Township services by the Developer or by reason of the maintenance or lack of maintenance of the Township services or by reason of any defect in workmanship or material. 1.2 The Developer acknowledges and agrees that, in the event that a Subdivision Agreement with the Township is not finalized far any reason and the Plan of Subdivision is not registered as a result, pre-servicing of the Subdivision Lands shall cease immediately. 1.3 The Developer acknowledges and agrees that Engineering design plans and specification for the Township services to be installed by the Developer, as submitted to the Township, in accordance with the terms of this Agreement, may require further amendment as a result of requirements imposed by the Township under the terms of the Subdivision Agreement to be entered into far the Subdivision Lands. The Developer covenants and agrees to assume all risk and responsibility for the cost of required revisions to the Engineering design drawings and specifications for the Township services, together with the costs of modifying, reconstructing, removing and/or replacing the Township services installed by the Developer, pursuant to the terms of this Agreement, in order to satisfy the requirements finally imposed by the Township at the time that the Subdivision Agreement is entered into. 1.4 The Developer acknowledges and agrees that this Agreement relates to and permits the installation of the following Township services on the Subdivision Lands: 1. Installation of road base to base course asphalt 2. Drainage works, including storm sewers and SWMP's 1.5 The Developer acknowledges and agrees that no work shall be carried out on any existing Township right-of-way, and that there shall be no connection to services on any Township right-af-way. 1.6 The Developer acknowledges and agrees that no work shall be carried out on lands not owned by the Developer, without the written consent of the owner to be filed with and approved by the Township. 1.7 The Developer acknowledges and agrees that all Servicing Plans, and all work in constructing, installing and otherwise providing the Township services, must comply with Federal, Provincial and Township laws, By-laws, standards and policies. The Developer further acknowledges and agrees that all work must be done in a good and workmanlike manner and in accordance with the Township's standards, practices and directions. 1.8 The Developer acknowledges and agrees that it shall be bound by the terms and conditions of the Subdivision Agreement and that nothing contained in this Agreement, or in the Township's grant of the permission to proceed with the installation and construction of the Township services, wiN estop the Township from imposing any of its conditions and requirements pertaining to the installation of public works or from enforcing its authority to require the Developer to fully comply with all applicable conditions of approval of the Plan of Subdivision. 1.9 Notwithstanding any other provision of this Agreement, the Developer expressly acknowledges and agrees that Wane of the provisions of this Agreement is intended to operate, nor shall have the effect of operating, in any way to fetter the discretion of the Township or its Council in the exercise of any of its discretionary powers, duties or authorities. 2. REQUIREMENTS PRIOR TO THE COMMENGEMENT OF WORK 2.1 The Developer agrees to submit the following to the Township, in a form satisfactory to the Township, prior to the commencement of the construction and installation of Township services on the Subdivision Lands: a) A letter from a qualified Engineer experienced in the field of Township services confirming: 1. Retainer -That their firm has been retained by the Developers to act as Consulting Engineers in connection with the design, construction and installation of the Township services; 2. Terms of Retainer -The terms of their retainer with the Developer as follows: a) Plans and Specifications -Prepare plans and specifications far the construction of Township services; b) Cost Estimates -Prepare cost estimates for the Township services to be constructed from the drawings; c) Approvals -Obtain all necessary approvals to construct; d) Co-ordination - Co-ordinate the installation of Township services to avoid conflicts with regards to telephone, cable T.V., and Township services; e) On-Site Inspections -Ensure that aH on-site inspections of Township service installations are conducted by the Developer's Consulting Engineers at all times during construction; f) As-Gonstructed Drawings -Submit certified "as-constructed" drawings after acceptance of the Township services; g) Change in Retainer - If at any time during the project: i) The terms of their retainer are changed by the Developer, ar; ii} If they became aware that they will not be able to provide "as constructed" drawings, they will notify the Township within twenty-four (24) hours; h) Erosion and Siltation Gontral -Ensure all necessary precautions are taken to prevent erasion and sedimentation of sewers, ditches, culverts, slopes, etc., both within the subdivision and downstream, prior to and during construction. b) Confirmation letters are to be filed with the Township Clerk, confirming the following: 1) The Township Engineer has no objection to the pre-servicing; 2) The Planning Department has no abjection to the pre-servicing; 3} The Township Solicitors have no legal objections to the pre-servicing; 4) The Ministry of