Draft Servicing Agreement Template
The standardized legal agreement form to be signed between developers and the Town for site servicing.
P259
TOWN OF VIEW ROYAL SERVICING AGREEMENT
ENGINEERING FILE NO:
THIS AGREEMENT made the ___ day of ________, 20.
BETWEEN:
TOWN OF VIEW ROYAL 45 View Royal Avenue Victoria, BC V9B 1A6
("View Royal")
AND:
(the "Developer")
WHEREAS:
A. The Developer intends to develop the property located at ___________________________ more particularly described as:
(the "Land")
B. The Developer wishes to develop the Land (the "Development") and has requested approval of the Development by View Royal prior to the completion of all Works required to be constructed and installed by the Developer in connection with the Development;
C. View Royal has determined that the cost to View Royal of providing necessary services to the proposed Development would be excessive and View Royal does not have sufficient funds to pay for the cost of the Works;
D. The Developer has voluntarily agreed to install such Works which are necessary to serve the proposed Development and to waive any right the Developer may have to a contribution toward the cost of Works, and has requested that View Royal enter into this agreement with the Developer.
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the promises, covenants and agreements hereinafter set forth and other good and valuable consideration, View Royal and the Developer covenant and agree as follows:
DEFINITIONS
- In this Agreement:
(a) "Certificate of Completion" means confirmation in writing by the Developer's professional engineer or landscape architect, as applicable, that the Works and/or Landscaping, as applicable, have been constructed and installed by the Developer to the standards and specifications set out in the accepted design drawings attached to the Agreement as Schedule "A" and in accordance with the bylaws of View Royal, and which Certificate of Completion is required prior to the Director of Engineering being requested to issue a Certificate of Substantial Completion;
(b) "Certificate of Final Acceptance" means written confirmation to be issued by the Director of Engineering that View Royal has received the Certificate of Completion and the Certificate of Landscaping Maintenance, a Certificate of Substantial Completion has been issued by the Director of Engineering for the Works and/or Landscaping and the applicable Warranty Periods have expired;
(c) "Certificate of Substantial Completion" means the written approval of the Works and/or Landscaping, as the case may be, issued by the Director of Engineering upon Substantial Completion of the Works and Landscaping, the submission to View Royal of a Certificate of Completion and a Certificate of Landscaping Maintenance and the satisfactory inspection of the Works by View Royal in accordance with this Agreement;
(d) "Certificate of Landscaping Maintenance" means confirmation in writing by the Developer's professional landscape architect that the installed Landscaping has been established and maintained in accordance with Level 2 maintenance standards as outlined in the BC Landscape Standard (2012);
(e) "CRD" means the Capital Regional District;
(f) "Director of Engineering" means the Director of Engineering, as appointed from time-to-time by the Council of View Royal, or his or her designate;
(g) "Highway Access Fee" means the fee set out in Schedule "B" to cover the review and assessment by View Royal of each proposed new driveway access to the Land;
(h) "Highway Maintenance Security" means a security in the form of cash, or certified cheque in the amount set out in Schedule "B";
(i) "Landscaping" means the soft and hard landscaping, including required irrigation, set out in Schedule "A" to be installed in accordance with this Agreement;
(j) "Landscaping Security" means security in the form of cash, certified cheque or an unconditional, irrevocable automatically renewing letter of credit in the amount of one hundred and twenty per cent (120%) of the total cost of the Landscaping, being the amount set out in Section 15;
(k) "Landscaping Warranty Period" means a three (3) year period from the date of issuance of the Certificate of Substantial Completion in respect of the Landscaping;
(l) "Landscaping Warranty Security" means security in the form of cash, certified cheque or an unconditional, irrevocable letter of credit in the amount of ten per cent (10%) of the total cost of the Landscaping;
(m) "Replacement Landscaping Security" has the meaning set out in Section 4(c)(i);
(n) "Replacement Works Security" has the meaning set out in Section 3(c)(i);
(o) "Sanitary Sewer Connection Fee" means the fee set out in Schedule "B" to cover the assessment and inspection by View Royal of a new connection to the sanitary sewer main;
(p) "Substantial Completion" means the construction and installation of the required Works and/or Landscaping, as applicable, to the standards and specifications set out in Schedule "A" and this Agreement;
(q) "Warranty Periods" means the Works Warranty Period in respect of the Works and the Landscape Warranty period in respect of the Landscaping, as applicable;
(r) "Works" means the works, services and infrastructure set out in Schedule "A" which Works are to be constructed and installed in accordance with this Agreement;
(s) "Works Security" means security in the form of cash, certified cheque or an unconditional, irrevocable automatically renewing letter of credit in the amount of one hundred and twenty per cent (120%) of the total cost of all Works being the amount set out in Section 14;
(t) "Works Warranty Period" a one (1) year period from the date of issuance of the Certificate of Substantial Completion in respect of the Works; and
(u) "Works Warranty Security" means security in the form of cash, certified cheque or an unconditional, irrevocable automatically renewing letter of credit in the amount of ten per cent (10%) of the total cost of all Works exclusive of any Landscaping or fencing.
