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HomeMy WebLinkAboutEGD-044-07 CJgg.#]gfon REPORT ENGINEERING SERVICES DEPARTMENT Date: GENERAL PURPOSE AND ADMINISTRATION COMMITTEE Monday June 18,2007 Resolution #~01 Meeting: Report #: EGD-044-07 File #: D.02.33.019 By-law #: Subject: DECOE COURT SUBDIVISION, COURTICE PLAN 40M-2104 COMPLETION OF ALL OUTSTANDING WORKS Recommendations: It is respectfully recommended that the General Purpose and Administration Committee recommend to Council the following: 1. THAT Report EGD-044-07 be received; 2. THAT the developer's Letter of Credit be drawn in the full amount; 3. THAT the Director of Engineering Services be authorized to expend said monies pursuant to all obligations incurred or to be incurred by the Corporation of the Municipality of Clarington in accordance with the Subdivision Agreement between 1413345 Ontario Inc. and the Corporation of the Municipality of Clarington; and 4. THAT 1413345 Ontario Inc. and their surety (Scotiabank) be advised of Council's decision and be provided with a copy of Report EGD-044-07. a ~..:... ~ Reviewed by: Franklin Wu Chief Administrative Officer ~ "Submitted by. A. . Cannella ~o Director of Engineering Services ASC/jo May 31,2007 CORPORATION OF THE MUNICIPALITY OF CLARINGTON 40 TEMPERANCE STREET, BOWMANVILLE, ONTARIO L 1C 3A6 T 905-623-3379 F 905-623-9282 Report #EGD-044-07 Page 2 1.0 BACKGROUND 1.1 The Corporation of the Municipality of Clarington entered into a Subdivision Agreement, registered August 14, 2002, with 1413345 Ontario Inc. to develop lands by plan of subdivision, located in Courtice and described as Plan 40M- 2104 (Attachment 1). The agreement required the developer to construct all roadworks, including hot-mix paving, sidewalks, curb and gutter, street trees,a storm drainage system and streetlights, hereinafter referred to as the 'Works'. 1.2 The "Initial Works" were completed in 2002. By 2005, staff began to receive requests and complaints from residents to complete the "Final Works". These requests were forwarded to the developer but no action was taken until a warning letter was issued on July 19, 2005 (Attachment No.2). This triggered the completion of some, but not all, of the Final Works. 1.3 In 2007 the developer was again advised to complete all of the Final Works and in this regard, a final notice letter was issued April 24, 2007 (Attachment No.3). The letter set out a deadline of May 18, 2007 to complete.all outstanding Works. The letter further advised that if the Works were not completed by that deadline, a report would be presented to Council recommending drawing on securities and having the Works done by others, as provided in the Subdivision Agreement. Unfortunately, no additional work was done, nor has the developer responded in any manner to the Municipality. 2.0 REVIEW AND COMMENT 2.1 The outstanding Works include, but are not necessarily limited to, driveway apron preparation and paving, boulevard tree planting, chain link fencing and review and possible repair of any deficient Initial Works. The minimum cost to complete these Works is estimated at approximately $19,000.00 which includes a 30% management fee, as set out in the Agreement. Report #EGO-044-07 Page 3 2.2 In addition, Council should be aware that the Municipality has received notices of claims from the contractors who completed some of the Final Works in 2006, advising they were not paid. The total outstanding amount of these claims is approximately $50,000.00. These claims were not filed under the Construction Liens Act R.S.O.1990, Chapter C.30 as amended, and therefore, the Municipality cannot payout the claims. However, there is a potential for legal action by the contractors against the lands, the developer and the Municipality, and therefore, the Municipality may be exposed to future legal costs to defend any action. 2.3 There is presently a Letter of Credit from the developer, valued at $78,388.04, in favour of the Corporation of the Municipality of Clarington (S18572/176839 Scotiabank). 2.4 Under Section 5.17 of the Subdivision Agreement (Attachment 4), the Director of Engineering Services has the authority to order the Work completed at the expense of the developer, SUbject to the approval of Council and upon written notice being given to the developer and his surety. 3.0 CONCLUSION 3.1 It is recommended that the securities be drawn in full, and that the department of Engineering Services be authorized to complete all Works in accordance with the Subdivision Agreement, at the full expense of the developer. Attachments: Attachment 1 - Key Map Attachment 2 - Copy of previous correspondence to the developer Attachment 3 - Copy of previous correspondence to the developer Attachment 4 - Copy of pertinent excerpts from the Subdivision Agreement List of Interested Parties: 1413345 Ontario Inc. Scotiabank -- ---- Claret Rd. /l"fU1holl -___ ~ and COUrt 't:I ClI o 0:::: ~ u 'i c C1I 0:::: "---"-'- Whittaker Avenue - Plan 40M-2104 B III - Decoe Court 5 - ~ c .c u C1I C1I a:l 'ti 0:::: oS! ~ c o - III e Co ]V w~s s DRAWN BY: E.L. DATE: June 12, 2007 r/ "i REPORT EGD-044-07 '~:~I~:m'l A TT ACHMENGT"~~~~I'I4OM_2104~d l\ ( C!fllillgrdn ATTACHMENT NO.:2 REPORT NO.: EGD-044-07 Apri124,2007 1413345 Ontario Inc. c/o Remax 1413 King Street East Oshawa, ON L 1 E 2J6 ATTENTION: Mr. Bob Best Dear Mr. Best: RE: DECOE COURT SUBDIVISION, PLAN 40M.2104 COMPLETION OF FINAL WORKS FILE: 0.02.33.019 I n accordance