Town of Fort Erie Community & Development Services Our Focus: Your Future Prepared for: Council-in-Committee Report No.: CDS-010-07 Agenda Date: February 5, 2007 File No.: D12-0048 Subject: PROPOSED MODEL HOME AGREEMENT BAYRIDGE CROSSING PHASE 2 DRAFT PLAN OF SUBDIVISION FOR LOTS 1, 16, 17, 25 AND 26. Summary of Recommendations: THAT a By-law be submitted to Council authorizing an agreement with 1650714 Ontario Inc. to permit up to five model homes in the Bayridge Crossing Draft Plan of Subdivision. List of Stakeholders: Town of Fort Erie Royal Valley (John Kendall) Prepared by: Submitted by: Approved by: Original signed by Joe Mrozek for Original signed by Original signed by Margaret Neubauer for Robert Romanuk Chief Building Official R. Mostacci, MCIP,RPP Director, Community & Development Services Harry Schlange, MBA Chief Administrative Officer RM:ggf
Community & Development Services Report No. CDS-010-07 Page 2 of 3 Purpose of Report A request has been received from John Kendall on behalf of 1650714 Ontario Inc. (Royal Valley Homes) to permit up to five model homes to be located on the subject property as for Bayridge Crossing Draft Plan of Subdivision. (Appendix 1) Background Royal Valley Homes is the developer of the Bayridge Crossing Draft Plan of Subdivision and is actively proceeding to meet the conditions of Draft Plan Approval for Phase 2 of this development. The applicant is proposing to construct a variety of single family home designs. In order to market the homes the applicant has requested permission to construct up to five model homes, which would represent the style of dwellings proposed. Council is considering the Subdivision Agreement this evening. Analysis The applicant is proposing to construct the model homes on lots within the boundaries of the proposed subdivision. All lots will front on newly created roads. Attached, as Appendix 2 is a Draft Agreement to permit same. As noted in the Agreement, conditional building permits would be issued to allow the buildings to be located on the subject land on a temporary basis. If the development does not proceed within the twoyear time frame, the Town will be able to draw on the Letter of Credit to remove the buildings. None of the units will be serviced with municipal services until such time as the Draft Plan of Subdivision has been registered and the servicing has been installed in order to allow the dwelling units to be capable of being serviced with full municipal services. Financial/Staffing Implications All costs with respect to the construction of the buildings are the responsibility of the developer. In addition, the developer is being required to provide a Letter of Credit or cash deposit in the amount of $25,000. collected in $5000 increments for each conditional building permit in order to insure that the units can be removed should the development not proceed. Building permit fees will be assessed in accordance with the fee schedule current at the time of permit application. Development charges and servicing permit fees will be assessed and collected prior to issuance of permits required prior to authorization of occupancy for each dwelling.
Community & Development Services Report No. CDS-010-07 Page 3 of 3 Policies Affecting Recommendation (s) The Zoning By-law permits the construction of up to five model homes subject to the terms established on a temporary basis within a developing Subdivision. The uses can be removed when the lots are sold. In this case, the units will be allowed to remain provided the conditions set out in Section 11 of the Draft Agreement have been completed to the satisfaction of the Town. Comments from Relevant Departments/Community and Corporate Partners The Agreement is being reviewed by the Town Solicitor and will include any changes that he recommends. Alternatives None recommended Conclusion In order to allow the developer to proceed with the construction of up to five model units, Staff are recommending that a By-law be presented to Council authorizing the Draft Agreement annexed to this report. Attachments Appendix 1 Bay Ridge Crossing Draft Plan of Subdivision Appendix 2 - Draft Agreement
THIS AGREEMENT made in duplicate this day of, 2007 authorized by By-Law No. xxx-07 of the Corporation of The Town of Fort Erie (the Agreement ), B E T W E E N 1650714 Ontario Inc. Hereinafter called the OWNER of the FIRST PART; - and- THE CORPORATION OF THE TOWN OF FORT ERIE, Municipal Centre, Fort Erie, Ontario, L2A 2S6; Hereinafter called the TOWN of the SECOND PART: WHEREAS the Owner warrants and represents that: a) 1650714 Ontario Inc. is the registered owner in fee simple in possession of the lands described in Appendix 1 annexed hereto; b) As of the date of execution of this Agreement and on the date of registration of this Agreement, 1650714 Ontario Inc. shall be a valid and subsisting corporation in good standing duly incorporated under the laws of the Province of Ontario; c) As of the date of execution of this Agreement and registration of this Agreement, there will be no outstanding claims, liens or encumbrances registered against the lands described in Appendix 1 annexed hereto save and except the following: NIL d) This Agreement shall take priority over any claims or encumbrances of any nature or kind registered prior to or subsequent to this Agreement against the lands described in Appendix 1 annexed hereto. Page 1