COVENANTS OF THE DEVELOPER
- The Developer acknowledges and covenants and agrees with View Royal that:
(a) certain of the Works are to be constructed and installed off of the Land;
(b) it is fully aware of the provisions of Part 26 of the Local Government Act (RSBC 1996) C. 323 (the "Act") related to the construction and installation of such Works;
(c) despite those provisions of the Act, it has voluntarily agreed to complete the design, construction and installation of the Works and Landscaping at its sole cost, regardless of whether the Works and Landscaping are located on or off the Land.
- The Developer covenants and agrees with View Royal:
(a) to design, construct and install, the Works to standards set out in the Bylaws of View Royal and to the satisfaction of the Director of Engineering and in accordance with the engineering drawings attached hereto as Schedule "A" and noted as "Final Revisions" related to the Works within (18) months from the date of execution of this Agreement. Should the Works as constructed prove to be in any way defective or should they not operate to the satisfaction of the Director of Engineering, then the Developer shall, at the Developer's expense, modify or reconstruct the Works so that the Works shall be fully operative and function to the satisfaction of the Engineer;
(b) that if the Works are not duly and properly completed within the time specified in Section 3(a) hereof, View Royal may, after 5 days notice, draw upon the Works Security and may complete the Works at the cost of the Developer and deduct from the Works Security the cost of such completion, and the balance of the Security Deposit shall be returned to the Developer, less any administration costs incurred by View Royal. If the Works Security is insufficient to cover the actual cost of View Royal completing the Works, then the Developer shall pay such deficiency to View Royal immediately upon receipt of the View Royal's bill for same. Should the Developer fail to pay such costs forthwith, View Royal may recover such outstanding costs by any means, including adding the costs to the Land, as taxes in arrears. It is understood that View Royal may do such work either by itself or by contractors employed by View Royal; and
(c) without limiting the rights of View Royal under Section 3(b), if the Works:
(i) have not been started within the time specified in Section 3(a), View Royal may review the estimated cost of completion of the Works and provide to the Developer at least 60 days prior to each anniversary of the date of execution of this Agreement, until all of the Works have been started, notice of a revised estimated cost of the completion of the Works and, upon receiving notice of the revised estimate the Developer shall deposit with View Royal a replacement security deposit (the "Replacement Works Security") in the amount of the revised estimate of the cost of completing the Works and, for the purposes of this Agreement, the Replacement Works Security shall become the Works Security and View Royal will return the original Works Security to the Developer following receipt of the Replacement Works Security; or
(ii) are in progress, but not completed within the time specified in 3(a), and the Developer has requested a reduction in the Works Security held by View Royal, View Royal may review the estimated cost of completion of the remaining Works and provide to the Developer, notice of the estimated cost of the completion of the remaining Works and may reduce the Works Security to an amount equal to 120% of the estimated costs of the remaining Works (the "Reduced Works Security") and, for the purposes of this Agreement, the Reduced Works Security shall become the Works Security;
- The Developer covenants and agrees with View Royal:
(a) to design, construct and install the Landscaping to View Royal's standards and to the satisfaction of the Director of Engineering and in accordance with the plans attached hereto as Schedule "A" and noted as "Final Revisions" related to the Landscaping within (18) months from the date of execution of this Agreement. Should the Landscaping be in any way defective, then the Developer shall, at the Developer's expense, modify or reconstruct the Landscaping so that the Works shall be fully operative and function to the satisfaction of the Director of Engineering;
