HomeMy WebLinkAbout97-217 a
THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON
BY-LAW 97-217
being a by-law to authorize an agreement
between the Corporation of the Municipality
of Clarington and Boville Holdings Inc. ,
Bowmanville, Ontario, for the purchase of
property at 53 King Street, Bowmanville
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 with the Corporate Seal, a contract between
Boville Holdings Inc. , and said Corporation.
2 . THAT the contract attached hereto as Schedule "A" form part
of this by-laws.
By-law read a first and second time this 14th day of October 1997
By-law read a third time and finally passed this 14th day of
October 1997
MAYOR
r
' CLERK
THIS AGREEMENT made in quintuplicate as of this 8th day of October, 1997.
BETWEEN:
THE CORPORATION OF
THE MUNICIPALITY OF CLARINGTON
(hereinafter called the "Municipality")
OF THE FIRST PART
- and -
BOVILLE HOLDINGS (1997) INC.
(hereinafter called "Boville")
OF THE SECOND PART
WHEREAS:
A. The Municipality in May, 1997 issued a proposal call for the purchase of the property
known as 53 King Street East, Bowmanville, Ontario as described in Schedule "A" hereto
(the "Lands");
B. Boville has submitted a proposal to the Municipality for the reconstruction of the
building (the "Building") upon and the purchase of the Lands which was considered and not
accepted by the Municipality's Council at its meeting of ML� O 1997;
C. Boville continued to express interest in acquiring the Lands and the Municipality and
Boville now enter into this Agreement for the reconstruction of the Building and conveyance
of the Lands;
D. This Agreement is authorized by By-law No.` L7 _Ilof the Municipality passed on the
8th day of October, 1997.
NOW THEREFORE WITNESSETH THAT in consideration of the premises and
the covenants hereinafter expressed, and the sum of two ($2.00) dollars of lawful money of
Canada, now paid by each Party to the other (the receipt whereof by each Party is hereby
acknowledged), the Parties hereto covenant and agree to and with each other as follows:
Page 2
1.0 INTERPRETATION AND SCHEDULES
1.1 Definitions
(1) In this Agreement the term:
(a) "Approved Plans and Specifications" has the meaning assigned to it in Section
3.1 of this Agreement.
(b) "Building Code Act" means the Building Code Act, 1992, S.O. 1992 c.23, as
amended, and as it may be further amended or replaced from time to time.
(c) "Closing Date" has the meaning assigned to it in Section 4.3 of this
Agreement.
(d) "Construction Lien Act"means the Construction Lien Act, R.S.O. 1990 c.C.30,
as amended, and as it may be further amended or replaced from time to time.
(e) "Exterior Works" has the meaning assigned to it in Section 2.1 of this
Agreement.
(f) "Force Majeure" means any delay by reason of: strikes; lockouts; wars or acts
of military authority; rebellion or civil commotion; fire or explosion; flood,
wind, water, earthquake or other casualty; or an Act of God; and not caused
by the default or act or omission by Boville and not avoidable by the exercise
of reasonable effort or foresight by Boville including any act of or omission
by Boville.
(g) "Inspections" has the meaning assigned to it in Section 2.2 of this Agreement.
(h) "Interior Works" has the meaning assigned to it in Section 2.1 of this
Agreement.
(i) "Lands" has the meaning assigned to it in Recital "B" of this Agreement and
includes the building,parking spaces,paved driveway access,landscaping, and
all site services and erosion protection works to be constructed thereon in
accordance with this Agreement.
Page 3
(j) "Municipal Act" means the Municipal Act, R.S.O. 1990 c.M.45, as amended,
as it may be further amended or replaced from time to time.
(k) "Municipal Arbitration Act" means the Municipal Arbitration Act, R.S.O. 1990
c.M.48 as it may be further amended or replaced from time to time.
(1) "Municipality's Consultant" means a professional engineer, architect or
designated representative retained by the Municipality at the Municipality's
expense who or which is a partnership, association of persons or corporation
that holds in their or its own name a certificate of authorization to practice
professional civil engineering and is licensed to do so under the Professional
Engineers Act, R.S.O. 1990, c.P.28 or a license under the Architects Act, R.S.O.
1990, c.A.26 and designated by the Municipality who shall perform the duties
provided herein acting reasonably in accordance with good architectural and
engineering principles of a prudent professional, consistently applied.
(m) "Municipality's Solicitor" means a barrister and solicitor appointed by the
Council of The Corporation of the Municipality of Clarington at the
Municipality's expense as solicitor for the Municipality.
(n) "Official Arbitrator" has the meaning assigned to it by the Municipal
Arbitration Act.
(o) "Ontario Building Code" means the building code designated by regulation
made pursuant to the Building Code Act, as amended, as it may be amended
or replaced from time to time.
(p) "Planning Act" means the Planning Act, R.S.O. 1990, c.P.13, as amended, as
it may be further amended or replaced from time to time.
(q) "Plans and Specifications" has the meaning assigned to it in Section 2.1 of this
Agreement.
(r) "Project Engineer"means a consulting engineer experienced in performing the
duties set out in this Agreement who, or which is a partnership or association
of persons or a corporation that holds a certificate of authorization in their or
its own name to practice professional civil engineering and is licensed under
the Professional Engineers Act, R.S.O. 1990 c.P.28 as it may be amended from
Page 4
time to time, provided that the Project Engineer shall not be Boville, or an
officer or director, a shareholder or an employee of Boville who shall perform
the duties provided herein acting reasonably in accordance with good
engineering principles of a prudent professional, consistently applied.
(s) "Property Manager" means the official of the Municipality designated as its
Property Manager.