Transportation has no objection to the pre-servicing; 5) Ministry of the Environment Approvals. c) Payment of cash or certified cheque required to cover the cost of the Township's solicitor and Planner for all costs involved in processing the Pre- Servicing Agreement, and for all the Township's Engineers for checking of plans, specifications and inspection an behalf of the Township for the sum of Ten Thousand Dollars ($10,000.00). As accounts are received from the Township Planner, solicitor and Engineer, they will be paid by the Township and then submitted to the Developer far reimbursement within thirty (30) days. In the event that the deposit is drawn down to a level of Five Thousand Dollars ($5,000.00) or less, and the Developer does not pay the accounts within thirty (30) days, it is hereby understood and agreed that the Developer shall be in default of this Agreement and all work. must cease forthwith; d) A Letter of Credit, in the form and having the contents set out in Schedule "G", in the amount set out in Schedule "B", attached, as security to ensure the due completion of the Township services to be constructed by the Developer, and as security to be held by the Township for the warranty periods to be mare particularly described in the Subdivision Agreement for the Subdivision hands, all to the satisfaction of the Township acting in its sale and absolute discretion. The said Letter of Credit shall provide that if, in the sole opinion of the Township, default under the terms of this Agreement has taken place, the said Letter of Credit may thereupon be drawn upon in whale ar in part; e) A certified copy of an insurance policy, ar a certificate of insurance in a form satisfactory to the Township, confirming comprehensive general liability in the amount of Five Million Dollars ($5,000,000.00), naming the Township as co- insured and indemnifying the Township from any and all loss arising from claims or damages, injury or otherwise in connection with the work done by or on behalf of the Developer, and containing the following additional provisions or endorsements: 4 1) Products/Completed Operations provisions; 2) Cross-liability clause; 3) Blasting included, only if done by an independent contractor; 4) Notice of Cancellation - a provision that the insurance company agrees to notify the Township within fifteen (15) days, in advance, of any cancellation or expiry of the said insurance policy. The insurance policy shall be maintained in full farce and effect until the Subdivision is assumed by the Township, and failure to so maintain the policy shall be deemed to be a breach of this Agreement. f) All Servicing Plans shall be submitted to and accepted by the Township Engineer; g) The Ministry of the Environment and Energy has given technical approval to the Servicing Plans. 3. INSPECTION BY THE TOWNSHIP 3.1 The Developer agrees to permit unrestricted access to the Subdivision Lands to the Township and its agents for the purpose of inspection of the Township services to be installed by the Developer. Notwithstanding that inspections may be conducted by the Township or its agents, the Developer shall bear sole responsibility for the soundness of the Engineering design of the Township services, and for ensuring that the Township services to be installed will function, as intended, and will be compatible with the final Plan of Subdivision when and if such Plan of Subdivision is approved. 3.2 If, in the opinion of the Township, there is an emergency situation as a result of any work undertaken by the Developer or its servants, or agents, which requires immediate attention to avoid damage to private or public property or services owned by the Township or to eliminate a potential hazard to persons, such work may be done immediately by the Township at the expense of the Developer, but notice shall be given to the Developer at the earliest possible time. 4. APPLICATION OF SECURITY 4.1 In the event of default by the Developer under the terms of this Agreement, or if the Township is required to enter onto the Subdivision Lands or the abutting Township lands to conduct any work on the Township services or the connection of the Township services to facilities due to an emergency, the Township shall be entitled to draw upon the security posted by the Developer pursuant to the terms of this Agreement, in whole or in part, to cover the costs incurred by the Township in remedying the default on the part of the Developer, or in addressing the emergency situation. 5. NO REDUCTION OF SECURITY 5.1 The Developer acknowledges and agrees that na reduction in the amount of security filed by the Developer with the Township, in accordance with the terms of this Agreement, shall be permitted until such time as the Developer has entered into the Subdivision Agreement for the Subdivision Lands with the Township. Thereafter, any reductions in the security posted by the Developer shall be completed in accordance with the terms of the said Subdivision Agreement. 6. NO ASSUMPTION OF TOWNSHIP SERVICES 6.1 The Developer acknowledges and agrees that the Township shall not be required to assume the Township services to be constructed by the Developer, pursuant to the terms of this Agreement, until such time as the Developer has entered into a Subdivision Agreement with the Township far the Subdivision Lands, and the Township services have been completed, inspected, and approved. 