HomeMy WebLinkAbout95-115 THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON
BY-LAW 95-115
Being a By-law to authorize the execution of an Agreement
between Royal Bank of Canada and the Municipality of Clarington
respecting the completion of outstanding works in the
Willowbrook Gardens Subdivision Agreement - Plan 40M-1676.
THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON HEREBY ENACTS AS
FOLLOWS:
1. THAT the Mayor and Clerk are hereby authorized to execute on behalf of the
Corporation of the Municipality of Clarington, and seal with the Corporate Seal,
an Agreement to implement the recommendations contained in Report WD-37-95
respecting the completion of Bradshaw Street, with Royal Bank of Canada.
2. THAT the Agreement attached hereto as Schedule "A" farms part of this By-law.
By-law read a first and second time this 17th day of July, 1995.
By-law read a third time and finally passed this 17th day of July, 1995.
Mayor
This Agreement made as of the 17th day of July, 1995:
BETWEEN:
The Corporation of the Municipality of Clarington
(hereinafter called "The Municipality")
of the First Part
- and -
Royal Bank of Canada
(hereinafter called "Royal")
of the Second Part
- and -
621182 Ontario Limited
(hereinafter called "Liza")
of the Third Part
WHEREAS:
A. The Municipality and Ashdale Capital Corporation Ltd. ("Ashdale")have entered
into a subdivision agreement (the "Ashdale Subdivision Agreement") respecting the
development, construction and installation of Works (as such term is defined in the Ashdale
Subdivision Agreement) (the "Ashdale Works") in respect of lands (the "Ashdale Lands") now
laid out as Plan 40M-1676 in the Municipality of Clarington, in the Regional Municipality of
Durham;
B. Ashdale was and continues to be in default of its obligation to construct and install
the Ashdale Works;
C. After delivering notice of such default to Ashdale the Council of the Municipality
authorized the Municipality's Treasurer on two separate occasions to draw upon letter of credit
No. P26010T06206 (the "Letter of Credit") deposited with the Municipality as a Performance
Guarantee (as such term is defined in the Ashdale Subdivision Agreement) for a total amount
drawn of$1,894,188.83 (the "Drawn Funds");
Page 2
D. The Municipality and Liza have entered into a subdivision agreement (the "Liza
Subdivision Agreement") respecting, inter alia, the development, construction and installation
of the north portion of the Bradshaw Street Urban Upgrading Work (as such term is defined in
the Liza Subdivision Agreement) in respect of the lands (the "Liza Lands") in the Municipality
of Clarington, in the Regional Municipality of Durham designated as Parts 1, 2, 3 and 4 on Plan
1OR-4019. For the purposes of this Agreement "Liza Works" means the development,
construction and installation of the north portion of the Bradshaw Street Urban Upgrading Work
(as such term is defined in the Liza Subdivision Agreement;
E. Royal is (1) the registered owner of a charge/mortgage of land registered against
title to each of the Ashdale Lands and the Liza Lands, (2) has executed each of the Ashdale
Subdivision Agreement and the Liza Subdivision Agreement as mortgagee and (3) was the
issuing bank for the Letter of Credit;
F. Royal has requested that a portion of the Drawn Funds be returned to it subject
to the covenants, undertakings and obligations of Royal as set out in this Agreement; and
G. This Agreement is authorized by By-law No.95-115 of the Municipality passed
on the 17th day of July, 1995.
NOW THEREFORE WITNESSETH THAT in consideration of the sum of Ten Dollars
($10.00) paid by each party to the other, the mutual covenants and agreements contained herein
and other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Parties agree as follows:
1. The Parties hereto agree that the recitals contained herein are true in substance and in
fact.
2. Royal hereby acknowledges and agrees that all actions taken to date by the Municipality
and its officials pursuant to the rights and obligations of the Municipality under the
Ashdale Subdivision Agreement including but not limited to making draws upon the
Letter of Credit were at all times proper and in accordance with the rights of the
Municipality under the Ashdale Subdivision Agreement.
