1998-072 To Enter into a Road Agreement (Concession 10, Part Lot 8 - Cotton)
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THE CORPORATION OF THE TOWNSHIP OF ORO-MEDONTE
BY-LAW NO. 98- 72
Being a By-law to Enter into a Road Agreement (Concession 10, Part Lot 8 - Cotton)
WHEREAS Section 210 (108) of the Municipal Act, R.S.O. 1990, as amended, provides for
municipalities to permit the use of a portion of any highway by the owner or occupant of land
adjoining such highway and for regulating the restoration of such highway;
AND WHEREAS the Corporation of the Township ofOro-Medonte is desirous of entering into
an agreement with the adjoining owner ofland located at Concession 10, Part Lot 8 (Cotton);
NOW THEREFORE the Council of The Corporation of the Township ofOro-Medonte hereby
enacts as follows:
1. That the Mayor and Clerk are hereby authorized to execute the road agreement with the
owner ofland located at Concession 10, Part Lot 8 - Cotton.
2. That the Agreement attached hereto as Schedule "A" forms part of this By-law.
3. That this by-law shall be in full force and effect on it its final passing thereof.
Read a first and second time this 29'h day of June, 1998.
Read a third time and finally passed this 29'h day of June, 1998.
THE CORPORATION OF THE TOWNSHIP OF ORO-MEDONTE
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MAYOR, IAN BEARD
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CLERK, LYNDA AIKEN
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ROAD IMPROVEMENT AGREEMENT
THIS AGREEMENT made
BETWEEN:
hereinafter called the "Developer"
OF THE FIRST PART
-AND-
THE COPRORATION OF THE TOWNSHIP OF ORO-MEDONTE
hereinafter called the "Municipality"
OF THE SECOND PART
WHEREAS the Developer proposes to operate a licenced gravel pit (the "pit") on Part of
Lot 8, Concession 10, Township ofOro-Medonte (the "lands");
AND WHEREAS as a condition of the Municipality granting its approval to the
operation of the pit, the Municipality requires the Developer to enter into this Agreement
to provide for road improvements at the Developer's expense in the immediate vicinity of
the pit.
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of
the premises and for other good and valuable consideration and the sum of Two Dollars
($2.00) oflawful money of Canada now paid by the Municipality to the Developer (the
receipt whereof is hereby acknowledged), THE DEVELOPER AND THE
MUNICIPALITY HEREBY COVENANT AND AGREE WITH ONE ANOTHER AS
FOLLOWS.
1. SCOPE OF AGREEMENT
1.1 Conformity with Agreement - The Developer covenants and agrees that all
work performed pursuant to this Agreement shall be in conformity with the
Plans and Specifications submitted to and accepted by the Municipality.
1.2 Reliance Upon Representations - The Developer acknowledges that.
( a) he has made representations to the Municipality that he will complete
all municipal and other works, required herein, in accordance with the
Plans filed and accepted by the Municipality, and,
(b) the Municipality has entered into this Agreement in reliance upon these
representations.
1 J Schedules Attached - The following schedules are attached to this Agreement.
Schedule "A" - Description of Work and Municipality's Road Standards
Schedule "B" - Cash Deposits and Security
2. CONDITIONS PRIOR TO EXECUTION OF AGREEMENT BY THE
MUNCIPALITY
2.1 Prior to the execution of this Agreement by the Municipality, the Developer
shall.
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(a) Cash Deposits and Security - have paid to the Municipality all
cash deposits and security required by Schedule "B" attached;
(b) Insurance Certificate - have filed with the Municipality an
insurance certificate confirming those coverage's specifically set
out hereafter;
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3. ROAD IMPROVEMENTS - ON MUNICIPAL PROPERTY
3.1 The Developer will construct and install at its expense the hereinafter required
road improvements. Such improvements shall be constructed in accordance
with the standards and specifications required by the Municipality to the
satisfaction of the Road Superintendent.
These improvements may be summarized as follows.
(a) See Schedule "A" - upgrading the 9th line from the proposed pit
entrance on the lands westward to meet with the existing hard surface
on the 9th line.
(b) Signs - installation at pit entrance advising all truckers of approved haul
route.
(c) Dust Suppression - controlling dust by using an approved dust
suppressant on the road under construction.
3.2 The Developer acknowledges that the final surface treatment of the road shall
not be done until one (1) year after the road base has been approved in writing
by the Road Superintendent.
3 J The Developer agrees that it shall not operate the proposed pit until all of the
above work, except the final surface treatment of the road, has been completed
to the satisfaction of the Municipality.