7. WITHDRAWAL OF PERMISSION 7.1 The Developer acknowledges and agrees that the Township is entitled to withdraw its permission granted herein for the installation and construction of the Township services if it is determined, in the sole and absolute discretion of the Township, that such withdrawal is in the best interests of the Township. Upon notification of such withdrawal of permission, the Developer covenants and agrees to immediately cease any further construction, installation and other work in respect of the Township services. The Developer acknowledges that it shall have no claim against the Township if it exercises its right to withdraw the permission granted under this Agreement and it specifically waives and disclaims its rights to make any claims in connection therewith. 8. NOTICE 8.1 Any notice required to be given pursuant to this Agreement may be given by prepaid registered past to the Developer at the following address: Moss Development Ltd. 67 Tanjo Court Thornhill, Ontario ~4J 3B4 and such notice shall be deemed to have been given and received on the third day after mailing. 9. NO ASSIGNMENT 9.1 The Developer shall not assign or otherwise transfer the benefit of this Agreement without the written consent of the Township, which may be unreasonably withheld. 10. APPLICABLE LAW 10.1 This Agreement shall be interpreted under and is governed by the laws of the Province of Ontario. IN WITNESSIMEREOF,t:~e Developer has hereunto set its hands and seats this day ~~''''' , 2008. ~~ ~~ ' '~-- Per: ~ ~ _. ~ `~. ,Developer Ray ~d ~ ,_~-, P p,..} Per: ~i , ~ ~,,,(~ < ~ ; ° ,Developer David Doering IN WITNESS WHEREOF the Township has hereunto sets its hands and seals this ~ (~~ day of , 2008. THE TOWNSHIP OF ORO-MEDONTE SCHEDULE "A" DESCRIPTION OF LANDS: Part Lot 11, Conc. 2 EPR Oro, Part RDAL BTN Lot A & 11, Conc. 2 Oro, as closed by By-law ORO18994, being Part 2, 51 R-2282, except Parts 1, 2, 51 R-26026 and Part 1, 51R-35600, T/V1/ R0487177, being all of PIN #58544-0140 (Lt}, Township of Oro-Medonte, County of Simcoe SCHEDULE "B" CASH DEPOSITS TO BE FILED WITH THE TOWNSHIP: Township's solicitor and Planner for all costs involved in processing the Pre- Servicing Agreement and for all the Township's Engineers for checking of plans, specifications and inspections an behalf of the Township. $ 10,000.00 TOTAL. CASH DEPOSITS TO THE TOWNSHIP $ 10,000.00 2. A Letter of Credit as security to ensure the due completion of the Township services to be constructed by the Developer and as security to be held by the Township until the Developer enters into a Subdivision Agreement for the Subdivision Lands. SECURITY TO BE DEPOSITED WITH THE TOWNSHIP $ 20,000.00 K' IRREVOCABLE LETTER OF CREDIT © Commercial Banking Cree{:side Credit Administration Services Commerci9l Group 4720 Tahoe Blvd., Bldg. #l, 4th Floor Mississauga, Ontario L4W SP2 T: 905-214-0663 F:905-214-3285 Letter of Credit # 1025-9324232-19 Date: May 30, 2008 Except as otherwise expressly stated, this Letter of Credit is issued subject to the Uniform Customs and Practises for Documentary Credits (2007 Revision), being ICC Publication No. 600 TO: THE CORPORATION OF THE TOWNSHIP QF ORO-MEDONTE P.O. BOX 100, ORO, ONTARIO LOL 2X0 We hereby authorize you to draw on the Bank of The Toronto-Dominion, 55 King Street W., Toronto, Ontario MSK 1A2, for the account of Moss Development Ltd. in support of Firm Capital Corporation up to an aggregate amount of TWENTY THOUSAND DOLLARS ($20,0OO.Op) which is available on demand. Pursuant to the request of our said customer, Moss Development Ltd. in support of Firm Capital Corporation we, the Bank of The Toronto-Dominion 55 King Street W., Toronto, Ontario MSK lA2 hereby establish and give to you an Irrevocable Letter of Credit in your favour in the above amount, which may be drawn on by you at any time and from time to time upon written demand for payment made upon us by you, which demand we shall honour without enquiring whether you have the right as between yourself and our said customer to make such demand and without recognizing any claim of our said customer or objection by them to payment by us. Demand shall be by way of a letter signed by an authorized signing officer of the Corporation of the Township of Oro-Medonte. The original Letter of Credit must be presented to us at: Bank of The Toronto- Dominion 55 King Street W., Toronto, Ontario MSK 1A2. The Letter of Credit, we understand, relates to a Subdivision Agreement between our said customer and the Corporation of the Township of Oro-Medonte, with Mortga e Company as a third party, regarding subdivision of 95 Line 1 North, Township of Ora Medonte. The amount of this Letter of Credit may be reduced from time to time as advised by notice in writing, given to us by an authorized signing officer of the Corporation of the Township of Oro-Medonte. Partial drawings shall be permitted. We hereby agree that partial drawings under this Letter of Credit will be duly honoured upon demand. This Letter of Credit will continue in force for a period of one year, but shall be subject to the conditions hereinafter set forth. It is 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 thirty (30) days prior to the present, or any future expiration date, we notify you in writing by courier that we elect not to consider this Letter of Credit to be renewable for any additional period. Letter of Credit No. 1025-9324232-19 FOR: The Toronto-Dominion Bank 55 King Street W. Toronto, Ontario SK lA2 .= Christine Tse T665 Credit Compliance Officer