2012-136 Authorize Execution of Cost Sharing Agreement with 2063334 Ontario and South Shore Isabella EstatesTHE CORPORATION OF THE TOWNSHIP OF ORO- MEDONTE
BY -LAW NO. 2012 -136
A By -law to Authorize the Execution of a Cost Sharing Agreement
between The Corporation of the Township of Oro - Medonte and
2063334 Ontario Inc. and South Shore Isabella Estates Inc.
WHEREAS the Municipal Act, 2001, S.O. 2001, c.25, Section 224, as amended,
provides that it is the role of Council to ensure that administrative practices and
procedures are in place to implement the decisions of Council;
AND WHEREAS the Municipal Act, 2001, S.O. 2001, c.25, Section 11(3), as amended,
provides that a municipality may pass by -laws with respect to Public Utilities;
WHEREAS the Warminster Settlement Area in the Township is serviced by a municipal
water system known as the Warminster Water Supply System, (the "Water System ");
AND WHEREAS it is the Township's policy to ensure that the Water System is
periodically upgraded, to ensure that it continues to have sufficient capacity and
capability to service development in the area;
AND WHEREAS the Warminster Settlement Area is anticipated to accommodate at
least 121 lots, and possibly 159 lots, upon full build -out and certain upgrades to the
Water System are required in order to accommodate that build -out (the "Water System
Upgrades ");
AND WHEREAS the Developers and the Township are desirous of entering into an
agreement respecting the financing and sharing of the costs of the Water System
Upgrades, which are required to service the Warminster Settlement Area upon full build -
out;
NOW THEREFORE the Council of the Township of Oro - Medonte hereby enacts as
follows:
That the Mayor and Clerk be authorized to execute a Cost Sharing Agreement,
substantially in the form attached as Schedule "A" and forming part of this by -law.
2. This by -law shall take effect on the final passing thereof.
BY -LAW READ A FIRST, SECOND AND THIRD TIME, AND PASSED THIS 11 DAY
OF JULY, 2012.
THE C013PORATION OF THE TOWNSHIP OF ORO- MEDONTE
ayor, H.S. H
Clerk. J./DoCidlas Irwin
COST SHARING AGREEMENT
THIS AGREEMENT made this \, day of July, 2012.
BETWEEN:
2063334 ONTARIO INC.
-and-
SOUTH SHORE ISABELLA ESTATES INC.
(hereinafter collectively referred to as the "Developers ")
-and-
THE CORPORATION OF THE TOWNSHIP OF ORO- MEDONTE
(hereinafter referred to as the "Township ")
WHEREAS the Warminster Settlement Area in the Township is serviced by a municipal
water system known as the Warminster Water Supply System, (the "Water System ").
AND WHEREAS it is the Township's policy to ensure that the Water System is
periodically upgraded, to ensure that it continues to have sufficient capacity and
capability to service development in the area.
AND WHEREAS the Warminster Settlement Area is anticipated to accommodate at
least 121 lots, and possibly 159 lots, upon full build -out and certain upgrades to the
Water System are required in order to accommodate that build -out (the "Water System
Upgrades ").
AND WHEREAS 2063334 Ontario Inc. ( "206 ") is the registered owner and developer of
certain lands located in the Warminster Settlement Area, known as the "Homire
Subdivision" and legally described as Part of Lot 5, Concession 14 PCL 5 -2, SEC 51-
MED-14; PT LT 5 CON 14 MEDONTE, PTS 1,2,3,4 & 5,51R23534; S/T ME13739;
Township of Oro - Medonte Being all of PIN # 58530 -0119 (LT) (former Township of
Medonte).
AND WHEREAS 2063334 Ontario Inc. is the registered owner and developer of certain
additional lands located in the Warminster Settlement Area, known as the "Meadow
Acres Subdivision" and legally described as PCL 5 -2 SEC 51- Med -13; pt e1/2 con 13
MEDONTE PTS 1,2,3,4,5 & 6 51R29091; S/T R0680283; ORO- MEDONTE-
pin #58530 -0044 LT.