(t) "Purchase Price" has the meaning assigned to it in Section 4.1 of this
Agreement.
(u) "Records" has the meaning assigned to in Section 4.4 of this Agreement.
(v) "Registry Act" means the Registry Act, R.S.O. 1990, c.R.20, as amended, as it
may be further amended or replaced from time to time.
(w) "Remedial Works" has the meaning assigned to it in Section 2.1 of this
Agreement.
(2) Boville warrants that the representations contained in Recitals B and C are correct.
(3) Whether or not it so provides explicitly, every provision of this Agreement by which
Boville is required to undertake any action shall be deemed to include the words "at
the cost of Boville".
(4) Every provision of this Agreement by which the Municipality is required to act,
receive approve or direct shall be deemed to refer to the Property Manager.
(5) Unless the context otherwise requires when used in this Agreement, the singular
includes the plural and the masculine includes the feminine.
1.2 Schedules
The following Schedules which are attached hereto, together with all provisions
therein, are hereby made a part of this Agreement as fully and for all purposes as would be
the case if they were set out in the text of this Agreement as covenants and agreements:
Schedule "A" - "Legal Description of the Lands"
Schedule "B" - "Exterior Works"
Page 5
Schedule "C" - 'Reinforcement Works"
Schedule 'D" - "Interior Works"
Schedule 'B" - "Schedule of Works"
2.0 PREPARATION AND APPROVAL OF PLANS AND SPECIFICATIONS
2.1 Boville forthwith shall cause to be prepared drawings, specifications and
engineering drawings (the "Plans and Specifications")for the Building and improvements on
the Lands for any protection and remedial works (the "Remedial Works") considered
necessary by the Municipality's Chief Building Official (the "CBO") including but not limited
to the exterior works (the "Exterior Works") identified in the engineering reports annexed
as Schedule 'B", the reinforcement works (the "Reinforcement Works") identified in the
engineering report annexed as Schedule "C", and the structural and roof works (the "Interior
Works") identified in the engineering report annexed as Schedule"D"hereto. The Plans and
Specifications shall be prepared by the Project Engineer and shall include site plan drawings,
elevations, architectural drawings, mechanical drawings, electrical drawings, all in sufficient
detail to permit the CBO to exercise his right of review and approval in accordance with the
requirements of the Ontario Building Code. The Plans and Specifications shall be
professionally certified in accordance with all governing authorities and the requirements of
the Ontario Building Code and be submitted to the CBO in respect of the Exterior Works
and the Reinforcement Works on or before November 15, 1997 and in respect of the
Interior Works on or before December 15, 1997. Nothing herein shall restrict Boville from
preparing Plans and Specifications for the Exterior Works other than as identified in
Schedule "B" subject to the approval of the CBO as confirmed by the Approved Plans and
Specifications (as hereinafter defined).
2.2 Boville shall be responsible for conducting such tests and inspections of the
Lands at its own expense (the "Inspections") as would a reasonably prudent owner prior to
the preparation and completion of the Plans and Specifications. Boville shall deliver to the
Municipality the results of the Inspections including copies of any reports prepared by or on
behalf of Boville forthwith after their receipt by or on behalf of Boville.
2.3 After closing Boville shall permit the Municipality, the Municipality's
Consultant, the Municipality's staff and other persons authorized in writing by the Property
Manager, access to the Lands and the "Records" (as hereafter defined) from time to time.
Without in any way derogating from or affecting the powers of the CBO and building
inspectors of the Municipality and the duties of Boville under the Building Code Act, Boville
hereby authorizes the Municipality to carry out at the Municipality's expense, such
reasonable tests and inspections as the Municipality or the Municipality's Consultant may
Page 6
deem reasonably necessary for the interpretation of, review of; comment or decision upon
the Plans and Specifications, provided that such inspection shall not unduly interfere with
Boville and any damage caused by such test and/or inspection shall be restored.
3.0 CONSTRUCTION OF BUILDING
3.1 Boville shall obtain at its own cost all approvals, permits and permissions from
the authorities having jurisdiction thereover prior to commencing the construction,
installation or supply of the material which is the subject of such approval, permit or
permission including but not limited to a building permit for the Plans and Specifications as
approved by the CBO as confirmed by the issuance of a building permit (the "Approved
Plans and Specifications").
3.2 Boville at Boville's expense shall construct and install the Remedial Works
more particularly set out in the Approved Plans and Specifications.
3.3 At all times until this Agreement is completed or terminated, Boville shall
retain the Project Engineer who shall provide or arrange for the provision of fully qualified,
experienced, supervisory, layout and inspection staff, acceptable to the Municipality or the
Municipality's Consultant, to provide continuous inspection service during all phases of
construction of the Building. Without limiting the generality of the foregoing Boville and/or
the Project Engineer shall be responsible for the following:
(a) preparation of the Plans and Specifications;
(b) thoroughly inspect the construction, installation and supply of materials to
ensure that all work is being performed in accordance with the Approved
Plans and Specifications and all applicable law. The Project Engineer shall
have the authority and responsibility to immediately stop and/or reject any
work,procedure or material which in the opinion of the Project Engineer does
not comply with the Approved Plans and Specifications or the applicable law;
(c) carry out or arrange for the carrying out by qualified personnel of all
necessary monitoring and field testing of the construction, installation and
supply of materials to certify to the Municipality construction of the Building
in accordance with the Approved Plans and Specifications;
(d) to provide coordination and scheduling of the construction, installation and
supply of materials in accordance with the timing provisions contained in this
Agreement; and
Page 7
(e) to investigate immediately and report to the Property Manager in writing any
unusual circumstances, potential problems, conflicts, errors, defective work or
material which may arise during the construction, installation and supply of
materials comprising the Building.