(b) that if the Landscaping is not duly and properly completed within the time specified in Section 4(a) hereof, View Royal may, after 5 days notice, draw upon the Landscaping Security and may complete the Landscaping at the cost of the Developer and deduct from the Landscaping Security the cost of such completion, and the balance of the Security Deposit shall be returned to the Developer, less any administration costs incurred by View Royal. If the Landscaping Security is insufficient to cover the actual cost of completing the Landscaping, then the Developer shall pay such deficiency to View Royal immediately upon receipt of the View Royal's bill for same. Should the Developer fail to pay such costs forthwith, View Royal may recover such outstanding costs by any means, including adding the costs to the Land, as taxes in arrears. It is understood that View Royal may do such work either by itself or by Contractors employed by View Royal; and
(c) without limiting the rights of View Royal under Section 4(b), if the Landscaping:
(i) has not been started within the time specified in Section 4(a), View Royal may review the estimated cost of completion of the Landscaping and provide to the Developer at least 60 days prior to each anniversary of the date of execution of this Agreement, until all of the Landscaping has been started, notice of a revised estimated cost of the completion of the Landscaping and, upon receiving notice of the revised estimate the Developer shall deposit with View Royal a replacement security deposit (the "Replacement Landscaping Security") in the amount of the revised estimate of the cost of completing the Landscaping and, for the purposes of this Agreement, the Replacement Landscaping Security shall become the Landscaping Security and View Royal will return the original Landscaping Security to the Developer following receipt of the Replacement Landscaping Security; or
(ii) if the Landscaping is in progress but not completed within the time specified in Section 4(a), and the Developer has requested a reduction in the Landscaping Security held by View Royal, View Royal may review the estimated cost of completion of the remaining Landscaping and provide to the Developer notice of the estimated cost of the completion of the remaining Landscaping and View Royal shall reduce the Landscaping Security to an amount equal to 120% of the estimated costs of the remaining Landscaping (the "Reduced Landscaping Security") and, for the purposes of this Agreement, the Reduced Landscaping Security shall become the Landscaping Security.
The Developer must endeavour to remove all invasive species as listed by the "Invasive Species Council of British Columbia" from the Lands as well as the Town of View Royal Right of Way limits to the centre line of both Watkiss Way and Helmcken Road for the entire length of the proposed construction limits as submitted in Schedule A "Design Plans".
The Developer must connect all buildings and structures on or to be constructed on the Land to View Royal's drainage and sanitary sewer systems and the CRD water system.
The Developer shall, at its cost, be solely responsible for making all necessary arrangements for connecting the Land and any building or structure on or to be constructed on the Land to water services or extending waterworks with the CRD, and the CRD must confirm, in writing to View Royal, that the CRD has approved such connection or extension before the Director of Engineering will grant a Certificate of Substantial Completion for the Development.
The Developer shall, at its cost, be solely responsible for approaching all applicable agencies for input and where applicable approvals, as to their requirements relative to the proposed Development. Such agencies shall include, but may not be limited to, the Archeological Branch of the Ministry of Forest Land and Natural Resource Operations under the Heritage Conservation Act R.S.B.C. 1996 c.-187, Telus, B.C. Hydro, Shaw Cable and Fortis BC Gas.
The Developer will be solely responsible for strict adherence to all requirements of the Archaeology Branch of the Ministry of Forest Land and Natural Resources. The Developer shall indemnify and save harmless the Town of View Royal from any and all claims, damages, penalties, and fines as a result of work to be conducted by or on behalf of the Developer with respect to archaeological values within the Municipal Right of Way on the frontages of the Development.