AND WHEREAS South Shore Isabella Estates Inc. ( "Isabella Estates ") is the registered
owner and developer of certain lands located in the Warminster Settlement Area, known
as the "Isabella Subdivision" and legally described as PT LOT 5 CON 14 MEDONTE
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AS IN RO 167598 EXCEPT PT 1, 51R37351; TOWNSHIP OF ORO- MEDONTE
(GEOGRAPHIC TOWNSHIP OF MEDONTE), COUNTY OF SIMCOE, PIN 58530-
0393 (LT).
AND WHEREAS a portion of the Water System Upgrades, including the construction
and installation of a new production well and the replacement and upgrade of the existing
well house have been completed for the Warminster Settlement Area (the "Completed
Upgrades "). The Water System Upgrades that remain to be completed as of the date of
this Agreement include the expansion of the existing underground water storage reservoir
and the installation of a fire pump (the "Outstanding Upgrades ").
AND WHEREAS, pursuant to a subdivision agreement registered in 2009, 206 has paid
the cost of the Completed Upgrades, and associated engineering costs, that will allow for
the connection of the Water System to up to 159 lots in the Warminster Settlement Area,
including the 28 lots in the Homire Subdivision and the 71 lots in the Meadow Acres
subdivision.
AND WHEREAS the Township issued a tender for the construction and installation of
the Outstanding Upgrades. The cost of these upgrades is anticipated to be $812,846.88,
including engineering costs.
AND WHEREAS the Water System Upgrades, once completed, will provide a local
service to, inter alia, the Homire Subdivision, the Meadow Acres Subdivision and the
Isabella Subdivision, as well as certain other lands contemplated for future development
within the Warminster Settlement Area, including the " Teskey Lands ", legally known as
Concession 14, South Part of Lot 5, RP 51R -6537, Part 1 (Medonte) and the "Rix Lands"
legally known as Concession 14, East Part of Lot 6, 1922 Warminster Sideroad Township
of Oro - Medonte, County of Simcoe.
AND WHEREAS all together and upon full build -out, the Homire Subdivision, the
Meadow Acres Subdivision, the Isabella Subdivision, the Teskey Lands and the Rix
Lands are currently anticipated to include 159 developed lots.
AND WHEREAS this Agreement contemplates that, while certain front - ending
payments have been made by 206 and will be made by the Township, the total costs of
the Water System Upgrades will be shared, on a proportionate per -lot basis which is
estimated to be $9,302.74 per lot, based on the full build -out scenario of 159 lots.
AND WHEREAS this Agreement does not provide for any planning approvals.
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AND WHEREAS the Developers and the Township are desirous of entering into an
agreement respecting the financing and sharing of the costs of the Water System
Upgrades, which are required to service the Warminster Settlement Area upon full build -
out.
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of
other good and valuable consideration, and the sum of One Dollar ($1.00) of lawful
money of Canada, now paid by each of the Parties hereto to the other, the receipt whereof
is hereby acknowledged, and the mutual covenants and agreements hereinafter contained,
the Parties hereto covenant, promise, and agree with each other as follows:
1. Scope of Agreement
This Agreement will define the obligations and duties of the parties with respect
to the financing and cost sharing of certain works and services that will benefit the
Developers' lands as well as the Teskey Lands, Rix Lands and any potential
future development lots in the Warminster Settlement Area. The parties
acknowledge that this Agreement is not a front - ending agreement or a credit
agreement as authorized under the Development Charges Act, 1997 and that the
Water System Upgrades set out in Schedule "A" are not development charge
designated services and that the capital costs of the Water System Upgrades have
not been included in a development charge by -law enacted by the Township. The
parties acknowledge that the Township will endeavour to utilize its reasonable
and best efforts, within its jurisdiction and as set out in greater detail in Section
10, to impose such charges and/or conditions, as may be permitted at law, to
recover from the Future Benefiting Owners (defined below) of the Teskey Lands,
Rix Lands and any other future development lots, their proportionate share of the
total cost of the financed Water System Upgrades, in order to reimburse 206
and /or the Township, as the case may be.
