HomeMy WebLinkAbout2007-142
THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON
BY-LAW NO. 2007-142
being a by-law to authorize the Mayor and the Municipal Clerk to execute
a Servicing Agreement for certain services to be constructed on Green
Road and Stevens Road on behalf of the Municipality of Clarington
WHEREAS Council has approved the recommendations contained in Report #PSD-
088-07 at its meeting on June 25,2007; and,
NOW THEREFORE the Council of The Corporation of the Municipality of Clarington
hereby enacts as follows:
1. THAT the Mayor and the Municipal Clerk are authorized to execute on behalf of
the Municipality of Clarington the Servicing Agreement between Players
Business Park Ltd., West Diamond Properties Inc., and Royal Bank of Canada
substantially in the form of the Servicing Agreement contained in Attachment 3 to
Report #PSD-088-07.
By-Law read a first time this
25th
day of
June
2007
By-Law read a second time this 25th
day of
June
2007
By-Law read a third time and finally passed this 25th
day of June
2007
SERVICING AGREEMENT
THIS SERVICING AGREEMENT made as of the 25th day of June, 2007.
BETWEEN:
PLAYERS BUSINESS PARK LTD. ("Players") and
WEST DIAMOND PROPERTIES INC. ("West Diamond")
(hereinafter collectively called the "Owners")
OF THE FIRST PART
- and -
THE CORPORATION OF THE
MUNICIP ALITY OF CLARINGTON
(hereinafter called the "Municipality")
OF THE SECOND PART
- and -
ROYAL BANK OF CANADA
(hereinafter called "Royal Bank")
OF THE THIRD PART
WHEREAS:
A. Principles of Understanding dated March 1, 2006 ("Principles") were made by the
Owners, the Municipality and 1613881 Ontario Inc. ("1613881"). They were registered in the
Land Registry Office for the Land Titles Division of Durham (No. 40) as Instrument No.
DR495847 on the title to the lands identified by the following Property Identification Numbers
("PIN").
PIN #
26612-0113
26612-0114
26612-0024
26613-0102
Owner
Players
West Diamond
Players
1613881 Ontario Inc.
B. The Principles were amended by the First Principles of Understanding Amendment
Agreement ("First Amendment Agreement") dated June 25, 2007 made between the Owners, the
Municipality, 1613881, Royal Bank of Canada and 672003 Ontario Inc. The First Amendment
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Agreement was registered on title to the land referred to in Recital A as Instrument No.
. The Principles as amended by the First Amendment Agreement are hereinafter
referred to hereinafter as the "Principles As Amended".
C. A Charge in favour of Royal Bank dated April 6, 2004 was registered in the Land
Registry Office on the title to the lands identified by the following PINs as Instrument No.
DR265437.
PIN #
26612-0113
26612-0114
26612-0024
Owner
Players
West Diamond
Players
D. Royal Bank has agreed with the Municipality to postpone its rights under the Charge
referred to in Recital C to the rights of the Municipality under the Principles As Amended and
under the Stevens Road Extension Agreement dated March 1, 2006 between Players, West
Diamond, Halloway Holdings Limited and the Municipality. A copy of the Stevens Road
Extension Agreement is contained in Schedule "H" to the Principles.
E. The Municipality intends to call for tenders and award a construction contract(s) for the
following works:
1. The "Green Road Reconstruction Works" between the Stevens Road Extension
and the Region of Durham ("Region") Highway No.2. The Green Road
Reconstruction Works are described in Schedule "A" hereto.
2. The Stevens Road Construction Works between Clarington Boulevard and Green
Road. The Stevens Road Construction Works are described in Schedule "B"
hereto.
F. In order to facilitate the development of the "Owners' Commercial Lands" (as defined in
the Principles As Amended) and in order and to satisfy requirements of the Region respecting the
construction and installation of a sanitary sewer main and water main and the requirement of the
Municipality respecting the construction and installation of a storm sewer main at the Owners'
request, the Owners and the Municipality have agreed that these Works may be constructed and
installed in sections of the road allowances of Green Road and Stevens Road at the cost of the
Owners. The sanitary sewer, storm sewer and water main works are described in Schedule "C"
hereto. These works referred to hereinafter as the "Sanitary, Storm and Water Works".
