HomeMy WebLinkAbout94-85
THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON
BY-LAW 94-85
Being a By-law to authorize the completion of
certain Works in Plans of Subdivision 10M-812,
10M-814 and 10M-827 and the resolution of certain
legal issues respecting the enforceability of the
Performance Guarantee for the completion of the
Works and the claims of certain contractors
respecting certain portions of the Works completed
to date.
WHEREAS the Director of Public Works and the Municipality's
solicitor have reported to Council on the possibility of resolution
of certain issues in connection with Plans of Subdivision 10M-812,
10M-814 and 10M-827 by agreement rather than by litigation.
NOW THEREFORE The Corporation of the Municipality of Clarington
hereby enacts as follows:
1. THAT the Chief Administrative Officer of the Municipality in
consultation with the Municipality's solicitor be authorized
to effect a settlement for the outstanding legal action
involving the Municipality wherein the Municipality is the
plaintiff and Anand Aggarwal and Lucy Kumar also known as
Lucyna Kumar are defendants (Court File No. 49978/93) and
wherein 772503 Ontario Ltd. is applicant and the Canadian
Imperial Bank of Commerce and the Municipality are respondents
(Court File No. 54185/93) on the following terms:
(a) Payment by Canadian Imperial Bank of Commerce to the
Municipality in trust in the minimum amount of
$675,000.00 in exchange for the return of Letters of
Credit No.'s T331343, T331365, T331367, T331336 and
T331341 presently deposited with the Municipality's
Treasurer as the Performance Guarantee for the completion
of the installation and construction of Works in Plans of
Subdivision 10M-812, 10M-814 and 10M-827 which payment
shall be disbursed in accordance with the Release
Agreement referred to in subparagraph 1(f) hereof;
(b) Mutual release by the Municipality and the Canadian
Imperial Bank of Commerce of any further claims against
each other relating to completion of the installation and
construction of Works in Plans of Subdivision 10M-812,
10M-814 and 10M-827 and/or the Performance Guarantee
therefore;
(c) Abek Real Estate Corporation and 772503 Ontario Ltd.
deposit the sum of $20,000.00 with the Municipality's
Treasurer as an occupancy deposit pursuant to the
Subdivision Agreement respecting Plans of Subdivisions
10M-812 and 10M-814 and which sum or portion thereof when
no longer required by the Municipality as an occupancy
deposit, shall be disbursed in accordance with the
Release Agreement referred to in subparagraph l(f)
hereof;
(d) The Municipality enter into a construction contract with
Goldmar Contracting Ltd. and McFaul Fencing Ltd. to
complete the outstanding Work in Plans of Subdivision
10M-812, 10M-814 and 10M-827 on a unit rate basis in the
form commonly applied on municipal works projects having
an estimated cost $350,652.00;
(e) Abek Real Estate Corporation and 772503 Ontario Ltd.
deliver to the Municipality transfer in fee simple and of
easements as required by the Subdivision Agreements
entered into with such owners respecting the lands now
comprising Plans of Subdivision 10M-812, lOM-814 and lOM-
827 free and clear of all encumbrances and in a form
satisfactory to the Municipality's Solicitor;
(f)
(g)
(h)
Page 2
The Municipality enter into a Release Agreement with all
contractors and subcontractors who have supplied services
or materials to an improvement for Abek Real Estate
Corporation or 772503 Ontario Ltd. or to their
contractor(s) or subcontractor(s) and who have claimed a
lien upon the premises comprising lands within Plan of
Subdivision 10M-812, 10M-814 and 10M-827 which have been
or are required to be transferred to the Municipality
free and clear of encumbrances and/or have claimed a lien
or the benefit of a trust against the Performance
Guarantees held by the Municipality to secure the
completion of the installation and construction of the
Works required upon such lands in a form satisfactory to
the Chief Administrative Officer in consultation with the
Municipality's solicitor and Municipal staff and
containing the following terms: (i) Verification and
acceptance of the amount of each contractor's or
subcontractor's claim by the others (ii) that the monies
received from the Canadian Imperial Bank of Commerce,
Abek Real Estate Corporation and 772503 Ontario Ltd. are
to be distributed first towards the Municipality's costs
to date resulting from the default of the completion of
the Works and the failure of the Canadian Imperial Bank
of Commerce to honour draws upon the Letters of Credit
deposited with the Municipality as the Performance
Guarantee; Secondly towards the cost of completion of the
Works and the balance to be distributed to such
contractors and subcontractors on a pro rata basis and
(iii) the release by the contractors and subcontractors
of any and all claims which they may have against the
Municipality including but not limited to (A) releases of
any claims for construction lien registered against title
to lands which have been or are to be transferred to the
Municipality, (B) withdrawal of written notices of a
lien, (C) the release of any claims of a trust against
the Performance Guarantee or any payment received by the
Municipality from the Canadian Imperial Bank of Commerce
and (D) the discontinuance of any legal proceedings
commenced against the Municipality;
Mutual Release by the Municipality and Abek Real Estate
Corporation, 772503 Ontario Ltd., Anand Aggarwal and Lucy
Kumar also known as Lucyna Kumar of any further claims
against each other relating to completion of the
installation and construction of Works in Plans of
Subdivision 10M-812, 10M-814 and 10M-827 and/or the
Performance Guarantee therefore; and
Such other requirements as the Chief Administrative
Officer in consultation with the Municipality's solicitor
and Municipal Staff requires in order to protect the
interest of the Municipality.
2. THAT the Mayor and Clerk be authorized to execute such
documentation and agreements with any or all the persons
referred to in this By-law which the Chief Administrative
Officer considers necessary to complete the arrangements
contemplated in paragraph 1 hereof.
By-law read a first and second time this 30th day of May, 1994.
By-law read a third time and finally passed this 30th day of
May, 1994.
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Mayor
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