2. Warminster Settlement Area
The Warminster Settlement Area is identified in Schedule "B ", which identifies
those lands, including the Homire Subdivision, the Meadow Acres Subdivision,
the Isabella Subdivision, the Teskey Lands and the Rix Lands, that will derive a
benefit from the provision of the Water System Upgrades. The registered owners
from time to time of the Teskey Lands, the Rix Lands and any future lot
severance and rezoning within the Warminster Settlement Area, shall be referred
to collectively as "Future Benefiting Owners" in this Agreement.
3. Financed Services
The Parties agree that the works and services to be financed under this Agreement
shall pertain to the Water System Upgrades as more specifically set out and
M
defined in Schedule "A ". The Water System Upgrades covered by this Agreement
and contemplated to be shared by the respective Developers and Future
Benefitting Owners, on a proportionate lot basis, include both the Completed
Upgrades and the Outstanding Upgrades.
4. Obligation for Construction and Installation
It is acknowledged by the Developers that the Township has issued a tender for
construction and installation of the Outstanding Upgrades. The tender closed on
April 26, 2012.
5. Timing of Construction
The Township will endeavour to award the contract for the Outstanding Upgrades
to the successful tenderer (the "contractor ") on or before July 25, 2012. The
Township will further endeavour to have the contractor commence construction
and installation of the Outstanding Upgrades that are the subject of that contract,
forthwith. The Township agrees that the contract shall require that the contractor
construct and install the upgrades within twenty -eight weeks from the date of the
Engineer's written order to commence work, weather permitting ( "substantial
completion ").
6. Estimated Costs
The estimated total cost for engineering design and contract supervision,
construction, installation, contingencies, and miscellaneous costs of the Water
System Upgrades, including the Completed Upgrades and the Outstanding
Upgrades that are the subject of the tender, is $1,479,135.17. A detailed outline
of the estimated cost of the components of the Water System Upgrades is attached
as Schedule "C ".
The actual total cost of the Water System Upgrades, including the Township's
legal costs to prepare this agreement, will be calculated and finally determined by
the Township upon completion of the upgrades. The parties agree that any
difference between the estimated total cost and the actual total cost of the Water
System Upgrades will be shared, on a proportionate per -lot basis, by each of the
parties to this Agreement and all other terms of this Agreement shall continue to
apply.
7. Basis of Cost Sharing Obligations
(a) The parties acknowledge and agree that the Developers, together with the
Future Benefiting Owners, are intended to share the costs of the Water
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System Upgrades on a proportionate per -lot basis, as set out in Section 8
of this Agreement and Schedule "D" attached hereto.
(b) The parties acknowledge and agree that 206 has paid $251,720.94 toward
the proportionate cost of the Completed Upgrades, and associated
engineering costs, that will allow for the connection of the Water System
to the Isabella Subdivision, the Teskey Lands and the Rix Lands (the "206
Front - Ending Payment ") and that this Agreement governs the terms by
which the Township will seek to ensure that 206 is reimbursed by Isabella
Estates and the Future Benefitting Owners for same. More particularly, the
206 Front - Ending Payment is comprised as follows:
(i) $92,487.34 on behalf of Isabella Estates and in respect of the
Isabella Subdivision;
(ii) $37,392.36 on behalf of the Future Benefitting Owner(s) in respect
of the Rix Lands;
(iii) $121,841.24 on behalf of the Future Benefitting Owner(s) in
respect of the Teskey Lands.
(c) The parties acknowledge and agree that the Township will make a
payment of $194,270.40 for the Outstanding Upgrades in respect of the
Teskey Lands and the Rix Lands (the "Township Front - Ending
Payment ") and that this Agreement governs the terms by which the
Township will seek reimbursement by the Future Benefitting Owners, for
same.