G. The execution of this Servicing Agreement by the Mayor and the Municipal Clerk on
behalf of the Municipality of Clarington is authorized by By-law No. 2007-142 passed by the
Municipality's Council at its meeting on June 25th 2007.
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NOW THEREFORE in consideration of the premises herein contained and the sum of
TWO DOLLARS ($2.00) and other good and valuable consideration (the receipt whereof by
each of the Parties is hereby acknowledged) each of the Parties covenants and agrees with the
other Parties as follows:
Recitals and Schedules
1. Each of Recitals D to F, inclusive, and the Schedules hereto are hereby incorporated into
the operative part of this Servicing Agreement and shall be construed and given the effect
of covenants contained in it. If there is an inconsistency between any of the Recitals and
of the following paragraphs, the text of the paragraph shall prevail to resolve the
inconsistency.
Financine: and Construction of Sanitary. Storm and Water Works
2.
(a)
The Owners shall pay to the Municipality the cost of construction and installation
of the Sanitary, Storm and Water Works as provided in this Servicing Agreement.
Conditional on the Performance Guarantee required by paragraph 3 as security for
the Owners' obligations to make the aforesaid payment being deposited with the
Municipality on or prior to June 25, 2007, the Municipality shall include the
construction and installation of the Sanitary, Storm and Water Works as
components of the Green Road Reconstruction Works and the Stevens Road
Construction Works tender package. Subject to the provisions of this Servicing
Agreement, the Sanitary, Storm and Water Works are intended to be included as
works to be constructed in a contract(s) with the successful bidder(s) in response
to the aforesaid tender call made by the Municipality.
(b) The Parties acknowledge that the Municipality' present intention is to call for
tenders for the Green Road Reconstruction Works and the Stevens Road
Construction Works on or prior to June 25, 2007 and to enter into a construction
contract or contracts with the contractor(s) to which the construction contract(s) is
(are) awarded on or before July 31, 2007.
(c) If the Owners do not make the payment referred to in paragraph 2(a) to the
Municipality on or before June 25, 2007, this Servicing Agreement shall
terminate. For clarity, on termination of this Servicing Agreement the
Municipality shall have the unfettered right to delete from the tender package
and/or the construction contract(s) referred to in paragraph 2(a) all reference to
the construction and installation of the Sanitary, Storm and Water Works. The
Owners shall indemnify the Municipality against all costs, losses and damages
including without limitation its reasonable legal fees and disbursements that may
be incurred by the Municipality resulting from the aforesaid deletion.
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Owners' Payment to be Secured by Performance Guarantee
3. The performance guarantee ("Performance Guarantee") referred to in the Servicing
Agreement to be provided by the Owners to the Municipality to secure their obligations
to the Municipality hereunder shall either be cash (which shall be deposited in a
segregated reserve account by the Municipality) or an irrevocable and unconditional
letter of credit issued by a bank listed in Schedule I or II of the Bank Act in a form and
containing terms and conditions that are acceptable to the Municipality's Director of
Finance. The amount of the Performance Guarantee shall be as provided for in the
"Sanitary, Storm and Water Works Cost Estimate" contained in Schedule "D" hereto and
shall be adjusted from time to time as provided in this Servicing Agreement.
Revised Sanitary. Storm and Water Works Cost Estimates and Additional Payments
4.
(a)
Prior to the Owners payment to the Municipality of the as-constructed costs of the
Sanitary, Storm and Water Works, the Municipality's Director of Engineering
Services ("Director") may from time to time give written notice to the Owner of
his revised cost estimate of the cost of such Works ("Revised Sanitary, Storm and
Water Works Cost Estimate"), together with an explanation of the reason for the
revised cost estimate. The amount to be paid by the Owners to the Municipality
for the construction and installation of the Sanitary, Storm and Water Works shall
be deemed to be the amount of the latest of the Sanitary, Storm and Water Works
Cost Estimate and the Revised Sanitary, Storm and Water Works Cost Estimate of
which written notice is given to the Owners by the Director. Following the giving
of notice pursuant to this paragraph, the latest Revised Sanitary, Storm and Water
Works Cost Estimate shall be deemed to be the Sanitary, Storm and Water Works
Cost Estimate for the purposes of this Servicing Agreement.