4. IMPROVEMENTS - ON PRIVATE PROPERTY
4. 1 The Developer will construct and install at its expense the hereinafter required
improvements on the lands. Such improvements shall be constructed in
accordance with the standards and specifications required by the Municipality
to the satisfaction of the Road Superintendent.
These improvements may be summarized as follows.
(a) Site Line Improvements - Clearing and grading of the northwest corner of the
lands to improve the site line on the curve west of the pit entrance. Details are
shown on sketch included in Schedule "A", attached.
5. SPECIAL PROVISION - HAUL ROUTE
5. 1 The Developer agrees to restrict all truck traffic to and rrom the pit to the
following haul route:
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(a) South on the 9th line rrom the pit entrance to County Road 11.
5.2 The Developer acknowledges that this haul route, after upgrading, will remain
a seasonal road subject to halfload restrictions.
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5.3 The Developer shall maintain his portion of the haul route for a period of two
years from the date of acceptance of the road improvements by the
Municipality, including any necessary dust control, save and except for normal
maintenance performed by the Municipality.
6. SPECIAL PROVISION - TRUAX IMPROVEMENTS
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6.1 The Developer acknowledges that Maurice Truax has made certain
improvements to the 9th line which benefit the Developer. The Developer
agrees to make a capital contribution to him for such improvements in the
amount of$12,000.00. Payment of the $12,000.00 shall be in two installments
of $6,000.00 each, the first installment due on the execution of this Agreement,
and the second installment payable June 1, 1999. The Developer shall give to
Maurice Truax a Promissory Note confirming this obligation.
7. SPECIAL PROVISION - LICENCES TONNAGE
7.1 The Developer acknowledges that this Agreement and the requirements of the
Developer herein are based upon the pit having a licenced tonnage of not more
than 100,000 tonnes per year. The municipality may require a further
Agreement in the event that the Developer makes application to increase the
licenced tonnage.
8. ACCEPTANCE OF IMPROVEMENTS
8.1 To Provide Vehicular Access - Prior to the acceptance of the Improvements,
the Developer will at all times maintain proper vehicular access on the 9th line
and will maintain the road in the same manner as the Municipality maintains
similar Municipal streets.
8.2 Failure to Provide Vehicular Access - In the event that proper vehicular access
and/or maintenance is not provided as so specified herein, then the
Municipality through its servants, contractors or agents, may, (but shall not be
obliged to) provide and maintain such access and maintenance as may be
required and all costs so incurred by the Municipality shall, within thirty (30)
days of demand, be paid by the Developer to the Municipality and the
Municipality shall not be deemed in any way to have accepted the road upon
which such work was done.
8.3 Application for Acceptance - On Application for acceptance of the
Improvements, the Developer shall file with the Municipality:
(a) written confirmation from the road contractor that all work has been
done in accordance with the requirements of the Municipality.
(b) a declaration as to accounts pursuant to Schedule "B".
8,4 Acceptance - Provided that the Developer has complied with all of the
provisions of this Agreement, and in particular with the preceding
subparagraph, the Municipality will pass a by-law confirming acceptance of the
Improvements.
9. EMERGENCY SITUATION
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9.1 If, as a result of any work undertaken by the Developer or its servants, or
agents, there is in the opinion of the Road Superintendent an emergency
situation which requires immediate attention to avoid damage to private or
public property or services owned by the Municipality, such work may be done
immediately by the Municipality at the expense of the Developer, but notice
shall be given to the Developer at the earliest possible time.
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10. INSURANCE CERTIFICATE AND POLICY
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10. 1 Policv of Insurance - The Developer shall lodge with the Municipality on or
prior to the execution of the Agreement, an insurance certificate with an
Insurance company satisfactory to the Municipality, (the approval of which
shall not be unreasonably withheld or delayed), and insuring for the joint
benefit of the Developer and the Municipality, against any liability that may
arise out of the construction or installation of any work to be performed
pursuant to this Agreement and for a period of two (2) years after completion
and acceptance of the Road Improvements to be constructed herein.
10.2 Comprehensive General Liability - Such policy shall carry limits ofliability in
the amount to be specified by the Municipality, but in no event shall it be less
than $2,000,000.00 inclusive comprehensive general liability and such policy
shall contain:
(a) a cross-liability clause;
(b) product/completed operation coverage;
(c) shall include the following names as insured:
(i)
(ii) The Corporation of the Township ofOro-Medonte
10.3 Certificate of Coverage - Any certificate of coverage filed with the
Municipality shall specifically contain confirmation that the coverage includes
(a), (b) and (c) above.