3. Royal shall pay to the Municipality within fourteen (14) days of presentation of
appropriate invoices, all reasonable legal and consulting costs or miscellaneous costs
Page 3
incurred or to be incurred by the Municipality as a result of the default of Ashdale in
completing the Ashdale Works as required by the Ashdale Subdivision Agreement.
4. Royal shall (1) on or before April 30, 1996 enter into a construction contract(s) (the
"Construction Contract") setting out specifications satisfactory to the Director for the
completion and installation of the Ashdale Works and the Liza Works, and (2) complete
the (a) Ashdale Works (including the south portion of the Bradshaw Street Urban
Upgrading Work and Storm Sewer Oversizing Work) and (b) the Liza Works in
accordance with the schedule determined by the Director of Public Works of the
Municipality (the "Director") and annexed hereto as Schedule "A". The Municipality
requires that Royal and the contractor(s) who are party to the Construction Contract enter
into an agreement with the Municipality in a form satisfactory to the Director permitting
the Municipality, to (i) assume the rights of Royal under the Construction Contract and
(ii) require such contractor(s) to complete the Construction Contract if Royal shall be in
default in completing the Ashdale Works and/or the Liza Works in accordance with this
Agreement and such default shall not have been remedied within fourteen days of Royal
having received notice thereof in writing from the Director.
5. Royal hereby consents to the Treasurer of the Municipality making the following
payments from the Drawn Funds:
Payments Made
i) Consumer's Gas Invoice $ 3,005.72
ii) G.M. Sernas Invoices 38,616.86
iii) Peto MacCallum Invoices 2,495.72
iv) Bennett Paving 159,147.53
v) George Moore Electric 1,258.06
vi) J.D. Barnes Surveying 1,542.00
vii) Ron Robinson Ltd. 1,970.00
viii) Advertising Costs 603.48
ix) Sunland Landscape 5,760.00
X) Shibley Righton Invoices (to Nov. 2, 1994) 9,867.74
xi) Snowclearing Invoices 4,977.23
Net GST on above items 6.405.74
Total: $235,650.08
Additional Payments Required
i) Soper Creek Contribution $132,400.00
Page 4
ii) Regional Work at Bradshaw St. 25,716.31
iii) Clarington Planning Invoice 106.88
iv) Clarington Hydro Invoices 268.69
V) Clarington Management Fee 39,371.52
Total: $197,863.40
6. Royal agrees to indemnify and save harmless the Municipality from any and all actions,
claims, liabilities, losses, damages and expenses including reasonable legal fees which
arise pursuant to the Construction Lien Act in respect of the supply of labour, services
and materials to date upon the Lands pursuant to the requirements of the Ashdale
Subdivision Agreement, provided that Royal at its cost may obtain an order of a court
of competent jurisdiction dismissing any such claims against the Municipality. The
Municipality shall cooperate at the cost of Royal in obtaining such order or orders. The
Municipality confirms that it has not received notice of any such claims or actions except
for the following:
a. Letter dated March 30, 1992 to the Town of Newcastle by Direct Equipment
Ltd.;
b. Letter dated June 21, 1993 by Pilen Construction of Canada Limited to the Town
of Newcastle;
C. Letter dated August 19, 1993 from Berlin & Azoulay, Barristers and Solicitors
for Cana-Drain Services Inc. to The Corporation of the Municipality of
Clarington; and
d. Letter dated August 23, 1993 from G.M. Sernas & Associates Ltd. to the
Municipality of Clarington (collectively the "Construction Lien Claims").
7. Royal shall obtain and deliver to the Director all engineering drawings prepared by G.M.
Sernas & Associates Ltd., Consulting Engineers respecting the Ashdale Works and the
Liza Works and shall have assigned to the Municipality the benefits of all rights of Royal
associated with such drawings free and clear of encumbrances or claims.
8. The Parties acknowledge that during the installation of a portion of the Ashdale Works
by Ashdale or its agents certain equipment owned by Bell Canada had been damaged.
Royal agrees to indemnify and save harmless the Municipality from any claim by Bell
Page 5
Canada (the 'Bell Claim") or its agents for the cost of the repair or the replacement of
such equipment provided that Royal at its own cost may defend against such claim.