(b) If the Director gives written notice to the Owners of the Revised Sanitary, Storm
and Water Works Cost Estimate subsequent to the Owners having deposited the
Performance Guarantee with the Municipality pursuant to paragraph 3, the
Owners shall deposit with the Municipality an additional Performance Guarantee
in the amount of the increase in the Sanitary, Storm and Water Works Cost
Estimate within thirty (30) days of such notice being given.
As-Constructed Costs
5. Upon completion of the Sanitary, Storm and Water Works, the Director shall give the
Owners written notice that the Sanitary, Storm and Water Works have been completed.
No later than ten (10) days following the date on which this written notice is given to the
Owners, the Director shall give the Owners written notice of the as-constructed costs
thereof. If the as-constructed costs exceed the Sanitary, Storm and Water Works Cost
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Estimate then in force, forthwith after written demand is given them, the Owners shall
pay the Municipality any amount by which such as-constructed costs exceed such
Sanitary, Storm and Water Works Cost Estimate ("As-Constructed Payment"). If the
Director determines that the as-constructed costs are less than the Sanitary, Storm and
Water Works Cost Estimate then in force, the Municipality shall return any Performance
Guarantee not required for the payment of the cost of the Sanitary, Storm and Water
Works without interest to the Owners within thirty (30) days after the aforesaid written
notice is given to the Owners by the Director.
Use of Funds bv the Municipality
6.
(a)
The Municipality shall use the Performance Guarantee and the As-Constructed
Payment only for costs actually incurred in respect of the Sanitary, Storm and
Water Works.
(b) During regular business hours of the Municipality at a time to be arranged in
advance with the Director, the Owners may inspect copies of such documents a
may be reasonably required to verify the costs incurred by the Municipality
respecting the Sanitary, Storm and Water Works (including copies of invoices,
approved purchase orders, and/or certified progress certificates in respect of such
costs).
Consequences of Default
7. In the event that the Owners fail to provide any Performance Guarantee or make any
payments to the Municipality required pursuant to this Agreement within the time periods
required herein, the Owners in default shall not apply for or require the issuance of any
permit for the construction of or occupancy by or occupy any Large Format Retail Store
on any portion of the "Owners' Commercial Lands" (as defined in the Principles As
Amended) pursuant to the Ontario Building Code Act until such Performance Guarantee
or payments (including the payment of any interest that has accrued pursuant to
paragraph 8) have been fully deposited or made.
Unpaid Monies
8. Except as otherwise provided in this Servicing Agreement, the due date of any money
payable under it, unless a different due date is specified in this Agreement, shall be ten
(10) days after the date of the giving of written notice by the Municipality to the Owners,
as the case may be. Where the Owners are in default in respect of such payment, interest
shall be calculated and be paid to the Municipality by the Owners on all sums in default
at the same rate, and in the same manner, and at the same time as is the case with
municipal taxes which are in arrears at the date on which the default in question
commences.
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All Actions at Risk of Owners
9. All actions taken by the Municipality in respect of the Sanitary, Storm and Sewer Works
provided for in the Servicing Agreement are entirely at the risk of the Owners who shall
have no recourse against the Municipality except where loss or damage is caused by the
negligence of the Municipality, its officials, employees, agents, or contractors.
Ownership of Sanitary. Storm and Water Works
10. The Owners agree that when the construction and installation of the Sanitary, Storm and
Water Works are completed, the sanitary, sewer and water main shall be deemed to be
owned by the Region and the storm sewer shall be deemed to be owned by the
Municipality without compensation therefore being paid to the Owners either by the
Region or by the Municipality.
Actine: Reasonablv
11. All discretionary decisions of officials of the Municipality and the Municipality which
are referred to in this Agreement shall be deemed to be qualified by the words "acting
reasonably".
Notice
12. If any notice or other document is required to be or may be gIVen to or by the
Municipality or by any official of the Municipality to a party to this Servicing
Agreement, such notice shall be transmitted by telefax, mailed by first class prepaid post
or delivered to:
Players!:
West Diamond
Players Business Park Ltd.