The Developer acknowledges that the Town of View Royal recommended an Archaeological Impact Assessment (AIA) be performed prior to any off site construction servicing being installed, as the Right of Way on the eastern side of Watkiss Way is designated as a "high potential for archaeological site" by the Archaeology Branch of the Ministry of Forest Land and Natural Resources. View Royal acknowledges that the Stantec archeological report, commissioned by the Developer, indicated that the archeological potential in the areas of the proposed off-site services are considered to be low and no further archeological investigations were recommended.
The Developer shall provide construction contractors with copies of the applicable documentation issued by, and regulations of, View Royal, prior to proceeding with construction activities associated with the Works and Landscaping in order that they are aware of, and adhere to these requirements.
Prior to initiation of the construction and installation of the Works and Landscaping, the Developer shall provide View Royal with the following:
(a) proof of liability insurance coverage which insurance shall be in an amount not less than $5 million, provide that the insurance cannot be cancelled, must remain in effect until the issuance of the Certificate of Final Acceptance and name View Royal as an additional insured;
(b) a copy of a permit allowing work in View Royal's road allowance, which the Developer must apply to View Royal to obtain; and
(c) those fees and securities referred to in Schedule B.
The Developer must inform the Engineering Department, in writing, a minimum of forty-eight (48) hours prior to the commencement of any work on lands owned by View Royal and within View Royal road or utility rights-of-way. In the case of Works and Landscaping required to be undertaken on privately owned lands or within lands subject to right-of-way in favour of an agency other than View Royal, the Developer shall prior to commencement of such Work obtain, at the Developer's sole expense, all necessary easements or statutory rights of way from the respective land owners or agency and provide evidence of such approval satisfactory to View Royal.
The Developer will provide to View Royal, Works Security in the amount of ___________________________ to ensure the completion of the Works as designed on drawings provided by ___________________________ attached as Schedule "A".
The Developer will provide to View Royal, Landscaping Security in the amount of ___________________________ to ensure the completion of Landscaping as designed on drawings provided by ___________________________ attached as Schedule "A".
To lessen the impact and inconvenience that may be imposed on neighbouring property owners as a result of construction activities on the Land, the Developer shall:
(a) ensure unimpeded access to private properties within close proximity to the Land at all times, and prevent the parking of vehicles associated with construction activities in areas which may hinder access to private property; and
(b) provide at least 48 hours advance notice to all property owners who may be affected by any disruption of services (sanitary sewer, drainage, water, electrical, natural gas, cable television, etc.), which notice shall be approved by the Director of Engineering and shall contain all relevant information pertaining the disruption, including start and finish times and the frequency of the disruption.
The Developer shall not burn any debris on the Land.
At the sole discretion of the Director of Engineering, if installation of the Works and/or Landscaping result in road debris and/or damage, the Developer will maintain those portions of public roads and associated boulevards in the vicinity of the Land in an unobstructed and reasonably clean condition, free of debris or materials and in an undamaged state by sweeping, brushing, and washing (if permitted due to watering restrictions) until the issuance of the Certificate of Final Acceptance.
If the Developer fails to comply with Section 18 and does not take corrective action when requested to do so in writing by the Director of Engineering, View Royal may draw down on the applicable Works or Landscaping Security or Warranty Securities and undertake the repairs or cleaning and debris removal and deduct the costs plus an amount equal to ten percent of that cost from the Highway Maintenance Security.
Notwithstanding Sections 18 and 19, if an emergency exists where, in the opinion of the Director of Engineering any delay in repair would cause loss or damage, View Royal may cause repairs to be made without notice to the Developer and deduct the costs of those repairs from the Highway Maintenance Security and if such security is insufficient to cover such costs, to draw down on the applicable Works or Landscaping Security or Warranty Securities.
Upon issuance of a Certificate of Final Acceptance by View Royal, the balance of the Highway Maintenance Security will be refunded by View Royal.
The Developer shall implement sedimentation and erosion control measures to prevent debris and sediment from entering water that drains from the Land, and to prevent erosion that may contribute to such debris and sediment entering the water that drains from the Land, prior to the initiation of any construction activities on the Land, which measures shall be maintained throughout the duration of construction activities on the Land, including the construction of all buildings and structures on the Land.