9. The Municipality shall rely upon Royal's indemnity in respect of the Construction Lien
Claims and the Bell Claim and shall not withhold reduction or release of the Ashdale
Replacement Performance Guarantee or the Liza Replacement Performance Guarantee
(each as hereinafter defined) by reason only that such claims have not been released or
dismissed by court order.
10. Royal shall at its own expense comply forthwith with a Notice to Comply issued on
October 25, 1993 and Property Standards Order issued on December 2, 1993, both
pursuant to the Municipality's Property Standards By-law in respect of violations of such
by-law upon the Lands.
11. Upon the execution of this Agreement, Royal shall deliver to the Municipality
unconditional and irrevocable letters of credit issued by Royal and containing terms
satisfactory to the Municipality's Treasurer in the minimum amount of(i) Eight Hundred
and Fifty-Nine Thousand, Two Hundred and Thirty-Seven Dollars and Fifty Cents
($859,237.50) (the "Ashdale Replacement Performance Guarantee") and (ii) Two
Hundred and Seventy Thousand Dollars ($270,000.00) (the "Liza Replacement
Performance Guarantee") as security for the performance by Royal of its obligations
pursuant to this Agreement. The Ashdale Replacement Performance Guarantee shall also
be deemed to be the Performance Guarantee for the purposes of the Ashdale Subdivision
Agreement and the Liza Replacement Performance Guarantee shall also be deemed to be
the Performance Guarantee for the purposes of the Liza Subdivision Agreement and each
may be reduced or released only in accordance with the provisions of the Ashdale
Subdivision Agreement or the Liza Subdivision Agreement, respectively, provided, that
notwithstanding any provision of the Liza Subdivision Agreement, the Liza Replacement
Performance Guarantee shall be security for the Liza Works only and shall not be
security for any other obligation whatsoever under the Liza Subdivision Agreement.
Except as modified by this Agreement and subject to the foregoing restrictions on the
Liza Replacement Performance Guarantee the provisions of the Ashdale Subdivision
Agreement respecting the Performance Guarantee (as defined in the Ashdale Subdivision
Agreement) continue to apply with necessary modification to the Ashdale Replacement
Performance Guarantee and the provisions of the Liza Subdivision Agreement respecting,
the Performance Guarantee (as defined in the Liza Subdivision Agreement) continue to
apply to any remainder of such Performance Guarantee and with necessary modification
to the Liza Replacement Performance Guarantee. If Royal shall default in the
Page 6
performance of any of its obligations pursuant to this Agreement, then after five (5) days
written notice to Royal of any default hereunder made by any official of the
Municipality, the Municipality' Treasurer may present the Ashdale Replacement
Performance Guarantee and/or the Liza Replacement Performance Guarantee to Royal
for payment in an amount determined by the Municipality's Treasurer to be sufficient for
purposes of correcting such default by Royal to complete the Ashdale Works and/or the
Liza Works as the case may be.
If in the opinion of the Director, acting reasonably, having regard to the contract price(s)
of the Construction Contract or increases in the Southam Construction Cost Index-Ontario
applied to the Works Cost Estimate (as defined in the Ashdale and Liza Subdivision
Agreements, as the case may be) and after inclusion of amounts for contingencies, over-
runs, taxes and a management fee (as defined in section 5.17 of the Ashdale and Liza
Subdivision Agreements), the Ashdale Replacement Performance Guarantee and/or the
Liza Replacement Performance Guarantee are insufficient in amount to secure the
obligations of Royal hereunder or under the Ashdale or Liza Subdivision Agreement, as
the case may be, then the Director shall notify Royal of any required increase in the
amount of the Ashdale Replacement Performance Guarantee and/or the Liza Replacement
Performance Guarantee and Royal shall deliver an unconditional and irrevocable letter(s)
of credit in the amount of such required increase issued by Royal and in a form
satisfactory to the Municipality's Treasurer to the Municipality within seven (7) days of
such notice.