3.4 Boville or the Project Engineer shall maintain all records, data, reports and
approvals,and orders pertaining to the construction and installation of the Building including
all contract documents, subcontracts and supply contracts, payment certificates, payment
records and receipts, certificates of substantial performance, the names and addresses of all
contractors, subcontractors and suppliers of materials and services,certificates of completion
of subcontracts and proof of service and publication thereof in accordance with the
provisions of all applicable legislation (the "Records"), and make all of the foregoing
available for examination by the Municipality's Consultant as required by the Municipality
without cost.
3.5 The Project Engineer shall provide the Property Manager with verbal reports
on the progress of the construction and installation of the Building on a weekly basis and
written reports on the progress of the construction and installation of the Building on a
monthly basis.
3.6 In the event of a dispute between the Project Engineer and the CBO on the
interpretation of the requirements of the Approved Plans and Specifications, Boville shall
construct, install or supply materials in accordance with the interpretation of the CBO and
the dispute shall be resolved in accordance with Section 6.1. Interpretations and findings
of each of the Project Engineer and the CBO shall be consistent with the intent of the
Approved Plans and Specifications.
3.7 The Municipality's staff(as authorized by the Property Manager under Section
2.5), the CBO and the Municipality's Consultant shall have access to the Building and Lands
at all times weather and safety conditions on the Lands reasonably permitting subject to
compliance with applicable law. Boville shall provide sufficient, safe and proper facilities
at all times in compliance with applicable law for the inspection of the Building by the
Municipality's Staff, the CBO, the Municipality's Consultant and by government authorities
and their personnel.
3.8 Immediately after becoming apprised of any change made in the terms of the
contract, subcontract or supply contract or in the name or address of a contractor,
subcontractor and supplier from information that may not have been provided to the
Property Manager by Boville or by the Project Engineer pursuant to this Agreement.
Page 8
4.0 PURCHASE OF PROPERTY
4.1 The 'Purchase Price" for the Land including the Building is $35,000.00 plus
GST, if applicable. The Purchase Price shall be paid by Boville to the Municipality by cash,
certified cheque or official bank draft as follows:
(a) Three Thousand Five Hundred ($3,500.00) Dollars upon the execution and
delivery of this Agreement; and
(b) Thirty-One Thousand Five Hundred ($31,500.00) Dollars on closing.
4.2 On the Closing Date the vacant possession of the Lands shall be given to
Boville except as otherwise provided herein.
4.3 This Agreement shall be completed on the day (the "Closing Date") which is
five (5)business days, exclusive of Saturdays, Sundays and statutory holidays after a building
permit for the Exterior Works has been issued by the CBO.
4.4 Boville shall be allowed until the earlier of the Closing Date or October 15,
1997 to examine the title to the Lands at its own expense. The Municipality hereby consents
to any governmental authority releasing to Boville details of all outstanding work orders or
deficiency notices affecting the Lands and agrees to execute and deliver to Boville such
further authorizations in this regard as Boville may reasonably require.
4.5 Boville shall not call for the production of any title deed, abstract, survey or
other evidence of title to the Lands except such as are in the possession or control of the
Municipality.
4.6 Title to the Lands shall be good and marketable title in fee simple absolute,
free from all registered restrictions, charges, liens and encumbrances except as otherwise
specifically provided in this Agreement 'and save and except for:
(a) any registered restrictions or covenants that run with the land providing that
such are complied with;
(b) any registered municipal agreements and registered agreements with publicly
regulated utilities, Central Lake Ontario Conservation Authority and Ministry
of Natural Resources providing such have been complied with, or security has
been posted to ensure compliance and completion;
Page 9
(c) an easement along the southerly 15 feet of the Lands in favour of the
properties municipally known as 491/2 King Street East and 43/45 King Street
East for access thereto;
(d) any minor easements for the supply of domestic utility or telephone services
to the Lands or adjacent properties; and
(e) property standards orders issued by or on behalf of the Municipality.
If prior to closing any valid objection to title is made in writing to the Municipality and which
the Municipality is unable to remove, remedy or satisfy and which Boville will not waive,this
Agreement, notwithstanding any intermediate acts or negotiations in respect of such
objections, shall be at an end and the deposit shall be returned without interest or deduction
and neither party shall have any further obligation under this Agreement. Save as to any
valid objection so made prior to closing except for any objection going to the root of the
title, Boville shall be conclusively deemed to have accepted the Municipality's title to the
Lands.
4.7 All buildings on the Lands and all other things being purchased from the date
of this Agreement shall be and remain until completion of this Agreement at the risk of
Boville. Pending completion, Boville shall hold all insurance policies, if any, and the
proceeds thereof in trust for the parties as their respective interests may appear.
4.8 This Agreement shall not be effective to create an interest in the Lands unless
the provisions of Section 50 of the Planning Act are complied with on or before completion.
4.9 The Municipality represents and warrants that it is not now and will not be on
closing a non-resident of Canada and upon completion shall deliver a statutory declaration
of an official of the Municipality to such effect.
4.10 Any rents, mortgage interest, realty taxes, local improvement charges, water
and unmetered utility charges and the cost of fuel shall be apportioned as applicable and
allowed to the day of completion (the day itself to be apportioned to Boville).
4.11 Any tender of documents or money hereunder may be made upon Boville or
the Municipality or upon their respective solicitors on the Closing Date. Money may be
tendered by official bank draft or certified cheque.
Page 10
4.12' The Municipality shall deliver the following documents and assurances to
Boville on or before the Closing Date:
(a) a Transfer/Deed of Land of the Lands in registrable form; and
(b) a Statement of Adjustments in duplicate prepared in accordance with this
Section.