AND WHEREAS 1650714 Ontario Inc., the Builder wishes to construct five (5) model homes on the lands described in Appendix 1 annexed hereto; AND WHEREAS the Owner has no objection to the Builder constructing five (5) model homes on the lands described in Appendix 1 annexed hereto; AND WHEREAS Section 6.50 of Zoning By-law No. 129-90, as amended, of the Corporation of the Town of Fort Erie, provides that notwithstanding any other provision of the by-law, where a model home agreement has been executed (signed) by the owner, more than one single detached dwelling or semi-detached dwelling may be constructed on a lot prior to registration of the plan of subdivision subject to certain restrictions; AND WHEREAS the Town will grant conditional building permits to permit the proposed model home buildings subject to the mutual covenants and agreements set forth in this Agreement; NOW THEREFORE THIS AGREEMENT WITNESSETH THAT in consideration of the mutual covenants and agreements to be observed and performed by each of the Parties hereto, and in consideration of the sum of TEN ($10.00) DOLLARS of lawful money of Canada now paid by the Owner and the Builder to the Town (the receipt whereof is hereby acknowledged by the Town), the Parties hereto mutually covenant and agree as follows; 1. The covenants and agreements given herein by the Owner and the Builder shall be mutually binding on the Owner and the Builder. The parties hereby covenant and agree that the covenants contained in this Agreement are intended to run with the lands, and this Agreement shall enure to the benefit of and be binding upon them, their respective heirs, executors, administrators, successors and assigns, it being the express intention of the parties hereto that subsequent purchasers and mortgagees in possession shall obtain the benefit of and be bound by the provisions of this agreement. Page 2
2. The Lands affected by this Agreement (hereinafter referred to as the Subject Lands ) are as described in Appendix 1 annexed hereto. 3. The construction affected by this Agreement (herein referred to as the Subject Construction ) is that construction proposed in contemplated Permit Applications for five (5) model homes in the development known as Bayridge Crossing Phase 2. 4. The Town agrees to the issuance of conditional building permits, which will be considered by the Chief Building Official for the Town, for the Subject Construction to be located on the Subject Lands provided that the Owner and Builder agree to assume all risks involved in commencing construction before every requirement for a building permit has been met, and to this end hereby, the Owner and Builder shall at all times fully indemnify and save harmless the Town against all actions, suits, claims and demands whatsoever, which may be brought against or made upon the Town and from and against all losses, costs, damages, charges and expenses whatsoever which may be incurred, sustained or paid by the Town for or by reason of or on account of the issuance of the conditional permits contemplated herein to the Owner or the Builder, or anything and any matter relating thereto. The Owner and Builder hereby grant to the Town full power and authority to settle any such actions, suits, claims or demands on such terms as the Town may deem advisable. The Owner and Builder hereby covenant and agree with the Town to forthwith pay to the Town on demand all monies paid by the Town in pursuance of any such settlement and also such sum as shall represent the reasonable costs of the Town or its solicitors in defending or settling any such action, suits, claims or demands on a solicitor and own client basis. The Owner and Builder hereby further covenant and agree with the Town not to bring any action, suit, claim or demand whatsoever against the Town in connection with any provision of this agreement. 5. The Builder shall be entitled to build, pursuant to the aforesaid By-law, up to but not exceeding five (5) model home buildings on certain lots laid out on a Page 3
draft Plan of Subdivision of Bayridge Crossing prepared by Matthews, Cameron, Heywood Kerry T. Howe Surveying Ltd. Received by the Town on January 19, 2007, such lots/sites to be approved by the Town prior to construction. The Owner specifically agrees that before the Town can grant such approval the following must first occur, namely: (a) The Owner shall provide Cash Deposits or Letters of Credit to the Town in the amount of Five Thousand ($5,000.00) Dollars for each model home to be constructed, for a total of Twenty-five Thousand ($25,000.00) Dollars; (b) The Town shall have received adequate assurance that no trees or other natural growth will be destroyed or adversely affected by the development of the Subject Lands contemplated by this Agreement unless the Town so permits in accordance with a tree preservation and planting plan approved by the Town. 6. During such construction the Owner and Builder shall not cut down or destroy any trees or other vegetation unless first so permitted by the Town in its discretion and all model home buildings shall be sited accordingly. 7. The Town, Owner and Builder agree that the Owner and Builder shall not be permitted to make connection to municipal services (water and sewer) for any model home building. For greater certainty, the Town has no objection to all five (5) model homes being permitted to make connection to gas and hydro services. The connection to municipal services to the model home building shall first be approved by the Town. 8. The Owner and Builder acknowledge and agree that notwithstanding the types and/or nature of construction of the model home buildings, that said model home buildings shall be deemed to be in every way temporary and the Owner and Builder do hereby covenant and undertake to remove them either: Page 4