12. The Municipality's Treasurer shall as soon as reasonably practical deliver to Royal
payment in an amount equal to the amount of the Drawn Funds less such amounts as
have been specifically authorized to be paid from the Drawn Funds by this Agreement,
together with interest in an amount to be determined by the Municipality's Treasurer but
not to exceed interest which has accrued to the Municipality from the deposit of the
Drawn Funds into the Municipality's account. The amount of accrued interest is
estimated to be $131,510.80 as of the date hereof.
13. Liza enters into this Agreement to:
a. covenant and agree to the Liza Subdivision Agreement being amended by the
applicable provisions of this Agreement;
b. the Liza Works being developed, constructed and installed by Royal in
accordance with this Agreement; and
Page 7
C. consent to the Municipality drawing upon the Liza Replacement Performance
Guarantee in accordance with this Agreement.
14. Wherever and to the extent that any provision of this Agreement conflicts with any
provision of the Ashdale Subdivision Agreement or the Liza Subdivision Agreement, the
respective provision of this Agreement shall prevail.
15. Any notice, request, communication or demand under this Agreement shall be in writing
and shall be considered properly delivered when given or served personally or by
registered mail to the Municipality at 40 Temperance Street, Bowmanville, Ontario,
Attention: Ms. Patti Barrie, Municipal Clerk; to Royal at Royal Bank of Canada, 20
King Street West, 9th Floor, Toronto, Ontario M5H 1C4, Attention: Mr. R.A. Geofrey,
Senior Account Manager and to Liza at 30 Westheim Court, # 9, Richmond Hill,
Ontario, L4B 1B9. Such notice, request or demand shall be deemed to have been
delivered on the date it is delivered if given or served personally or on the third day
following mailing, if it is mailed. If at any time notice is delivered by mail and there
is any cessation (whether anticipated or existing) of mail service affecting the delivery
of such notice, the notice shall not be deemed to have been delivered until five (5)
business days after the date that normal mail service is restored.
16. Whenever and to the extent any party is prevented, hindered or delayed in the fulfilment
of any obligation hereunder or the doing of any work by reason of force majeure (which
shall not include financial inability), that party's obligation shall be postponed and each
party shall be relieved from any liability and damages or otherwise for breach thereof for
so long as and to the extent such prevention, hindering or delay continues to exist.
17. This Agreement shall be governed by and interpreted in accordance with the laws of the
Province of Ontario and the Parties submit to the jurisdiction of the courts of the
Province of Ontario in order to enforce this Agreement.
18. Unless the context otherwise requires when used in this Agreement, the singular includes
the plural and the masculine includes the feminine.
19. Royal acknowledges and agrees that the Municipality has authority to enter into this
Agreement, that every provision hereof is authorized by the law, is fully enforceable by
the Parties and this Agreement is made by the Municipality in reliance on the
acknowledgement and agreement of Royal as aforesaid.
Page 8
IN WITNESS WHEREOF the Parties hereto have hereunto set their hands and seals the
day and year first above written and the Parties hereto have hereunto affixed their corporate seal
by the hands of their proper officers duly authorized in that behalf.
THE CORPORATION OF THE
MUNICIPALITY OF CLARINGTON
By:
Diane Ham , mayor
And By.
P tti e, er
ROYAL BANK nu CANADA
By:
am .._. a- ..��Y
Title:
And B
N L.J.COUL
Title: vice President
Real Estate SanMV
2
6211$8 ONTARIO INUTED
By:
Nam k: Sharo h &U\r i
Title: president
And By:
Name: F arz rivarz
Title: Secretary/Treasurer
rr.�.
SCHEDULE "A"
Schedule of Work
Underground servicing to start June 7, 1996
Year one road works to start July 12, 1996
Base asphalt paving to be completed by August 9, 1996
AGREEMENT made as of this 30th day of April , 1996.