5.0 REPRESENTATIONS AND WARRANTIES
5.1 Boville's Representations and Warranties
Boville covenants, represents, warrants and agrees with the Municipality that:
(a) the Remedial Works shall be constructed in a good and workmanlike manner
and in accordance with the Approved Plans and Specifications and all
Municipal, Regional and Provincial requirements and in accordance with the
schedule of work (the "Schedule of Work") set out in Schedule "C';
(b) Without derogating from the other provisions of this Agreement and the right
of the Municipality pursuant to any applicable legislation, if, in the opinion of
the Municipality, (1) Boville is not constructing and installing or causing to be
constructed or installed any of the Remedial Works required by this
Agreement so that it or they will be completed within the time specified for
such completion in the Schedule of Work, or (2) the Remedial Works or any
component(s) thereof are being improperly constructed or installed, or (3)
Boville neglects or abandons the said Remedial Works or any part of them
before completion, or (4) unreasonable delay occurs in the construction or
installation of the Remedial Works, or (5) for any other reason the Remedial
Works are not being constructed or installed properly and promptly and in full
compliance with the provisions of this Agreement, or (6) Boville neglects or
refuses to reconstruct or reinstall any of the Remedial Works or component(s)
thereof which may be rejected by the Municipality as being defective,deficient
or unsuitable; or (7) Boville otherwise defaults in performance of this
Agreement, the Municipality may give Boville notice in writing of his opinion
respecting any such matter. Following 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 Boville by the Municipality, the
Municipality may (1) require the surety which issued the performance bond,
Page 11
if any, to complete or (2) at the cost and expense of Boville, 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 Municipality are
required for the completion of the construction and installation of the
Remedial Works and all components thereof and the performance of all
covenants of Boville relating to the Remedial Works as provided by this
Agreement. In cases of an emergency or urgency, or in order to preserve the
integrity of the Remedial Works or any component thereof as determined by
the Municipality in its absolute discretion, any deficiency(s) or defect(s) in the
Remedial Works, and any failure to complete the Remedial 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 Boville without prior notice to Boville, provided that
forthwith after the Municipality so acts, the Municipality shall give written
notice to Boville of his determination as aforesaid, describing the action taken
by the Municipality, and the cost of correcting or remedying the deficiency or
default in question or the cost of completing the Remedial Works and the
components thereof, as the case may be. For the purposes of this paragraph
5.1(b) the cost of any work which the Municipality undertakes under this
paragraph 5.1(b) shall be determined by the Property Manager in his absolute
discretion. It is understood and agreed by the Parties that the costs for which
Boville is responsible under this paragraph 5.1(b) shall include a management
fee payable to the Municipality either of ten(10%) 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, ten (10%) percent of all costs
incurred by the Municipality to correct or remedy the deficiencies or defect
or to complete the Remedial Works and all components thereof as the case
may be. Boville shall pay the Municipality an amount equal to the cost of all
Remedial Works and components thereof, and the cost of correcting or
remedying all deficiencies and defects referred to in this paragraph 5.1(b)
which have been incurred by the Municipality or are estimated in the Property
Manager's absolute discretion to be likely to be incurred by the Municipality
forthwith after the Property Manager gives Boville written demand for
payment of such cost. If the amount paid is based on the Property Manager's
estimate as aforesaid, forthwith after actual costs are known the Property
Manager shall give Boville written notice thereof. If the actual costs are more
than the estimated costs, Boville 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
Page 12
between them to Boville. If Boville fails to make payment to the Municipality
as required then the Municipality may draw on and appropriate any portion
of the Security (as hereinafter defined) for any of the aforesaid purposes.
(c) In order to secure the completion of the obligation of Boville pursuant to this
Agreement either a performance bond for the benefit of the Municipality in
a form and with a content satisfactory to the Municipality's Treasurer or a
letter of credit addressed to the Municipality issued by a bank listed in
Schedule I of the Bank Act containing terms and in a form satisfactory to the
Municipality's Treasurer or a certified cheque each in the amount of fifty
thousand ($50,000) dollars shall be delivered by Boville to the Municipality on
closing (the "Security").
.
5.2 Upon completion of the Remedial Works in accordance with the Approved
Plans and Specifications and to the satisfaction of the CBO,the Municipality shall return the
Security or such remaining portion thereof, as the case may be, to Boville.
6.0 Arbitration
6.1 If a dispute should arise between (i) the Municipality, the Property Manager
or the Municipality's Consultant; and (ii) Boville or the Project Engineer, then unless
otherwise provided in this Agreement any construction, installation or supply of materials
shall be affected in accordance with the instruction or direction of the Municipality, the
Property Manager or the Municipality's Consultant, as the case may be, and Boville shall be
entitled to require arbitration of the matter in dispute and the apportionment and
adjustment between the parties of the cost of effecting such construction, installation or
supply of materials in accordance with this Section. If an Official Arbitrator has been
appointed for the Municipality and the provisions of the Municipal Arbitration Act apply to
determine all questions arising under this Agreement, then such determination shall be in
accordance with the requirements and procedures of that Act, or if an Official Arbitrator
has not been appointed from the Municipality and the Municipal Arbitration Act does not
apply to determine questions arising under this Agreement, then such determination shall
be in accordance with the requirements and procedures set out in the Municipal Act.
7.0 GENERAL
7.1 Time of the Essence
Time shall in all respects be of the essence of this Agreement provided that
the time for doing or completing or any matter provided for in this Agreement may be
Page 13
extended or abridged by an agreement in writing signed together or in counterpart by Boville
and the Municipality or by their respective solicitors who are hereby expressly appointed in
this regard.
