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2003-109 THE CORPORATION OF THE TOWNSHIP OF ORO-MEDONTE BY-LAW NO. 2003-109 Being a By-Law to Authorize the Execution of a Road Improvement Agreement (Line 1 North) between The Corporation of the Township of Oro-Medonte, and FSP Holdings Incorporated (Settler's Ghost Golf Course) WHEREAS authority to enter into Site Plan Control Agreements is provided for in Section 41 of The Planning Act, R.S.O., 1990, c. P. 13, as amended, and Council deems it necessary to enter into a Site Plan Control Agreement on the lands described herein; AND WHEREAS FSP Holdings Inc. entered into a Site Plan Agreement with the Township of Oro-Medonte on October 15, 2003; AND WHEREAS as a condition of the Site Plan Agreement, FSP Holdings Inc. is required to enter into a Road Improvement Agreement with the Township of Oro- Medonte for the upgrade of Line 1 North; NOW THEREFORE the Corporation of the Township of Oro-Medonte hereby enacts as follows: 1. THAT the Township enter into the Road Improvement Agreement attached hereto as Appendix "A"; 2. THAT the Mayor and Clerk are hereby authorized to execute the Road Improvement Agreement on behalf of the Corporation of the Township of Oro-Medonte; 3. THAT the attached Appendix "A" shall form part of this By-Law; 4. THAT this By-Law shall come into force and take effect upon being enacted by Council. By-law read a first and second time this 5th day of November, 2003. By-law read a third time and finally passed this 5th day of November, 2003. THE CORPORATION OF THE TOWNSHIP OF ORO-MEDONTE I ~- ~CALif Ma r, J. Neil Craig . ROAD IMPROVEMENT AGREEMENT THIS AGREEMENT made this I)i'>-. day of 'iJo';'''''\':'H ,2003. BET WEE N: FSP Holdings Inc. hereinafter called the "Owner" OF THE FIRST PART - and - THE CORPORATION OF THE TOWNSHIP OF ORO-MEDONTE hereinafter called the "Municipality" OF THE SECOND PART WHEREAS the Owner proposes to operate a golf course on Lot 41 & Part E % Lot 42 Concession 2, being Part 1,51 R-30187, Township Oro-Medonte. ' AND WHEREAS as a condition of the Municipality granting its approval to the operation of the golf course, the Municipality requires the Owner to enter into this Agreement to provide for road improvements at the Owner's expense in the immediate vicinity of the golf course, as per Schedule "A". 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) of lawful money of Canada now paid by the Municipality to the Owner (the receipt whereof is hereby acknowledged), THE OWNER AND THE MUNICIPALITY HEREBY COVENANT AND AGREE WITH ONE ANOTHER AS FOLLOWS: I. SCOPE OF AGREEMENT 1.1 Conformity with Aqreement - the Owner covenants and agrees that all work performed pursuant to this Agreement shall be in conformity with the specifications accepted by the Municipality. 1.2 Reliance Upon Representations - the Owner 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 Municipality's standards. b) The Municipality has entered into this Agreement in reliance upon these representations. 1 .3 Schedules Attached - the following Schedules are attached to this Agreement: Schedule "A" - Description of Works and Schedule of Works Schedule "B" - Cash Deposits and Security 2. CONDITIONS PRIOR TO EXECUTION OF AGREEMENT BY THE MUNICIPALITY 2.1 Prior to the execution of this Agreement by the Municipality, the Owner shall: 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. ~ 3. ROAD IMPROVEMENTS - ON MUNICIPAL PROPERTY 3.1 !he Owner will constr~ct and install, at its expense, the hereinafter-required road Improvements. Suc.h. Improvements shall be constructed in accordance with the standards and speCIfications required by the Municipality to the satisfaction of the Public Works Superintendent. These improvements may be summarized as follows: a) See Schedule "A" - upgrading Line 1 North from County Road #22 400 m +/_ northerly. b) Dust Suppression - controlling dust by using an approved dust suppressant on the road under construction. 3.2 The Owner 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 Public Works Superintendent. 4. EMERGENCY SITUATION 4.1 If, as a result of any work undertaken by the Owner or its servants or agents, there is, in the opinion of the Public Works 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 Owner, but notice shall be given to the Owner at the earliest possible time. 5. INSURANCE CERTIFICATE AND POLICY 5.1 Policvof Insurance - the Owner shall lodge with the Municipality on or prior to the start of construction, 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 Owner 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. 5.2 Comprehensive General Liabilitv - such policy shall carry limits of liability 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) THE CORPORATION OF THE TOWNSHIP OF ORO-MEDONTE 5.3 Certificate of Coveraqe - any certificate of coverage filed with the Municipality shall specifically contain confirmation that the coverage includes (a), (b) and (c) above. 5.4 The Owner 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. 5.5 Confirmation of Premium Payment - the Owner 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. 2 ~ 5.6 Claim in Excess of Policy Limits - the issuance of such policy of insurance shall not be ~onstrued as rel~evl~g the Owner from responsibility for other or larger claims, If any, or for which It may be held responsible. 