BETWEEN:
THE CORPORATION OF THE MUNICIPALITY
OF CLARINGTON
(hereinafter called "The Municipality")
OF THE FIRST PART
and
ROYAL BANK OF CANADA
(hereinafter called "Royal")
OF THE SECOND PART
WHEREAS:
A. The Municipality, Royal and 621182 Ontario Limited have entered into an
agreement made as of the 17th day of July, 1995 (the "July Agreement")
providing inter alia for the construction and installation of the Ashdale
Works and Liza Works (each as defined in the July Agreement) in accordance
with the schedule set out therein,
B. The July Agreement also provides that the Municipality shall be a party to a
construction contract for the Ashdale Works and Liza Works and that the
Municipality shall have the benefit of any performance bond or insurance
benefitting Royal under such construction contract;
C. Royal has entered into a construction contract with a contractor (the
"Contractor") for the construction and installation of the Ashdale Works and
the Liza Works (the "Contract");
D. True copies of the Contract have been or will be delivered to the Municipality
by Royal; and
E. The parties are entering into this Agreement to give effect to the intentions of
the July Agreement.
NOW THEREFORE WITNESSETH that in consideration of the premises and
covenants hereinafter expressed and the sum of TWO ($2.00) DOLLARS of lawful
money of Canada now paid by each of the parties to the others (the receipt whereof
by each party is hereby acknowledged), the parties hereto covenant and agree to and
with each other as follows:
1. Royal represents and warrants to the Municipality that the recitals contained
herein are true in substance and in fact.
2. Upon the delivery of this Agreement to the Municipality Royal shall also
deliver to the Municipality a performance and maintenance bond or bonds
from the Contractor which may name Royal as a beneficiary thereof and shall:
a. name the Municipality as a beneficiary thereof;
b. be in an amount or a total amount not less than the total of the
contract price for the Contract; and
C. be in a form and be issued by a surety company satisfactory to the
Director of Public Works of the Municipality (the "Director") acting
reasonably and without delay.
3. If in the sole opinion of the Director acting reasonably Royal has failed to
perform its obligations arising out of the July Agreement, the Director may at
any time and from time to time notify the Contractor in writing (the
"Notification") that the Municipality will from such time onward act as the
agent of Royal with exclusive authority for all purposes to give instructions
under the Contract to the Contractor. The Municipality shall not be
responsible for the payment of any amount to the Contractor pursuant to the
Contract up to the Notification except such sums for which the Municipality
may be liable pursuant to the Construction Lien Act (Ontario) or other
applicable laws. After Notification the Municipality shall be responsible for
the payment of work done subsequent to the Notification pursuant to the
Contract in accordance with its terms. Forthwith after Notification, the
Director or his designate acting reasonably shall quantify the work completed
under the Contract prior to Notification and give written notice thereof to
Royal and the Contractor. Royal shall be deemed to accept such written notice
of quantities as accurately stating those quantities. Royal agrees that, after
Notification, the Contractor shall accept the instructions of the Director or his
designate (which designate shall be G. M. Sernas & Associates Ltd. or any
party appointed in their stead by the Municipality, in which event the
Contractor shall no longer be obliged or bound to accept the direction of Royal
or any consultant appointed by Royal), correct all deficiencies, perform all
warranties and perform the outstanding work pursuant to the Contract.
4. Whether or not Notification is given the Municipality shall be a beneficiary
of all warranties contained in the Contract whether such warranties are made
by the Contractor or by other suppliers of materials or services to the
Contractor.
5. The Municipality shall be a named insured in all policies of insurance
required to be maintained by the Contractor pursuant to the Contract.
Forthwith after execution of the Contract by the Contractor and its delivery to
the Municipality, Royal shall cause the Contractor to deliver a copy of such
policy or policies of insurance to the Municipality certified by the insurer and
signed by an officer of the insurer.
6. Royal hereby acknowledges, covenants and agrees:
a. that, after Notification, this Agreement shall be and constitute the
direction and sole and sufficient authority to the Contractor to deal
with respect to all matters of the Contract exclusively with the
Municipality after Notification and the Contractor shall and is hereby
irrevocably authorized to rely upon any Notification from the
Municipality without requiring any proof of default by Royal under the
July Agreement;
b. that after Notification the Municipality may exercise any of Royal's
rights, powers, authority and discretion pursuant to the terms of the
Contract;
C. to give prompt notice to the Director of any claim or litigation with
respect to the Contract and of any default by the Contractor with respect
to the Contract;
d. execute and deliver to the Municipality at Royal's sole cost and expense
all such further assurances as the Director may reasonably require to
give effect to the July Agreement or this Agreement;
e. after Notification at all times perform and observe all of Royal's
obligations contained in the Contract or imposed by the laws of the
Province of Ontario; and
f. without the prior written approval of the Director, acting reasonably
and without delay, not to waive any material failure of the Contractor
to perform its obligations under the Contract or permit anything
allowing the Contractor to terminate the Contract, or consent to any
assignment of the Contract by the Contractor.