7.2 Governing Law
This Agreement is made pursuant to and shall be governed by and construed
in accordance with the laws of the Province of Ontario.
7.3 Headings
Any headings, subheadings or marginal note contained in this Agreement and
the table of contents, if any, preceding this Agreement are inserted for convenience and for
reference only and in no way define, limit or describe the scope or intent of this Agreement
or form part of this Agreement.
7.4 No Merger
The parties' representations,warranties, covenants and agreements contained
in this Agreement shall not merge on but shall survive the closing.
7.5 Entire Agreement
The parties agree that there are no representations, warranties, covenants,
agreements, collateral agreements or conditions affecting this Agreement other than as
expressed in writing in this Agreement.
7.6 Notice
Any notice to be given or document to be delivered to either Boville or the
Municipality pursuant to this Agreement shall be in writing and shall be delivered either
personally or by courier or telecopied or sent by prepaid registered mail to the address
specified below or to such other address as may be specified in writing from time to time
by either party to the other. Any written notice or delivery of documents given in this
manner shall be deemed to have been given and received on the day of delivery or telecopy
if delivered personally or by courier or telecopied or on the second Business Day next
following the day or mailing if sent by prepaid registered mail, provide however, if at the
date of such mailing interruption in the operation of the Canadian Postal Service will or is
likely to delay the receipt thereof, it shall not be mailed but shall be delivered personally.
Any telecopied notice must be sent by courier to the recipient for delivery no later than the
next Business Day after the day such notice was telecopied, for the telecopied notice to be
valid.
Page 14
Boville: Boville Holdings Inc.
4100 Holt Road
Hampton, Ontario Tel: (905) 263-8153
LOB 1JO Fax: (905) 263-4608
Municipality: Municipality of Clarington
40 Temperance Street
Bowmanville, Ontario Tel: (905) 623-3379
L1C 3A6 Fax: (905) 623-5717
Attention: Chief Administrative Officer
7.7 Not Assignable Without Consent
Neither the Purchaser or Boville shall assign this Agreement without the prior
written consent of the other party will consent may be unreasonably withheld.
7.8 Enurement
Subject to Section 8.7 this Agreement will enure to the benefit and be binding
on the parties hereto and their respective successors and assigns.
IN WITNESS WHEREOF the Parties have duly executed and delivered this
Agreement as of the date first set out above 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 ) THE CORPORATION OF THE
MUNICIPALITY OF CLARINGTON
DELIVERED ) .
Mayor
In the presence of )
Clerk
B LE HOLDINGS (1997) INC.
Na e: Title:Q
Name: Title:
SCHEDULE "A"
Legal Description of the Lands
ALL and singular that certain parcel or tract of land and premises, lying and being
in the Town of Bowmanville in the County of Durham and Province of Ontario, and being
composed of part of town lot number 16 in Block "T" situate on the south side of King
Street and west side of Division Street in the said Town of Bowmanville and which is more
particularly known and described as follows, that is to say:
COMMENCING at the north east corner of the said lot number 16 and at a point where
the south limit of King Street in the said Town of Bowmanville is intersected by the west
limit of Division Street;
THENCE in a westerly direction along the south limit of King Street 20 feet and 4 inches
to a brick building;
THENCE in a southerly direction parallel with the said Division Street 165 feet to the
northern boundary of lot number 107 in the aforesaid block "T;
THENCE in an easterly direction along the northern boundary of the said lot number 107,
20 feet and 4 inches to the west limit of Division Street;
THENCE in a northerly direction along such westerly limit of said Division Street 165 feet
more or less to the place of beginning containing by admeasurement twelve perches more
or less, according to a plan of the Village of Bowmanville in the Registry Office for the
Registry Division of the West Riding of the County of Durham which plan was made by the
John Grant P.L.S. and was registered on the 20th day of April, 1852.
SUBJECT to a right-of-way over the southerly 15 feet from East to West of the lands
hereinbefore described.
SCHEDULE "B"
Exterior Works
Letter dated October 26, 1995 from R.W. Bruynson Inc. enclosing revised report submitted
by Holmes Engineering dated October 12, 1995 on the exterior of 53 King Street East.
R. W. B , RUYNSONI INC.
ARCHITECT • CONSULTING ENGINEER
October 26, 1995
Town of Clarington
40 Temperance Street
B oNvinanv tile. Ontan o
I.I C 3A6
Att: L.Creamer
Senior By-Law Enforcement Officer
Dear Sir:
RE, 53 King,Street East
Bowmanvilie, Ontario
Our File 93089
,ks requested,we have reviewed the revised re-Port submitted b�, Holmes En%ineering dated October
12, 1995 and comment as follows.
The report satisfies most of our concerns as stated in our later letter dated. October h, 1995.
'=lowever, we would suggest that attention be given to the fastening of the lathe }d the fascia. The
:asteners should be screwed into the mortar headjoints and in the side only. 1'x'0:d blocking should
�c used instead of fastening the lathe and flashing directly to the mas on rv.
We further recommend that the work be monitored closely by the town during construction to
Insure that the work is being performed by competent people in a good workin,.: ship like manner.
knv w knovvns exposed and identified may be dealt with at that time.
We are of the opinion that the final proposal will generally satist) I-- tov.1is concerns and. if
properly executed,will stabilize the exterior building structure and protect the py-.blic interests. We
limit our comments on the exterior building envelope since we were not allow•(,;i entrance into the
building for inspection.
We trust that this satisfies your immediate concerns and remain
Your Truly
R.`'V.BRU;YN SON r C.