(a) When the development of the Subject Lands has been completed; or (b) In the event that the development does not proceed, within the next two (2) years from the date of this Agreement; whichever event shall first occur. In the event the model home buildings are removed, the site shall be restored to the predevelopment conditions present at the time of Permit Applications, and shall include the removal of all construction, the replacement of all vegetative matter, the stabilization of slopes and the restoration of drainage matters. Restoration shall commence within thirty (30) days of the date cited by the Chief Building Official. 9. If the Chief Building Official determines in his absolute discretion that the model home buildings have not been removed and/or the site restored as required by Article 8 of this Agreement, then the Chief Building Official may cause the buildings to be removed and the site restored. For this purpose, the Town, its employees and agents, and without limiting the generality of the foregoing, the Chief Building Official, an Inspector and their agents may enter upon the land and into any model home building or part thereof governed by this Agreement at any reasonable time without a warrant. For greater certainty, the Owner and Builder hereby authorize the Town to enter upon the Subject Lands through its employees and agents for any purpose whatsoever in relation to the removal of the buildings and/or restoration of the site and to take all steps that are necessary in response to the breach of Article 8 of this Agreement. 10. (a) If the Chief Building Official determines in his absolute discretion that the Subject Construction has not been removed or the site restored as required by Article 8 of this Agreement, in addition to any other remedies available to the Town and without limitation thereof, the Town may: Page 5
(i) draw on the Cash Deposits or Letters of Credit required in Paragraph 5(a) in whole or in part and the monies used to restore the site as provided for in Article 8 of this Agreement; (ii) undertake or complete any obligation of the Owner hereunder; (iii) issue a stop work order with respect to any further development of the Subject Lands; (iv) recover from the Owner and Builder all costs and expenses incurred by the Town, whether directly or indirectly, with respect to the default or the remedy thereof and collect such costs and expenses in like manner as municipal taxes; (v) revoke any building permit issued with respect to any structure on the Subject Lands; and (vi) refuse the issuance of any occupancy certificate for any structure on the Subject Lands. (b) Upon full compliance with this Agreement, the Owner shall be entitled to the release of the balance of the Cash Deposits or Letters of Credit and will be returned to the Owner at the address provided on the application for the building permit; (c) Should costs associated with the restoration of the site be incurred by the Town in excess of the amount of the Cash Deposits or Letters of Credit, the Town shall have a lien on the land for such amount and the amount shall be deemed to be municipal taxes and may be collected in the same manner and with the same priorities as municipal taxes. 11. Notwithstanding the provisions of Article 8 hereof, the obligation to remove the five (5) model home buildings shall be deemed to have been waived if all of the following requirements are met: Page 6
(a) The Subject Lands in question are zoned to permit the permanent use for which the type and nature of construction of the model home buildings is intended; (b) The model home buildings and Subject Lands meet the requirements of the Zoning By-law of the Town and are included in a plan of subdivision approved and registered in accordance with the provisions of the Planning Act, R.S.O. 1990, Chapter P.3; (c) Building permits are issued; (d) The model home buildings built meet any and all requirements of the Ontario Building Code, and the Town s requirements for the issuance of occupancy permits are met; (e) Any and all required municipal services are approved for connection to all of the model home buildings and; (f) Any and all required municipal fees and levies are paid. 12. The Owner and Builder hereby consent to the registration of this Agreement on the title of the Subject Lands at their expense. In addition, this Agreement shall not be amended or deleted from title without the consent of the Town. The Owner and Builder acknowledge that this Agreement shall run with the Subject Lands and bind successors and assigns for the benefit of the Town and its properties, consisting of but not limited to a system of municipal works and services adjacent to the Subject Lands. Notwithstanding the foregoing, this Agreement shall be released by the Town at the Owner s expense, upon completion by the Owner and Builder to the satisfaction of the Town of all obligations contained in this Agreement. 13. The Owner shall obtain the postponement to this Agreement of all encumbrances subsequent to and in priority to the Owner s title. In addition, immediately following registration of this Agreement, the Owner and Builder shall provide the Town with the certificate of a duly qualified solicitor certifying Page 7
that the Subject Lands are subject to the terms of this Agreement in priority to any other claims or encumbrances of any nature or kind. 14. If a Court of competent jurisdiction should declare any clause or part of a clause of this Agreement to be invalid or unenforceable, such clause or part of a clause shall not be construed as being an integral part of this Agreement or having persuaded or influenced either party to this Agreement to execute the same, and it is hereby agreed that the remainder of this Agreement shall be valid and in full force and effect. IN WITNESS WHEREOF the parties have executed the foregoing by the hand and seal of their duly authorized officers on the day and year first above written. 1650714 ONTARIO INC. John Kendall, President I have authority to bind the Corporation THE CORPORATION OF THE TOWN OF FORT ERIE Douglas G. Martin, Mayor Carolyn J. Kett, Town Clerk Page 8
APPENDIX 1 TO DESCRIPTION OF LANDS