(d) The Township shall make reasonable and best efforts, within its
jurisdiction, to recover the 206 Front - Ending Payment and the Township
Front - Ending Payment from the Future Benefitting Owners in the event
that development occurs on the Teskey Lands and /or the Rix Lands.
(e) The parties acknowledge that there is no guarantee that development will
occur on the Teskey Lands and /or the Rix Lands. In the event that the
total possible build -out of 159 lots on those lands does not occur within
twenty (20) years from the date of this Agreement, the Township's
obligations pursuant to Subsection 7(d) shall be at an end and, at that time,
the parties will not be entitled to rely on any of the terms of this
Agreement to recover any portion of the Front - Ending Payments that may
not, as of that date, have been recovered from the Future Benefiting
Owners.
W
8. Payment for Water System Upgrades
The Developers and the Township agree to pay for and/or front -end, as the case
may be, the costs of the Water System Upgrades in accordance with this section
and Schedule "D" to this Agreement.
(a) Isabella Estates shall make a payment of $204,660.21 toward the
proportionate per -lot costs of the Water System Upgrades that are required
to service the Isabella Subdivision. Such payment shall be made on the
date this Agreement is signed and is more particularly described as
follows:
(i) $92,487.34 represents the proportionate per -lot cost of the Completed
Upgrades on the Isabella Lands, which amount forms part of the 206
Front - Ending Payment. Upon receipt, the Township will pay this amount
to 206.
(ii) $112,172.87 represents the proportionate per -lot cost of the
Outstanding Upgrades for the Isabella Subdivision.
(b) 206 shall make a payment of $506,403.61, less the $24,910 credit
currently held by the Township in favour of 206, toward the proportionate
per -lots cost of the Outstanding Upgrades that are required to service the
Homire Subdivision and the Meadow Acres Subdivision. Such payment
shall be made in five instalments, as follows:
(i) $229,771.92 to be paid on the date this Agreement is signed;
(ii) $29,535.50 to be paid on or before November 28, 2012;
(ii) $29,535.50 to be paid on or before December 28, 2012;
(iii) $29,535.50 to be paid on or before May 29, 2013; and
(iv) $188,025.19 to be paid on or before June 28, 2013.
(c) The Township shall make a payment of $194,270.40, which payment
represents the Township Front - Ending Payment referred to in Subsection
7(c), being the cost of the Outstanding Upgrades that are expected to be
required to service the Teskey Lands and the Rix Lands, upon full build -
out of the Warminster Settlement Area. Such payment shall be made on
the date this Agreement is signed.
9. Method of Payment
The parties agree to deposit all payments with the Township, which payments the
Township will deposit in a capital account related to the Water System Upgrades.
The Township will administer the payments to the contractor and engineering
consultants responsible for the construction and installation of Outstanding
Upgrades, in accordance with the Township's statutory and legal obligations.
-7-
10. Township's Reasonable and Best Efforts Regarding Reimbursement of
Front - Ending Payments by Future Benefitting Owners
(a) The parties acknowledge that the 206 Front - Ending Payment and the
Township Front - Ending Payment represent the estimated cost of the Water
System Upgrades that will benefit the Future Benefitting Owners and, in
particular, that will connect to future development on the Teskey Lands,
the Rix Lands and future additional lots within the Warminster Settlement
Area. The 206 Front - Ending Payment also includes a portion of money
that was front -ended on behalf of Isabella Estates, as noted in Subsection
7(b).
(b) The Township, so far as it is legally empowered to do, shall make
reasonable and best efforts, within its jurisdiction, to impose on the Future
Benefiting Owners, as a condition of developing the Teskey Lands and/or
the Rix Lands, a charge and /or condition requiring the Future Benefiting
Owners to pay to the Township, upon execution of a subdivision
agreement or upon severance for the lands, whichever is earlier, a
proportionate per -lot share of the total cost of the Water System Upgrades.