with Section 5.17 of the subdivision agreement, it is the Director's opinion that unreasonable delays have occurred in the completion of the above noted Works. A previous notice was sent to you on July 19, 2006 (attached) setting out a deadline for the completion of all Works no later than August 18, 2006. Unfortunately, this deadline was not met. The outstanding works include: · Apron preparation and asphalt paving · Boulevard tree planting · Chain link fence installation In order to avoid default of the Subdivision Agreement, we require all remaining works to be completed to our satisfaction by May 18, 2007. Any work undertaken will require full time supervision by your consulting engineer. ' Should the work not be fully completed to our satisfaction by that date, a report will be presented to Municipal Council advising of your default and recommending the Municipality draw on your securities, as provided in the Subdivision Agreement. s~. Norman A. Clark, C.E.T. Manager of Construction pc: A.S. Cannella, Director of Engineering Services Larry Tracey, D.G. Biddle & Associates CORPORATION OF THE MUNICIPALITY OF CLARINGTON 40 TEMPERANCE STREET. BOWMANVILLE, ONTARIO L 1C 3A6 T 905-623-3379 I"~ ( Cl~n c ATTACHMENT NO.:3 REPORT NO.: EGD-044-07 July 19, 2006 1413345 Ontario limited c/o Remax 1413 King Street East Courtice, ON L 1 E 2J6 ATTENTION: Mr. Bob Best Dear Mr. Best Re: Decoe Court Subdivision Plan 40M.2104 Completion of Final Works File: 0.02.33.019 Per section 5.17 of the development agreement, it is the Municipality's position that unreasonable delay has occurred in the completion of the above-captioned Works. As such, you are hereby notified that all remaining works are to be immediatelv scheduled, with a completion date no later than August 18, 2006. We require a written schedule for our approval by July 24, 2006. Failing to comply with these requirements will result in immediate action by this office, to complete these Works through provisions in the development agreement Sincerely, ~~ Adrian Coolen, C.E.T. Construction Coordinator AHC/dg Pc: Tony Cannella, Director of Engineering Norm Clark, Manager of Construction Larry Tracey, D.G. Biddle & Associates CORPORATION OF THE MUNICIPALITY OF ClARINGTON 40 TEMPERANCE STREET, BOWMANVILLE. ONTARIO L 1 C 3AB T (905) 623-3379 ATTACHMENT NO.:4 REPORT NO.: EGD-044-07 Pig. 48 Seauence of Construction of Works Following the lsauance of an Authorization to Commence Works, the Owner shall proceed in good faith to construct and Install all of the Works referred to In the Authorization to Commence Works continuously and In accordance with the timing and sequence therefore set out In the Schedule of Works. 5.15 ComDletlon Time for Construction of Works Within two (2) years of the date of the issuance of an Authorization to Commence Works, the Owner shall complete the construction and Installation of all of the Works authorized in such Authorization to Commence Works with the ex~ptlon of the curbs, sidewalks, final coat of asphalt, final lot grading, driveway approaches, sodding and tree planting which may be completed later If done so In accordance with the provisions of the Schedule of Works. 5.16 Additional Work Until the conclusion of Maintenance Guarantee Period referable thereto, If In the opinion of the Director, any Incidental additional work Is required to provide for the adequate operation, functioning and maintenance of any of the Works, the Owner, at Its cost, shall construct and Install such .additlonal facilities and perfonn such additional work as the Director may request from time to time by written notice given to the Owner. 5.17 IncomDlete or Faulty Works and Liens (1) Without derogating from the other provisions of this Agreement, If. In the opinion of the Director. (1) the Owner Is not constructing and installing or causing to be constructed or Installed any of the Works required by this Agreement so that it or they will be completed within the time specified for such completion in the Schedule of Works. or (2) the Works or any component(s) thereof are beiilg Improperfy constructed or Installed, or (3) the Owner neglects or abandons the said Works or any part of them before completion, or (4) unreasonable deJay occurs in the construction or installation of the Works, or (5) for any other reason the Works are not being constructed or installed properiy and prompUy and in full compliance with the provisions of this Agreement, or (6) the Owner neglects or retu881 to reconstruct or reinstall any of the Works or component(s) thereof which may be , rejected by the Director as being defective. deficient, or unsuitable, or (7) the Owner otherwisa defaults in perfonnance of this Agreement, the DIrector may give the Owner notice In writing of his opinion respecting any such maUer. Following Page 50 the later to occur of the expiry of ten (10) business days, excluding Saturdays and Sundays and statutory holidays following the giving of such notice plus the expiry of any additional period as may be specified in the notice given to the Owner by the Director, the Municipality, at the cost and expense of the Owner, may engage a contractor. supplier of services or materials and such workmen. and purchase such services. supplies and/or services as in the' opinion of the Director are required for the completion of the construction and Installation of the Works and all components thereof and the performance of all covenants of the Owner