1700 Langstaff Road
Suite 2003
Concord, ON L4K 3S3
Attention: Mr. Bruce Fisher
West Diamond Properties Inc.
30 Floral Parkway
Concord, ON L4K 4Rl
Attention: Mr. Robert DeGasperis
And:
Royal Bank
Royal Bank of Canada
180 Wellington Street West
5th Floor
Toronto, ON M5J 112
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Or,
Municipality: The Municipality of Clarington
40 Temperance Street
Bowmanville, ON L 1 C 3A6
Attention: Director of Planning Services
Fax: 905-623-0830
or such other telefax number or address of which any party has notified the other parties
in writing. Any such notice telefaxed or mailed or delivered shall be deemed good and
sufficient notice under the terms of this Agreement and if telefaxed or delivered prior to
4:30 p.m. on any business day (excluding Saturdays, Sundays and statutory holidays)
shall be deemed to have been received at the time of delivery or transmission and if
mailed by pre-paid registered mail, it shall be deemed to have been received on the third
business day (excluding Saturdays, Sundays and statutory holidays) following the
mailing thereof. Notwithstanding the foregoing, in the event that it may be reasonably
anticipated that due to Force Majeure any notice will not be received within the time limit
set out above, then such notice shall be sent by an alternate means of transportation which
may reasonably be anticipated will cause the notice to be received reasonably
expeditiously by the addressee.
Force Maieure
13. In this Servicing Agreement, the term "Force Majeure" means any delay for the duration
of the delay which is imposed by reason of strikes, lockouts, riots, wars or acts of military
authority, acts of public enemies, sabotage, epidemics, washouts, nuclear and radiation
activity or fallouts, rebellion or civil commotion, fire or explosion; flood, wind, water,
earthquake or other casualty, or an Act of God and any act, omission or event whether of
the kind herein enumerated or otherwise not within the control of a party to this
Agreement, none of which has been caused by the deliberate default or act or omission by
such party and none of which has been avoidable by the exercise of reasonable effort or
foresight by such party. The Municipality or other party to this Agreement, as the case
may be, shall notify the other parties to this Agreement of the commencement, duration
and consequence (so far as the same is within the knowledge of the Municipality or such
other party, as the case may be) of any Force Majeure affecting the performance of any of
its obligations hereunder within thirty (30) days of gaining such knowledge.
Postponement of Char!!:es
14. Royal Bank hereby postpones its rights under the Charge registered in the Land Registry
Office as Instruments No. DR 265437 to the rights of the Municipality under this
Agreement.
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Ree:istration
15. The parties hereto other than the Municipality consent to the registration of a Notice of
this Agreement as a charge against the title to the "Owners' Commercial Lands" (as
defined in the Principles). Forthwith after the Owners have satisfied their obligations to
the Municipality under this Servicing Agreement, the Municipality shall execute at the
Owners' written request, such documents prepared by the Owners as are necessary to
remove the registration of the Notice of this Agreement from title.
Time is of the Essence
16. Time is of the essence of the Servicing Agreement.
Authority of the Municipality
17. The parties hereto acknowledge and agree that the Municipality has authority to enter
into this Security Agreement, that every provision hereto is authorized by the law and
enforceable and that this Servicing Agreement is executed by the Municipality in reliance
on such acknowledgement and agreement.
Further Assurances
18. The parties hereby covenant and agree to forthwith execute and provide all further
documents, instruments and assurances as may be necessary or required in order to carry
out (and give effect to) the true intent of this Agreement, and to effect the registration
against and release from title to the lands subject to this Agreement of such notices or
other instruments in accordance with the provisions of this Agreement.
Enurement
19. This Agreement shall enure to the benefit of and be binding on the Parties hereto, and
their respective successors and assigns.
Counterpart Executions
20. This Agreement may be executed in counterparts.
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IN WITNESS WHEREOF the parties hereto have hereunto have set their hands and
seals the day and year first above written and the parties hereto have hereunto affixed their
corporate seals by the hands of their proper officers duly authorized in that behalf.