-� ck Bruynson
c.'• 1:
PRE5.IDENT— R.W. Btuyoson, B.A.Sc., BEng.. O.A_A_ M.A.I C....�
- Hr.WA, ONT. ;_1.• 7Ag f9U5) 433 C0�' FAX i�.5) 433-06C
rF_A U OFFICE: 'M TERWILLECAR AVE.. UNIT #1, GS 4CH (ENGINEERING OFFICE):= 101. LOYALIST BUSINESS CENTRE `_�LOOMFIE'_D FD., PICTO��. ONT. KGK LTG (613 4?6-E�;34 FAX (6'.3l 476.119
HOLMES J. K. Holmes, P. Eng.,
240 Victoria St. N.,
iiiiwiiiiiiiiii ENGINEERING PORT HOPE, Ontario,
UA 3N4
Civil and Structural Engineering
October 12, 1995
Mr. Thomas Annis,
Mrs. Maria Annis,
P.O. Boa 3,
BOWMANVILLE, On.,
UC 3KS
REVISED REPORT ON 53 KING ST. E. BOWMANVILLE
Introduction
The building, located on the south-west corner of King and Division Streets in
Bowmanville is depicted in Figure 1. The entire structure includes the three story
part and a two story part extending to the left in Figure 1. This report emphasizes
repairs needed on the three story part.
Since the writing of the first version of this report dated September 23, 1995 the
upper exterior bricks of the building have been reexamined and the interior
condition of these bricks have been assessed. In addition, the drawing and report by
R W. Bruynson Inc., a consulting engineer has been studied. New data from these
-lirces have been included in the analysis.
This report provides remedies which must be followed to correct the deficiencies on
the exterior of the above building as spelled out in By-law Enforcement Division
Orders relating to the By-law Sections 5.2.3(1), 5.2.4(2), 5.2.9(1), 5.2.9(2) and
5.2.3(2)(c). Copies of these related documents are attached.
The report segments follow the statements made in the section references above.
5.2.3(1); Exterior Walls and their Components:
The deterioration of the upper east wall of the building is shown in Figure 2.
Q� sa:oftq�
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Area Where Frost Action
Has Spalled Bricks
Two Story South Part
Figure 1: View from the North-West
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N'igure Z: Brick Damage on the Last Wall
Page 2
Detailed examination show that the third floor of the building was apparently not
heated for some time and spalling of the exterior brick face due to the freezing of
trapped moisture has taken place. The line of deterioration is visible in Figure 1.
The interior bricks within the third floor should first be pointed and all loose mortar
replaced.
ZA
The exterior brick face at the third floor level should be checked for stability and
replaced downward to where the binding mortar is sound. During this replacement
non-corrosive brick ties should be installed to secure the exterior brick face to the
interior layers and any missing mortar in the interior layers should be replaced. The
brick ties should be tightly grouted into the interior mortar seams during mortar
replacement. Figure 3 restates these instructions.
Should bricks be removed above the upper two windows, then lintels consisting of
two 3.25 a 3.25 z.25 angles should be installed.
Following the above preparation, the entire exterior brick structure of the three
story segment of the building must be covered as follows:
1: Scrape the existing brick surfaces to remove loose material and
existing paint. Any obsolete signs or attachments should be removed at this
time.
2. Cover all of the brick surface with a base coat consisting of 4 parts
masonry sand, I part Portland cement and_1 part time, in order to secure
bricks which are in danger of spalling and to provide a foundation for
further applications.
3. Install 9 gauge galvanized stucco mesh in 4' by 8' sheets with 2.5 inch long,
.25 inch diameter, rust proofed tapcons centred 16 inches apart in each
direction.These fasteners should penetrate into the body of a brick to insure
a secure attachment to the wall. Galvanized washers of 1 inch outside
diameter should accompany each tapcon.
4.Apply two more coats of the same mixture as described in item 2. above
onto the stucco mesh.
5.Apply a finish coat of stucco mix.
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Page 3
6. The top of the wall,visible in Figure 2 should be protected by covering it
with a 29 gauge baked-on enamel drip flashing of colour chosen by the
owner.As shown in Figure 3,this will protect the edge of the new
applications.
5.2.4(2); Fascia. Soffit and Cornice Deterioration:
Figure 4 shows views of the east and north sides of the building. Note that each
window is identified by a number.
Figure 5 depicts a portion of the fascia, soffit and cornice on the north side of the
building. Any insecure boards in the fascia and soffit should be replaced, and the
fascia and soffit then covered with steel flashing of colour to match the drip flashing.
The eves trough here should also be restored.
Prior to the application of base, lath and stucco as described above, the cornice
bricks should be restored to original condition.
5.2.9(1); Window Repair and Sealing;
Window # 6, as shown in Figure 6 must have a lintel made from 3.25 inch by 3.25
inch by .25 inch angle material installed and the missing bricks replaced prior to
the stucco application.
5.2.9(2): Rotting of Frames and Broken Glass:
All windows require puttying and the painting of the frames. Figure 7 illustrates
that the replacement of broken panes are also required. Caulking should be applied
around afl frames to'seal against water penetration.
Figure 8 displays a rotted sill which is typical of several windows on the east side as
labeled in Figure 5. Rotted window sill should be replaced by a poured concrete sill
which may then be coated with the final stucco finish. Window numbered 3,7,9,11,
12 and 15 should receive this treatment.
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Figure 5: Portion of North Fascia. Soffit and Cornice
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• Figure 6: Window #6 on the East Side
ry
Figure 7: Window#12. East Side
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. Figure 8: Window #9, East Side
Page 4
Windows with wooden sills which are in acceptable condition should have metal lath
applied with screw nails and washers, then they may receive the sub coats and final
stucco finish. Windows numbered 1,2,6,8,14,17,18,19,20,21,22 and 23 should receive
this application.