relating to the Works as provided by this Agreement. In cases of an emergency or urgency, or in order to preserve the Integrity of the Works or any component thereof as determined by the Director in his absolute discretion. any deficiency(s) or defect(s) in the Works, and any failure to complete the Works and all components thereof in accordance with this Agreement may be corrected, remedied or completed by the Municipality Its contractors, suppliers and employees at the cost of the Owner without prior notice to the Owner, provided that forthwith after the Municipality so acts, the Director shall give written notice to the Owner of his determination as aforesaid, describing the action taken by the Director, and the cost of correcting or remedying the deficiency or default in question or the cost of completing the Works and the components thereof, as the case may be. For the purposes of this paragraph 5.17(1) the cost of any work which ,the Municipality undertakes under this paragraph 5.17(1) shall be determined by the Director In his absolute discretion. It is understood and agreed by the Parties that the costs for which the Owner is responsible under this paragraph 5.17(1) shall include a management fee payable to the Municipality either of,thirty (30%) percent of the contractor's charges to the Municipality (including any charges for overhead and profit) or, if such work is undertaken by the Municipality, thirty (30%) percent of all costs incurred by the Municipality to correct or remedy the deficiencies or defect or to complete the Works and all components thereof as the case may be. The Owner shall pay the Municipality an amount equal to the cost of all Works and components thereof. and the cost of correcting or remedying all deficiencies and defects referred to in this paragraph 5.17(1) which have been incurred by the Municipality or are estimated in the Director's absolute discretion to be likely to be incurred by the Municipality forthwith after the Director gives the Owner written demand for payment of such cost. If the amount paid Is based on the Director's estimate as aforesaid, forthwith after actual costs are more than the estimated costs, the Owner shall forthwith pay the Municipality an amount equal to the difference between them. If the actual costs are less than the estimated costs, the Municipality shall forthwith refund the difference between them to the Owner. Page 51 In the event that (1) a claim for a lien in respect of the Works or any component thereof Is registered against the title to any land vested or which should have been vested in the Municipality or Is flied with the Municipality. or (2) the Municipality receives written notice of a claim of an alleged beneficiary of a statutory trust under the Construction Lien Act, such registration, filing or notice shall constitute a default in performance by the Owner of this Agreement. In any such case, the Director may notify the Owner in writing of such default. If the Owner fails to discharge the lien or claim as the case may be within ten (10) business days, excluding Saturdays, Sundays and statutory holidays. after the giving of such notice plus any further period of time as may be specified in the notice. then the Municipality in its absolute discretion either may (1) pay the full amount of the claim and security for costs into a Court of competent jurisdiction in order to obtain an order vacating such claim for lien, (2) discharge the claim in full by paying the amount claimed or In part by paying a portion thereof or (3) draw the full amount of the claim in cash from a letter of credit deposited with the Municipality as the security for the Performance Guarantee and hold the cash in a deposit account of the Municipality as the security for the Performance Guarantee in respect of the claim in question. The Municipality may draw on and appropriate the whole or any portion(s) of the Performance Guarantee and the Security for the Maintenance Guarantee for the purpose of making payment ~nder this paragraph 5.17(2). The Owner shall indemnify the Municipality against the costs and expense incurred by the Municipality In making pa~ment pursuant to this paragraph 5.17(2) forthwith after the Director gives the Owner written notice requiring him to do so. In the event that the Municipality draws on and appropriates any portion of the Performance Guarantee or the Security for the Maintenance Guarantee for any of the aforesaid purposes, forthwith after the Director gives written notice to the Owner requiring it to do so, the Owner shall reinstate the Performance Guarantee and/or the Security for the Maintenance Guarantee. as the case may be, to the full amount(s) required under the provisions of this Agreement. 5.18 AcknowledGement Re8D8ctlnG Emergency etc. ReD8lrs The Owner acknowledges that if in cases of emergency or urgency or in order to protect the integrity of the Works or any component thereof. the Director acts to correct. remedy or repair any deficiency(s) or defect(s) In the Works. neither an entry on the Lands or any portion of them nor any such . action by the Director or any pallO" authorized to undertake the same by the Director shall be deemed to be an acceptance of any of the Works by the Municipality, nor an assumption by the Municipality of any responsibility or liability in connection therewith. or a relea.. by the Municipality of the Owner from any of its obligations under this Agreement.