SIGNED, SEALED AND
DELIVERED
In the presence of:
) THE CORPORATION OF THE
) MUNICIPALITY OF CLARINGTON
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) Name:w t..<../~ ~,(}ffId1-L Title:~
~ I/We have authority to bind the Corporation
)
~ ROYAL BANK OF CANADA _
~d--%tc~(.~~
) SENIOR ACCOUNT MANAGER
~ Name: DEBBIE STALEY Tit .
) I/We ha~_~WIW3UPrpor tion
D.
:I'.?l/J Title: IJtdd.:J~"'#1
to bind the Corporation
Name: ILLI'ff? /.J6/rJ,,,'l..'- Title: Y'4d~,4Yl
VWe have authority to bind the Corporation
SINC.
A/iv(/:fMtI Title: ~ /~
to bind the Corporation
SCHEDULE "A"
THIS SCHEDULE IS SCHEDULE "A" to this Servicing Agreement which has been
authorized and approved by By-Law 2007-141 of the Corporation of the Municipality of
Clarington, enacted and passed the 25th day of June, 2007
Description of
Green Road Reconstruction Works
The Works shown on the following drawings prepared by D.G. Biddle & Associates
Limited as finally approved by and on file with the Municipality's Director of Engineering
Services:
. Underground Services and Roadworks - Green Road North, Drawing No. Cl, March
2007
. Underground Services and Roadworks - Green Road North, Drawing No. C2, March
2007
SCHEDULE "B"
THIS SCHEDULE IS SCHEDULE "B" to this Servicing Agreement which has been
authorized and approved by By-Law 2007-141 of the Corporation of the Municipality of
Clarington, enacted and passed the 25th day of June, 2007
Description of
Stevens Road Construction Works
The Works shown on the following drawings prepared by D.O. Biddle & Associates
Limits as finally approved by and on file with the Director of Engineering Services:
. Underground Services and Roadworks -Stevens Road, Drawing No. C3, March 2007
. Underground Services and Roadworks - Stevens Road, Drawing No. C4, March 2007
SCHEDULE"C"
THIS SCHEDULE IS SCHEDULE "C" to this Servicing Agreement which has been
authorized and approved by By-Law 2007-141 of the Corporation of the Municipality of
Clarington, enacted and passed the 25th day of June, 2007
Description of
Sanitary. Storm and Water Works
Storm
Supply and install storm sewer pipe, cone. Cl.65-d (unless otherwise noted) up to 825mm
dia. bedding as specified on drawings
Supply and install storm sewer manholes, concrete precast unless otherwise specified up
to 1800mm dia.
Break into existing manhole, connect, parge and rebench
Camera inspection (inc!. CB leads)
Sanitary
Supply and install sanitary sewer pipe, PVC SOR-35 (unless otherwise noted) up to
425mm dia. bedding as specified on drawings
Supply and install sanitary sewer manholes, 1200mm dia. (OPSO 701.010) precast
(unless otherwise specified) (incl. water tight locking cover OPSO 401.030)
Camera Inspection
Watermain
Supply and install 400mm CPP watermain including all appurtenances, Le. temporary
blow-offs, bends, swabbing, pressure-testing at operating pressure
Supply and install hydrants along 400mm dia. CPP watermain including temp. flushing
hydrant
General
All servicing requirements for the Sanitary, Storm and Water Works shown on the
Drawings referred to in Schedules "A" and "B" are not described above in this Schedule "C".
Schedule "D"
THIS SCHEDULE IS SCHEDULE "D" to this Servicing Agreement which has been
authorized and approved by By-Law 2007-141 of the Corporation of the Municipality of
Clarington, enacted and passed the 25th day of June, 2007
Sanitary. Storm and Water Works
Cost Estimate
Estimated
Value
10% Contingency
Sub- Total
$ 160,209.50
$ 200,952.20
$ 108,595.45
$ 469,757.16
$ 46,975.72
$ 516,732.88
1
2
3
Storm Sewers
Sanitary Sewers
Water Distribution System
Sub- Total
20% Engineering
Sub- Total
$ 103,346.58
$ 620,079.46
6% G.S.T.
37,204.77
$ 657,284.23
$ 657,284.23
Total Estimated Cost of Services
Total Performance Guarantee Required