During construction associated with development of the Land, including the construction of all buildings for which building permits have been issued by View Royal, the Developer shall ensure that survey posts that have been removed, damaged or buried temporarily are replaced as soon as possible.
During construction the Developer will have the design engineer or representative hold regular inspection meetings with the Director of Engineering or representative from View Royal and forward a copy of these inspection reports to the View Royal Engineering department.
The Developer must provide unabated access to the Works for inspections by the Director of Engineering, as stated in Land Use Bylaw 1990, No. 35 Section 65. (3):
"The Municipality shall have the right to appoint its own inspectors to inspect the Developer's Works from time to time and the Developer must pay to the Municipality, in the form of cash or certified cheque, an inspection fee in an amount equal to:
(c) two percent (2%) of the estimated cost of the installation of the required Works and services where the said installation cost is equal to or greater than $450,000", as set out in Schedule 'B'.
COVENANTS OF THE TOWN OF VIEW ROYAL
COMPLETION OF WORKS AND LANDSCAPING
Upon completion of the construction and installation of the Works and/or Landscaping, a Certificate of Completion or Certificate of Landscaping Maintenance, as the case may be, must be submitted to View Royal and the Developer must request an inspection of the Works and/or Landscaping by View Royal and correct any deficiencies that are identified, to the satisfaction of the Director of Engineering.
If the Director of Engineering is in any way dissatisfied with the Certificate of Completion or Certificate of Landscaping Maintenance, as the case may be or the result of the inspection referred to in Section 28, may, after seeking clarification in writing, at the cost of the Developer appoint its own professional Engineer or Landscape Architect in a third party review to inspect the Works and Landscaping to resolve differences.
Upon satisfactory completion of the Works and/or Landscaping, in accordance with this Agreement, the Director of Engineering will issue a Certificate of Substantial Completion for the Works and a Certificate of Substantial Completion for the Landscaping, as applicable. For certainty the Certificate of Substantial Completion for the Works and Landscaping may be issued separately.
Following the issuance of the Certificate of Substantial Completion and prior to the release of the Works Security or the Landscaping Security, the Developer shall:
(a) provide confirmation of the total cost of the Works and Landscaping in the form of an itemized statement which will include the final construction progress payment of all off-site design fees and inspection fees to the satisfaction of the Director of Engineering;
(b) deposit with View Royal the Works Warranty Security and Landscaping Warranty Security, as applicable; and
(c) submit to View Royal "As-Constructed" drawings consisting of two sets of full size (A1) and half size (11x17) prints signed and sealed by a Professional Engineer or Landscape Architect, as the case may be, and a DVD disk containing an AutoCAD 2004 DWG file or files of the Works or Landscaping, as the case may be.
WARRANTY PERIOD
The Developer must maintain the Works and Landscaping in complete repair throughout the applicable Warranty Periods.
The Developer must remedy any defects in the Works and Landscaping appearing within the applicable Warranty Periods and pay for any damage to other property resulting from or associated with failure of the Works and Landscaping.
If, during the Warranty Periods, the Developer neglects or fails to commence remedying any defects in the Works and Landscaping within 7 days of receipt of the written notice from the Director of Engineering, View Royal may undertake the work, repair, alteration, reconstruction or replacement utilizing the Works or Landscaping Warranty Security.
Notwithstanding Section 33 and 34, if an emergency exists where, in the opinion of the Director of Engineering, acting reasonably, any delay in repair would cause loss or damage, View Royal may cause repairs to be made without notice to the Developer and deduct the cost of those repairs from the Works or Landscaping Warranty Security, as applicable.
Concurrent with issuance of the Certificate of Final Acceptance, the Developer shall assign, transfer and convey to View Royal all of the Developer's right, title and interest in the Works and Landscaping, where such Works and Landscaping is not located on the Land.
Upon expiry of the respective Warranty Periods and at the request of the Developer, the Director of Engineering will inspect the Works and Landscaping and, if satisfied that the Works and Landscaping are operating properly and no deficiencies have been identified, will issue a Certificate of Final Acceptance for the Works and a Certificate of Final Acceptance for the Landscaping. For certainty, the respective Certificates of Final Acceptance may be issued separately.