Additional Items:
Study of the Bruynson report revealed the following additional items which should
receive attention during the renovation:
1. The roof edge flashing and fascia along the two story southeast roof
should be repaired.
2. There are missing bolts on the fire-escape which should be replaced.
3.A crack in the south two story wall should be repointed.
4. The lintel over window #23 in Figure 4 has been displaced when the
window was moved and should be replaced.
Conclusion:
This report has focused on the three story section of the building above the
temporary shield. Mr. Bruynson's work included the southern two story segment as
well. Window painting and caulking is needed on ti.; ennthern segment but the
bricks are in reasonably good condition.It is the northerly three story portion where
repairs and stucco cover are urgently needed.
The above treatment should eliminate the hazard of falling pieces of brick and
transform the appearance of the building. If during the operation there are any
questions, please contact Holmes Engineering at 905 885 4657.
Yours truly,
�4
v �, �tpI�AES
J. K. Holmes,P. Eng. `o
SCHEDULE "C"
Reinforcement Works
Letter dated September 16, 1997 from R.W. Bruynson Inc.
09/16/97 16:57 $905 623 5717 nNI CLARINGTON z 002
0Q116 1997 i2:1 9 @54�386A2 RW BRlN ON INC pAeE K
Re. Ww' - RUYNSON INC.
ARCHITECT • CONSULTINQ ENGINEER
September 16,1997
Tawu of Clarh
40 Temperanco Sheet
Bowmaitville,.l3atarin
LtC 3A6
Alt: F.kTervalb
PnopetryN .
Dear Sir_
RE: s3 l&#Srrea EW
DowmalMus,Ontario
Our Mk
Its r'aquea*we have re-msPeded the abaw sructure. FrOm ttus inspac M w$noted a number
of candid=that sbotdd be corrected.,
7) Ths f tsoia at the-fiwt of tt bwVug appears to be dinged,and should be re.
fasiQ�d.;
'-- The ederior post close to the 1106 west cMMff of sbold.be fastened
W the sidewall
3) bt+mor coivaut in the stare shtotdd be rc sW=ed and Mged to the be, am abo vc
4) Ail wood post (u second 9= should be re-shk med and fastened-to ft floor
5) Re-shim the beam members suppct 69 the Mof frmuM m the loft and WWI
additional-Oak= suppoEts nndcr the beam jai= to the west of the
tie calmm of the earth beam.
The above rmAlbr�will be adequate over the shcnt term. However,peziodic iaspectiaw shoWd
be Ikea to am=the W=blucd i0tg0ty of the bmTdmg struc tm
?c�stittjl tint this satisfies YVyr immecb de concerns,we vnU be at your disposal should ym ire
fiadw sistance.
Yours Truly. c Aw
R.W.BRUYPfSUl -INC.
YMM CF
R.w,M-WnML aA-ft»PAW., O.A.A..
KM OPROC 12aD?2Ptvn.LEGAA AYE. UMM*I,OSHMA.Ofiir LIJ?AS (Dos)4=-W?t FAX(eml 439-4nOg
BRANCH(ENQWrEMQ OF OEl
SUITE tot, LOYALIST SUSlfilE3S CENTFIF 6U?OMFgELD Fes..PrTdt.. ONL KOK rro (sia)47e and FAX(61$)471&1108
SCHEDULE "D"
Interior Works
Letter dated November 8, 1996 from R.W. Bruynson Inc. enclosing report of inspection of
the interior structure of 53 King Street East.
11/0B/1996 16:12 9054330602 RW BRUYNSON INC PAGE 02
R. W. BRUYNSON INC.
ARCHITECT - CONSULTING ENGINEER
November 8, 1996
Town of Clarington
40 Temperance Street
Bowmanville, Ontario
L1C 3A6
Att: L. Creamer
Senior By-Law Enforcement Officer „
NOV 8 1996
Dear Sir:
1`i OF CLARM ON
ICE: 53 King Street East
Bowmanville,Ontario
Our File 93089
Pursuant to our most recent conversation,we re-iterate our concerns as stated in our report to
you dated April 4, 1996, regarding the pTesent condition of the above building. It is our
expressed opinion that the structure is in immediate need of reinforcing to safeguard the interests
of public safety and adjacent properties. Now that winter is approaching,a real concern over the
integrity of the roof should be expressed to the appropriate persons and measures taken to limit
the risks and liabilities of the town.
Trusting that this receives your immediate attention,we remain
Yours Truly
R.W. BRUYNSON INC..
ick Bruynson
PRESIDENT—R.W.Bruynson, B.A.Sc., P.Eng., O.A.A., M.A.I.C.
HEAD OFFICE: 1260 TERWILLEGAR AVE.. UNIT 01, OSHAWA, ONT. L1J 7AS (905) 433-0071 FAX (905) 433-0602
BRANCH (ENGINEERING OFFICE):
SUITE 101, WYAUST BUSINESS CENTRE, BLOOMFIELD RD., PICTON, ONT. KOK 2TO (613) 478.6834 FAX (613) 476-1195
01/30/1996 21:48 9054330602 :w n:u,i 1��
R. W. BRUYNSON INC.
ARCHITECT CONSULTING ENGINEER
NOV 11 1996
April 4, 1996
MUNICIPA!IT"Y Cal s,;LAR1TdGTGN
Town of Clarington ECONOM-11C 7EVELOPMENT
40 Temperance Street
Bowmanville,Ontario
L1C 3A6
Att.: L.Creamer
Senior By-law Enforcement Officer
Dear Sir:
RE. 53 )King Street East
Bowmasville,Ontario
Our File 93089
Subsequent to our letter of January 13, 1995, we have performed an additional inspection as
requested to examine the interior structure of the above building. This inspection was performed
on Wednesday March 20, 1996 in the presence of staff from the town's Parks and Recreation,By-
law Enforcement and Fire Departments. The inspection was performed visually and no testing was
done to determine the extent of deterioration within the structural members. We also noted that the
deficiencies stated in our earlier report were still outstanding and if anything were progressively
getting worse.