(c) The Township shall, upon receiving payment, reimburse to 206 the
amounts collected from the Future Benefiting Owners up to a maximum
amount, being the amount of the 206 Front - Ending Payment referred to in
Subsection 7(b), as it relates to the Teskey Lands and the Rix Lands.
(d) The parties acknowledge and agree that the payments mentioned in this
Agreement are not subject to interest and do not require adjustment for
inflation.
(e) The parties acknowledge and agree that the actual total costs of the Water
System Upgrades will be finally determined and assessed in accordance
with Section 6 of this Agreement. The Township will not seek to impose
on the Developers any future administrative costs associated with the
Township's efforts to obtain reimbursement of the Front - Ending Payments
from the Future Benefitting Owners.
(fl Once 206 has been reimbursed for its Front - Ending Payment, in
accordance with Subsection 10(c), any additional payments that the
Township receives from the Future Benefitting Owners in respect of the
Future Benefitting Owners' proportionate share of the cost of the Water
System Upgrades shall be applied to reimburse the Township for its Front -
Ending Payment, made pursuant to Subsection 7(c).
(g) The Township, as part of this reasonable best efforts obligation, shall not:
(i) be required to institute any judicial or administrative proceedings
to impose the condition referred to in Subsection 10(b); or
(ii) be required to defend any judicial or administrative proceedings
that are brought against it by any landowner arising out of the
imposition of the condition referred to in Subsection 10(b). The
Developers shall have the right to apply to become a party to such
proceedings and participate in such proceedings on its own behalf
at its sole cost.
(h) The Township shall, immediately upon receiving notice of any judicial or
administrative proceedings brought against it by any landowner arising out
of the imposition of the condition referred to in Subsection 10(b), give
written notice of such proceedings to the Developers.
(i) The Developers agree to indemnify and hold harmless the Township
against all actions, causes of action, suits, claims demands, and costs of
any nature or kind whatsoever which the Township may incur as a result
of the Township imposing the charge or condition referred to in
Subsection 10(b).
(j) The Township's obligations to exercise reasonable and best efforts under
Section 10 shall terminate with respect to any Future Benefiting Owner if
any judicial or administrative proceedings brought by that Future
Benefiting Owner are not defended or responded to by 206.
(k) The Township's obligations to undertake its reasonable best efforts to
impose a charge or condition requiring reimbursement to the Township, in
respect of the 206 Front - Ending Payment shall completely terminate
twenty (20) years from the date of the execution of this Agreement.
11. Notification
If any notice is required to be given by either or both of the Developers or the
Township to another, then such notice shall be delivered by hand, by courier, by
mail or by facsimile transmission and the address, telephone and fax numbers for
such notice shall be as follows:
To 2063334 Ontario Inc.:
255 Duncan Mill, Suite 801
Toronto, M3B 3H9
Attention: Galen Lam
Fax: 416 391 -6703
Telephone: 416 391 -6700
®'
To Isabella Estates:
South Shore Isabella Estates Inc.
1858 Elana Drive,
Orillia, ON L3V OC2
Attention: Rob Cheslock
Fax: 705 739 -0299
Telephone: 705 790 -8819
To the Township:
148 Line 7 S
Oro, ON
LOL 2X0
Attention: Township Clerk
Fax: 705 487 -0133
Telephone: 705 487 -2171
12. Severability
Each of the covenants, sections, subsections, clauses and provisions of this
Agreement are severable from every other covenant, section, subsection, clause
and provision of this Agreement and the invalidity or unenforceability of any one
or more covenants, sections, subsections, clauses or provisions shall not affect the
validity or enforceability of the remaining covenants, sections, subsections,
clauses and provisions.
13. Enurement
The parties agree that this Agreement shall enure to the benefit of and be binding
upon the respective successors in title or assigns of the parties hereto.