10.4 The Developer agrees that there will be no blasting for construction of
improvements unless prior written approval of the Municipality is obtained and
insurance satisfactory to the Municipality is in place.
10.5 Confirmation of Premium Payment - The Developer shall, from time to time
as required by the Municipality, provide confirmation that all premiums on such
policy or policies of insurance have been paid, and that the insurance is in full force
and effect, and ensure that a copy of the policy is filed with the Municipality.
10.6 Claim in Excess of Policy Limits - The issuance of such Policy ofInsurance
shall not be construed as relieving the Developer rrom responsibility for other or
larger claims, if any, or for which it may be held responsible.
10.7 Notice of Cancellation - The insurance company shall agree to notifY the
Municipality within fifteen (15) days of any cancellation or expiry of said insurance
policy.
11. CONSTRUCTION. COMMENCEMENT AND COMPLETION
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11.1 The Developer agrees to commence construction of the Improvements
required herein within twelve (12) months of the date of the execution of this
Agreement by the Municipality, and further agrees to complete all
Improvements prior to September 1, 2000. Notwithstanding the foregoing,
and without extending the completion date set out herein, the final surface
treatment of the Road Improvements shall not be installed until one (l) year
after the road base has been approved in writing by the Road Superintendent.
12. EXPENSES TO BE PAID BY THE DEVELOPER
12.1 Every provision of this Agreement by which the Developer is obligated in any
way shall be deemed to include the words "at the expense of the Developer"
unless the context otherwise requires.
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12.2 The Developer shall pay such reasonable fees as may be invoiced to the
Municipality by its Solicitor and its Municipal Engineer in connection with all
work to be performed as a result of the provisions of this Agreement.
12.3 All expenses for which demand for payment has been made by the
Municipality, shall bear interest at the rate of 12% per annum commencing
thirty (30) days after demand is made.
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12.4 In the event that the Municipality finds it is necessary to engage the services
of an engineer or technical personnel not permanently employed by the
Municipality, to review the plans of the Developer and/or carry out on-site
inspections of the work performed, the Municipality will advise the
Developer accordingly of this need, and the costs of such outside engineers
so engaged shall be the responsibility of the Developer. The Municipality
may require a deposit for this purpose.
13. CASH DEPOSITS AD SECURITY
13.1 The Developer shall lodge with the Municipality, those cash deposits and
security more particularly described in Schedule "B" and at the dates specified
therein.
13.2 In the event that the expenses of the Municipality exceed the amount of the
cash deposits or security set out in Schedule "B" attached, the Developer shall
pay such excess charges within thirty (30) days after demand by the
Municipality.
133 Value of Work Not Competed - there shall also be filed with the Municipality
a letter from the said Contractor confirming the value of work yet to be
completed under this Agreement and which value shall be subject to the
approval of the Road Superintendent.
13.4 Construction Lien Sub-search - shall be done to determine that no
construction liens have been filed with respect to the Municipality.
13.5 Acceptance ofImprovements - the acceptance of the Road Improvements
shall be in the reasonable discretion of the Road Superintendent.
14. COMMENCEMENT OF TWO-YEAR WARRANTY PERIOD
14.1 A two (2) year warranty period, to guarantee against defects in
construction, as required by this Agreement, shall commence after the
acceptance by the Municipality ofthe Improvements.
15. APPLICATIONS OF LETTER OF CREDIT AND SECURITY
15.1 Any Letter of Credit or Security filed with the Municipality is based upon the
estimated cost of completing the various matters prescribed by this Agreement.
However, all Letters of Credit and Security received by the Municipality may
be used as security for any item or any other matter which under the terms of
this Agreement is the responsibility of the Developer.
16. REALIZATION OF SECURITY OR DEPOSITS
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16.1 Default - If, in the event of default of the Developer under any of the
provisions of this Agreement, it becomes necessary for the Municipality to
realize on its security or deposits, then the Municipality (its servants, agents or
subcontractors) shall, if the Municipality so elects, have the right and privilege
at all times to enter upon the lands for the purpose of repairing or completing
or paying for any work or services required to be completed by the Developer
under this Agreement.
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16.2 Exceeding Cost Estimates - If the costs of completing such work or
improvements, exceeds the amount of security held by the Municipality, such
excess shall be paid by the Developer to the Municipality, thirty (30) days after
invoicing by the Municipality. All overdue accounts shall bear interest at the
rate of twelve (12%) percent per annum.