As stated earlier,the building structure at the rear consists of a two storey complex with a flat roof.
There appears to be a crawl space underneath the first floor but because this space was inaccessible,
we were unable to determine the extent of this space or the condition. of the first floor support
systems. However,based on the structural configuration of the above roof and floor,we can assume
a similar system. The second floor appears to span east to west approximately 20 feet with no
intended intermediate support The(roof joists span likewise but slopes toward the east to the edge
of the roof where it drains uncontrolled onto the sidewalk. Of course it is presumed that the
partition walls of the second floor do provide some degree of unintentional load sharing between
the roof and the floor below.
PRESIDENT--R.W. aruynson, 9.A.9c., P.Eng.. O.A.A., M.A.I.C.
HEAD OFFICE: 1260 TERWILLEGAR AVE,. UNIT 01, OSHAWA, ONT. LIJ 7A5 (905) 433-0071 FAX (905) 433-0802
BRANCH (ENGINEERING OFFICE):
SUITS 101, LOYALIST BUSINESS CENTRE, BLOOMFIELD RO., PICTON.ONT. KOK 2T0 (613) 476 6634 FAX (613) 4T6 119
01/30/1996 21:48 9054330602 NW BRUYNbUN IM- rr Luc uo
e•
2
The member sizes were not visible but based upon our observation of the floor and roof system
deflections,we did not see any evidence that would raise concern. However,we do suspect that,
like most structures of this age,the floor and roof joists do not meet to days code with regards to
load capacity and serviceability. Notwithstanding the above,the fascia boards still need attention
and proper drainage system should be installed to direct the goof water off the roof in a controlled
manner.
The building portion at the front consists of a three storey structure with an;full height attic and a
cellar accessible from the outside. The first floor framing consists of plank flooring on un-sawn logs
that span north to south in contrary to the floors above. These logs in turn are supported on beams
with intermediate supports. There does not appear to be any excessive stressing or deflections
within these members and the foundation walls appear to be intact.
However the second floor framing spans 20 feet east to west between masonry bearing walls. These
members appear to exhibit excessive deflections and concern us greatly about their structural
integrity given the loads in which they have been subjected to in the past as well as the
modifications which have taken place above. We have not determined the size of these members
but assume that they are identical to the floor above.
01/30/1996 21:48 9054330602 K4q BRUYNSUN 1NG rHUC U4
i
3
The third floor framing originally was constructed similar.to the second floor framing. However
this framing has been altered twice in the past and sections of it lowered to create a sunken room
above. Not only is this framing inadequate for its'own direct load,but would be over stressed from
the additional loads from above. The aforementioned modifications were not only improperly
constructed but has loaded the second floor framing 150 to 250 percent of the normal design
capacity. This assessment neglects any contribution farm the roof which would worsen the situation
farther.
The attic floor framing has not been greatly altered but is providing inadequate support for the roof
framing which has been altered. Some joists have been cut to allow for easier access to the attic.
Our assessment of the joist show that these joists are also over stressed for their intended use. There
also appears to be a noticeable and permanent sag to the floor.
The roof joists span north to south between beam supports that stretch between the masonry walls.
The joist appear to be over sparmed and exhibit a noticeable sag. Some joists have been out to such
an extend that they have little supporting capacity. We also noted significant water stains on the
joists and suspect the presence of wood rot. The framing supports for the roof appear to have been
removed or are excessively loaded. Given the above we are concerned that the roof is in serious
jeopardy of failing under modest loadin&-s. The fact that it has not occurred earlier may be
contributed to the lack of insulation thus allowing enough heat to escape thru the roof to melt the
snow. Furthermore, if this roof collapses, a domino effect would be created within the whole
structure due to the weakened systems below and could quite conceivably affect the common
bearing wall to the west and its' supported structure.
UI/ Jtl/1770 L1:40 yYJ�µ.i.S rlbr7L KW OMUYIVSUIY i(V- r-"Ut ti
t
4
Furthermore,we reiterate our concerns regarding the issues stated in our earlier correspondence.
These issues being the fire escape, the condition of the exterior masonry walls and chimney,the
dentil work above the front wall,the fascia board,the flashing around the windows as well as the
windows themselves.
Based on the above assessment, we are of the opinion that the building is in immediate need of
substantial reWorcing or that the building should be demolished to safe guard the interests of public
safety. Alternately the building could be partially demolished to a point where the upper floors are
removed and the remainder of the structure could be reinforced.
It is our opinion that reconstruction of the above building to bring the structure and facilities up to
industry standard and in accordance with the regulations would be in the order of$130,000. This
includes the cost for the previously estimated exterior work as well as $25,000 for hire safety
upgrades. Alternately it is our opinion that the building could be demolished and the adjacent
building functionally secured for approximately$40,000.
Trusting that this satisfies your immediate needs, we will be at your disposal should you require
further assistance.
Yours Truly
R.W.BRUYNSON INC.
Rick Bru son
, r
SCHEDULE "E"
Schedule of Work
1. Exterior Works - to be completed within ninety (90) days after
issuance of a building permit therefore
2. Reinforcement Works - to be completed within thirty (30) days after
issuance of a building permit therefore
3. Interior Works - to be completed within two hundred and ten
(210) days after issuance of a building permit
therefore