[Remainder of page intentionally left blank]
11111�
IN WITNESS WHEREOF the Parties hereto have affixed their respective corporate
seals duly attested to by the hands of their authorized signing officers in that regard this
a day of July, 2012.
SIGNED, SEALED & DELIVERED
in the presence of:
2063334 ONTARIO INC.
Name: Galen Lam
Title: Director
I have authority to bind the corporation.
SOUTH SHORE ISABELLA
ESTATES INC.
Name: Rob Cheslock
Title: President
I have authority to bind the corporation.
THE CORPORATION OF THE
TOWNSHIP OF ORO -MEDON'
iv ame: harry nes
Title: Mayor 0 9
N i Irwin
We have authority to bind the corporation.
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SCHEDULE "A"
FINANCED WORKS
Water System Upgrades
"Water System Upgrades" shall mean construction and installation of a new production
well, replacement and upgrade of the existing well house, expansion of existing
underground water storage reservoir and installation of fire pump.* The Water System
Upgrades are to be constructed and installed to the satisfaction of the Township, and are
to comply with the requirements of the Ministry of Environment, and all approval
authorities having jurisdiction.
*As of the date of this Agreement, the installation of a new production well and the
replacement and upgrade of the existing well house, for the entire 159 potential lots in the
Warminster Settlement Area have been completed (the "Completed Upgrades "), and
they have been financed entirely by 206. The expansion of the existing underground
water storage reservoir and installation of the fire pump remain to be completed, as of the
date of this Agreement (the "Outstanding Upgrades ").
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SCHEDULE`B"
WARMINSTER SETTLEMENT AREA
■
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SCHEDULE "C"
ESTIMATED COSTS OF WATER SYSTEM UPGRADES
Upgrade
Costs*
Well
$73,189.90
Well House
$427,489.26
MOE Application for reservoir /fire pump
$3,200.00
Reservoir Upgrade / Fire Pump Tender
(Tender Price) **
$738,370.56
Eng. (2007 to Jan. 12, 2012)
$162,409.13
Tender Prep, Construction Admin and
Inspection for Reservoir Upgrade / Fire
Pump (Estimate) **
$74,476.32
Total
$1,479,135.17
* All costs are estimates and are subject to final completion of construction and
installation of the Water System Upgrades.
** As of the date of the signing of this Agreement the construction and installation of the
Reservoir/Fire Pump upgrades have not been started or completed. The other upgrade
components have been completed.
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SCHEDULE "D"
COST SHARING METHODOLOGY
This Schedule has been prepared in order to supplement Section 7 and 8 of the
Agreement and it is intended to be read together with those Sections and the Agreement.
Together, this Schedule and Sections 7 and 8 set out a methodology to determine the
financing and cost - sharing obligations of the Developers, the Township, and the Future
Benefitting Owners of the Teskey Lands and the Rix Lands (as depicted on Schedule
"B ") who will derive a benefit from the Water System Upgrades.
1. Total Costs
The total costs of the Water System Upgrades have been estimated in accordance
with Schedule "C" to be $1,479,135.17. The estimated cost of the Outstanding
Upgrades that have not yet been installed or constructed is $812,846.88.
2. Proportionate Share of Water System Upgrades
The proportionate share of the Water System Upgrades has been calculated on a
per -lot basis, based on a full build -out scenario for the Warminster Settlement
Area (159 lots). The estimated total cost of connecting to the Water System
Upgrades, on a per lot basis is, $9,302.74, as detailed in the Chart below.
Chart 1: Estimated total cost of connecting to Water System
Upgrades
Homire Subdivision
Lot
%
Cost
28 17.6
$260,476.63
Meadow Acres Subdivision
71
44.7
$660,494.32
Isabella Subdivision
22
13.8
$204,660.21
Teskey Lands
29
18.2
$269,779.37
Rix Lands
9
5.7
$83,724.63
159
100.0
$1,479,135.17
Total
Cost per
Lot $9,302.74
12748514.1