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16.3 Save Harmless - The Developer on behalf of itself, its successors and assigns
agrees to indemnifY and save harmless the Municipality from and against any
and all claims, suits, actions and demands whatsoever which may arise either
directly or indirectly by reason of any work or service performed by the
Municipality, its servants or subcontractors in order to complete the work or
services required to be completed under this Agreement, provided the subject
matter of such action, suits, claims or demands was not caused intentionally or
through gross negligence on the part of the Municipality, its servants or agents
or subcontractors.
16.4 The Construction Lien Act - If the Municipality becomes obligated to make
any payments, or pay any costs, under the provisions of the Construction Lien
Act, this will constitute a default and entitle the Municipality to realize upon its
security.
17. REALIZATION ON LETTER OF CREDIT
17. 1 In the event that the Municipality cashes a Letter of Credit, any surplus
monies remaining after the completion of the work by the Municipality, will be
returned to the issuing Bank for transmission to that party that took out the
original Letter of Credit with the Bank.
18. ESTOPPEL OF DEVELOPER
18.1 The Developer agrees to 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 estoppel against the Developer in any such
proceedings.
19. TIME OF THE ESSENCE
19. 1 The parties hereto agree that time shall be of the essence in the Agreement.
20. INTERPRETATION
20.1 Provided and it is hereby agreed that in construing these presents the word
"Developer" and the personal pronoun "he" or "his" relating thereto and used
therewith, shall be read and construed as "Developers" and "his", "hers", "its",
or "their", respectively as the number and gender of the party or parties
referred to in each case require, and the number of the verb agreeing therewith
shall be so construed as agreeing with the said word or pronoun so substituted.
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20.2 And that all covenants, rights, advantages, privileges, immunities, powers and
things hereby secured to the Municipality shall be equally secured to and
exerciseable by its successors and assigns as the case may be.
20.3 And that all covenants, liabilities and obligations entered into and imposed
hereunder upon the Developer, shall be equally binding upon his, her, its or
their heirs, executors, administrators and assigns, or successors and assigns as
the case may be, and that all such covenants and liabilities and obligations
shall be joint and several.
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THIS AGREEMENT shall enure to the benefit of and be binding upon each of the
parties hereto and their respective heirs, executors, administrators, successors and assigns.
IN WITNESS WHEREOF the parties hereto have executed this Agreement on the
following dates.
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By the Developer on the
day of
,1998.
Per.
Per.
By The Corporation of the Township ofOro-Medonte on the
1998.
day of
THE CORPORATION OF THE
TOWNSHIP OF ORO-MEDONTE
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Per ~L.- ~u~
Ian Beard, Mayor
Per.
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Lynda Aiken, Clerk
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SCHEDULE" A"
THIS IS SCHEDULE "A" TO THE ROAD IMPROVEMENT AGREEMENT
BETWEEN AND THE CORPORATION OF THE TOWNSHIP
OF ORO-MEDONTE
DESCRIPTION OF WORKS AND MUNICIPALITY'S ROAD STANDARDS
1998 Gravel surface 8 metres wide, 200 mm thick, of 16mm granular "A", reshaping of
ditches and installation of culverts where deemed necessary by the Road
Superintendent.
Clearing and grading of the northwest corner of the lands to improve the site lane
on the curve west of the Pit Entrance. (details attached)
2000 Surface with a single high float surface and a single 10 mm clear chip for the
second surface.
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SITE TRIANGLE
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SCHEDULE "B"
THIS IS SCHEDULE "B" TO THE ROAD IMPROVEMENT AGREEMENT
BETWEEN AND THE CORPORATION OF THE TOWNSHIP
OF ORO-MEDONTE
CASH DEPOSITS AND SECURITY
The Developer shall, on the dates specified herein, lodge with the Municipality the
following described cash deposits and security.
1. TYPE OF SECURITY
Any security required to be filed under this Agreement, shall be by certified cheque
or by Letter of Credit valid for a period of one (I) year with extension provisions
and prepared in a form provided by the Municipality. It shall be drawn on a
Chartered Bank of Canada and shall be for the amount hereafter set out.
2. Upon execution of this Agreement the Developer shall deposit a $10,000.00 Letter
of Credit with the Municipality as security to guarantee performance of his
construction and maintenance obligations.
3. The Letter of Credit shall remain with the Municipality for a period of two (2)
years after the date of the acceptance of the improvements, as a guarantee against
any defects in the construction of such improvements and also as a guarantee of
due compliance of all provisions and obligations of the Developer as set out in this
Agreement.
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