5.7 Noti?e of.Can?ellation - the insurance company shall agree to notify the Municipality within fifteen (15) days of any cancellation or expiry of said Insurance policy. 6. CONSTRUCTION. COMMENCEMENT AND COMPLETION 6.1 The Owner is proposing to phase construction of the improvements, commencing construction in the Spring of 2004, with completion in the Fall of 2005, as per Schedule "A". 7. EXPENSES TO BE PAID BY THE OWNER 7.1 Every provision of this Agreement by which the Owner is obligated in any way, shall be deemed to include the words "at the expense of the Owner", unless the context otherwise requires. 7.2 The Owner 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. 7.3 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. 7.4 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 Owner and/or carry out on-site inspections of the work performed, the Municipality will advise the Owner accordingly of this need, and the costs of such outside Engineers so engaged shall be the responsibility of the Owner. The Municipality may require a deposit for this purpose. 8 CASH DEPOSITS AND SECURITY 8.1 The Owner shall lodge with the Municipality, those cash deposits and security more particularly described in Schedule "B" and at the dates specified therein. 8.21n the event that the expenses of the Municipality exceed the amount of the cash deposits or security set out in Schedule "B" attached, the Owner shall pay such excess charges within thirty (30) days after demand by the Municipality. 8.3Construction Lien Sub-Search - shall be done to determine that no construction liens have been filed with respect to the Municipality. 8.4 Acceptance of Improvements - the acceptance of the Road Improvements shall be in the reasonable discretion of the Public Works Superintendent. 9 APPLICATIONS OF LETTER OF CREDIT AND SECURITY 9.1 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 Owner. 3 ~ 10 REALIZATION OF SECURITY OR DEPOSITS 10.1 Default - if, in th~ event of default of the Owner under any of the provisions of this Aweement, I~ becomes necessary for the Municipality to realize on its secunty or deposits, then the Municipality (its servants, agents or sub-c~ntractors) shall, if the Municipality so elects, have the right and privilege at a!1 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 Owner under this Agreement. 10.2 Exceedinq Cost Estimates - if the costs of completing such work or improvements exceed the amount of security held by the Municipality, such excess shall be paid by the Owner 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. 10.3 Save Harmless - the Owner, 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 sub-contractors 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 sub-contractors. 10.4 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. 11 REALIZATION ON LETTER OF CREDIT 11.1 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. 12 ESTOPPEL OF OWNER 12.1 The Owner 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 rnay be pleaded as an estoppel against the Owner in any such proceedings. 13 TIME OF THE ESSENCE 13.1 The parties hereto agree that time shall be of the essence in the Agreement. 14. INTERPRETATION 14.1 Provided, and it is hereby agreed, that in construing these presents, the word "Owner" and the personal pronoun "he" or "his" relating thereto and used therewith shall be read and construed as "Owners" and "his", "hers", "its", or "their", re~pectively 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. 14.2 And that all covenants, rights, advantages, privileges, immunities, powers and things hereby secured to the Municipality shall be equally secured to and exercisable by its successors and assigns as the case may be. 4 ~ 14.3 And that all covenants, liabilities and obligations entered into and imposed hereunder upon the Owner, 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. 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: By the Owner on the I)""'" day of I,)c),,; ",\"^b \:'(- ,2003. FSP Holdings Inc. Per: //i!11,,::..-,.,,(f:A~- lanaB'ertram Has the aulhorily to bind Ihe Corporation . ht~ By The Corporation of the Township of Oro-Medonte on the > ,2003. day of ~~ ~",~~r THE CORPORATION OF THE TOWNSHIP OF ORO-MEDONTE Per: ~- 11J.~ (~\L:17 J6 eil,Craig, Ma or i Per: rP../L Marilyn nnycook, CI k 5 SCHEDULE" A" THIS IS SCHEDULE "A" TO THE ROAD IMPROVEMENT AGREEMENT BETWEEN FSP HOLDINGS INC. AND THE CORPORATION OF THE TOWNSHIP OF ORO- MEDONTE DESCRIPTION OF WORKS AND SCHEDULE OF WORKS 2004 Filter cloth nine (9) metres wide; gravel surface eight (8) metres wide; 150mm thick of 16mm Granular "AU on Line 1 North from County Road #22, 400m northerly. 2005 Surface from Line 1 North 400m +/- with a single high float surface and a single 10mm clear chip for the second surface. 6 SCHEDULE "B" THIS IS SCHEDULE "B" TO THE ROAD IMPROVEMENT AGREEMENT BETWEEN FSP HOLDINGS INC. AND THE CORPORATION OF THE TOWNSHIP OF ORO- MEDONTE CASH DEPOSITS AND SECURITY The Owner 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 (1) 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. Prior to execution of this Agreement, the Owner shall deposit a $30,000.00. Letter of Credit with the Municipality as security to guarantee performance of his construction obligations. 3. The Letter of Credit shall remain with the Municipality until all provisions and obligations of the Owner, as set out in this Agreement, have been fulfilled. 7