Upon issuance of a Certificate of Final Acceptance by View Royal, View Royal will refund the balance of the applicable Works Warranty Security or Landscaping Warranty Security.
THE DEVELOPER FURTHER COVENANTS AND AGREES with View Royal that:
(a) In this section, "Excess or Extended Services" means:
(i) a portion of a highway system that will provide access to land other than the Land, and
(ii) a portion of a water, sewage or drainage system that will serve land other than the Land.
(b) The Developer and View Royal agree none of the Works provided by the Developer under this Agreement constitute Excess or Extended Services.
(c) The Developer and View Royal agree that, if a court of competent jurisdiction finds that, despite the parties' agreement set out in Section 39(b) above, all or part of the Works provided by the Developer under this Agreement constitute Excess or Extended Services, View Royal will collect charges payable for latecomer connections to or use of these Works during the period beginning when a Certificate of Substantial Completion is issued with respect thereto (the "Completion Date") and ending one day after the Completion Date.
GENERAL
The Developer hereby releases and forever discharges View Royal and its elected officials, officers, employees, servants, agents, successors and assigns from all manner of actions, causes of action, suit, debts, dues, accounts, bonds, covenants, contracts, claims and demands arising out of or in any way connected with the Development, including the installation of the Works by the Developer, with no contribution toward the cost of the Works by View Royal or any other person and, without limiting the generality of the foregoing, by reason of the failure by View Royal to impose or collect any latecomer charges from the owners of the lands which may connect to or use the Works.
View Royal has made no representations, covenants, warranties, guarantees, promises or agreements express or implied, with the Developer other than those contained in this Agreement.
On the request of View Royal, acting reasonably, the Developer must execute and deliver or use its best efforts to cause to be executed and delivered, all documents, instruments, easements, and statutory rights of way, and do and perform or cause or procure to be done, performed, executed and delivered all such acts and things to give full effect to the intent or meaning of this Agreement.
Time is of the essence with respect to this Agreement. If a delay in the construction of the Works or Landscaping is caused by reason of labour disputes, fire, acts of God, unusual delay by common carriers or any other act which, in the opinion of the Director of Engineering acting reasonably, is beyond the Developer's control, the Director of Engineering will extend the time for completion of the Works or Landscaping, as applicable, for a reasonable time.
Nothing contained or implied in this Agreement in any way prejudices or affects the rights and powers of View Royal in the exercise of its functions under any public and private statutes, bylaws, orders or regulations.
This Agreement shall enure to the benefit of and be binding on the Developer and View Royal and their successors, assigns, heirs, officers, employees and agents.
If any portion of this Agreement is declared or held to be invalid for any reason, the remainder of this Agreement remains in force and effect.
No amendment or waiver of any portion of this Agreement is valid unless it is in writing and executed by View Royal and the Developer.
Waiver of any default by either party shall not be deemed to be a waiver of any subsequent default.
No amendment or waiver of any portion of this Agreement is valid unless it is in writing and executed by View Royal and the Developer.
The following schedules form part of this Agreement:
Schedule 'A' - Copy of drawings for Works and Landscaping
Schedule 'B' - Summary of Fees and Securities
IN WITNESS of its provisions, this Agreement has been signed and executed by the parties:
The Corporate Seal of the TOWN OF VIEW ROYAL was affixed in the presence of its authorized signatories:
Mayor
Corporate Officer
Signed by the DEVELOPER on the ______ day of __________, 20 in the presence of:
SCHEDULE 'A'
DESIGN PLANS
RE: __________________________________________________________________
SCHEDULE 'B'
SUMMARY OF FEES AND SECURITIES
RE: __________________________________________________________________
The following is a summary of fees, charges and securities which must be deposited with the Town prior to initiation of construction and installation of the Works and Landscaping. This summary does not include any CRD DCCs for Water or any applicable Latecomer payments.
NON-REFUNDABLE PAYMENTS
REFUNDABLE PAYMENTS
TOTAL PAYMENTS REQUIRED:
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