7. In the exercise of the powers granted to the Municipality in this Agr eei ent,
no liability all be asserted or enforced against the Municipality, X31 such
t3' g
liability being hereby expressly waived and released by Royal provided that
the Municipality complies with this Agreement. The Municipality shall not
be obligated to perform or discharge any obligation or liability under the
Contract or this Agreement and the Contractor shall look strictly to Royal for
the performance or discharge of all its obligations and liability under the
Contract.
8. (a) Royal represents and warrants to the Municipality that:
i. the Contract is in full force and effect and constitutes the entire
and only agreement between Royal and the Contractor with
respect to the construction, installation and maintenance of the
Ashdale Works and Liza Works;
ii. to the best of Royal's knowledge there is no material default
existing by any party under the Contract; and
iii. there is no outstanding encumbrance or assignment of the
Contract or of any benefits and advantages to be derived from
the Contract by it.
(b) Royal represents and warrants to the Municipality that there is no
pending or threatened litigation, action, claim or fact known to Royal
and not disclosed to the Municipality in writing which materially
adversely affects or could so affect the Contract or the rights of any party
under the Contract.
9. Royal hereby covenants and agrees:
a. to deliver an original executed copy of the Contract to the Municipality;
b. not to cancel, amend or modify the Contract without the prior written
consent of the Director, not to be unreasonably withheld or delayed;
and
C. not to execute any assignment of the Contract without the prior written
consent of the Director acting reasonably and without delay.
10. Royal acknowledges and agrees that the Municipality has authority to enter
into this Agreement, that every provision hereof is authorized by law and is
fully enforceable by the parties and that this Agreement is made by the
Municipality in reliance on this acknowledgement and agreement.
11. This Agreement may not be amended except with the written consent of the
Municipality and Royal.
12. Any notice, request, communication or demand under this Agreement shall
be in writing and shall be considered properly delivered when given or
served personally or by registered mail to:
the Municipality:
40 Temperance Street
Bowmanville, Ontario
L1C 3A6
Attention: Director of Public Works
Royal:
20 King Street West
9th Floor
Toronto, Ontario
M5H 1C4
Attention: Mr. R. A. Geofroy, Senior Account Manager
Such notice, request or demand shall be deemed to have been delivered on
the date it is delivered if given or served personally or on the third day
following mailing, if it is mailed. If at any time notice is delivered by mail
and there is any cessation (whether anticipated or existing) of mail service
affecting the delivery of such notice, the notice shall not be deemed to have
been delivered until five (5) business days after the date that normal service is
restored.
13. This Agreement shall be governed by and interpreted in accordance with the
laws of the Province of Ontario and the parties attorn to the jurisdiction of
the courts of the Province of Ontario in order to enforce this Agreement.
14. If any term, covenant or condition of this Agreement to any extent is held
invalid or unenforceable, the remainder of this Agreement shall not be
affected thereby and each term, covenant and condition of this Agreement
shall be separately valid and enforceable to the fullest extent permitted by law.
15. This Agreement may be executed in several counterparts, each of which shall
be deemed to be an original, and all counterparts shall constitute one and the
same instrument. This Agreement shall not be binding and in effect until at
least one counterpart, duly executed by the Municipality and Royal, has been
delivered to each party hereto.
16: This Agreement shall enure to the benefit of and be binding on the parties
hereto and their respective successors and assigns.
IN WITNESS WHEREOF the parties hereto have hereunto affixed their corporate
seals by the hands of its proper officers duly authorized in that behalf the day and
year first above written.
THE CORPORATION OF THE
MUNICIPALITY OF CLARINGTON
By:
Diane Hamre - Mayor
c/s
And By:
Patti Barrie Clerk
ROYAL 11ADA
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