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HomeMy WebLinkAboutWD-61-97 REPORT #4 THE XOr ~7?'~~' ~~~X~~~7~~~~~~CXXXGTON REPORT File # ~ U ~ S ~ Meeting: COUNCIL 17 Date: Res. # ~Z~~y,/ SEPTEMBER 29, 1997 By-Law # Report #: g~ File #: Subject: SOLINA ROAD IMPROVEMENT AGREEMENT Recommendations: It is respectfully recommended that Council consider the following: 1. THAT Report WD-61-97 be received; 2. THAT Council approve the payment of $16,D00 to the parties subject to the Municipality and the parties entering into an agreement substantially in the form attached (Attachment No. 1): a) Releasing each other from any further obligations under the September 29th, 1978 agreement. b) For the indemnification of the Municipality should it be established that the representations of the parties are inaccurate that (i) the money had been paid to the Municipality, (ii) the money had not been previously paid back to the parties or (iii) the parties are the proper recipients of the return of the money. 3. THAT a by-law be passed to authorize the Mayor and Clerk to enter into this agreement on behalf of the Municipality. These recommendations are approved by the Director of Public Works and by the Treasurer. o..E °®.~.~.E ,~ RBPORT NO. SQD- 6I - 97 PAdB 3. , REPORT 1.0 ATTACHM$NTS No. 1: .Letter to Louis-Aldrovandi from Katherine Campbell,- Treasurer, dated. December 30, 1981 No. 2: No. 3: No. 4: Draft Statutory Declaration of`Louia Aldrovandi Draft Agreement - Solina Road Improvement Agreement Draft By-Iaw to authorize Mayor .and Clerk to ~, execute Agreement 2.0 SACR6ROUND " 2.1 Pursuant o By-law No. 78-96 the Municipality entered into an agreement with Louis Aldrovandi, Lino Aldrovandi and Guido Bruni providing, inter alias a) for. the improvement of Solina Road between Baseline Road and Highway 401 in order to facilitate the development of an industrial building on their property located south,of the C.P.R. tracks; b) the estimated cost of the improvement of $32,000 be shared equally by these parties and the Municipality; c) their share of $16,000 to be paid to the .Municipality..- upon execution of the agreement; d) the Municipality to complete the improvement as soon as it is "practical". 2.2 .Neither the road improvement nor. the industrial bui ding have..- been constructed. Solina Road between Highway ,401 and the C.P.R. tracks is no longer accessible because 4 years ago F RSPORT NO. fiD-61-97 ~ Transport Canada closed the level crossing at that point and° a barrier has been .installed. 23 Mr. Robert Boychyn on behalf of the property owners has requested that the contribution of $16,000 be returned. No interest has been requested: The Treasury Department has no record of receipt of this contribution. Although there is a record of $16,000 received prior to 1984 in the Subdivider's Account under the name of "Bruno Aldrano", .neither the Treasury Department nor the .Public Works Department has any record of dealings with this person. Mr. Boychyn has produced a copy of a cancelled cheque in the amount of $16,000 dated September 22, 1978 payable to the Town of Newcastle (Attachment No. 1). He will recommend to his clients that the payment be confirmed by the execution and delivery to the Municipality of a Statutory Declaration in the form attached (Attachment No. 2). 2.4 The Public Works Department does not wish to see this section of Solina Road improved and has no objection to the release of the contribution if it was paid. In the. absence of evidence to the contrary, the evidence provided by Mr. Boychyn would likely: be accepted by a court of competent jurisdiction as establishing that the payment was made to the Municipality. Alternatively, the parties could demand that the Municipality complete its obligations to improve Solina Road. It is our understanding that this has been made more costly by Transport Canada's requirement that signals be installed. prior to the removal of barricades across the level crossing-(Attachment No. 2). 3.0 CONCLUSION 3.1 It is recommended that, conditional on the sworn Statutory` Declaration of Louis Aldrovandi with the content of Attachment. FSPORT NO. WD-61-97 PkGS 4 No. 2 being delivered to the Treasurer, council approve the payment of $16,000 to the parties subject to the Municipality. and the parties entering into an agreement substantially in the form of Attachment No. 3 providing: a) Releasing each other from any further obligations under the September 29th, 1978 agreement. b) For the indemnification of the Municipality should it be established that the representations of the parties are inaccurate that (i) the. money had been paid to the Municipality, (ii) the money had not been previously paid back to the parties or (iii) the parties are the proper recipients of the return of the money. 3.2 It is recommended that a by-law be passed to authorize the, Mayor and Clerk to enter into the agreement on behalf of the: Municipality. .This report is supported by the Treasurer and by the Municipality's Solicitor. Respectfully submitted, rte' ~,~,.,/ Steph n A. Vokes, P. Eng., Director of Public Works SAV*DH*ce September 25, 1997 Attachments Reviewed by, W.H. Stockwell, Chief Administrative Officer 5tr r~ •yv ii::,:~ rk lu W~~u~J~J'r~r~~~lyu~~a ~~.~~.~~~r_ ti8P 18 'S7 ]6:13 TC1: iGl:>5681G3N6 hFtUM: 4-y6b !'. k94 CORQOAATlON Gg TH8 TC1WN OF, NEWCAQT6F: a0 TEMPERANCE STRE~7 BOW, MANVILLE: ONTARIO 7ELEQHON£ e1,-73>9 L1 C ~A6 t'ec¢m6¢h 30, l9t'sI Lecuii AX.d `ovald.~ Adai.rt.~n2 Cowb;lucc.Lcon Eglu.~lr:ent 3E Ah~Zana arrive Tanor+~c. Ontnh.~,a dean. S.i.k!Hadam~ Oast auditoria; gef.o.~.tYe, tlabkinb 5 Sv.£.Ze one ~eQthezn~ .i.N ~t!^.2 eu:vu:.aE cudi;~t a~ auh ;S•inan~ e.#ate~+enfie. Pkeae2 pac N u~aa~Ce~aacuax 4eczm~en 31~981¢.~us~ he apace ~rnvv.tded~ba£ow;ri a6 K,Z:ndky eag r ztua .~¢~teh and h2tun.n ,it dinectCy #A ae,Q,o.%tte, Na.e'una and SeZ: b. P.O. Sax sea, aehawa, Onta~+.io. A ne~rv. enveEape io arcZaaed San ~rvWc convZn.i.>rnGe. Voune #rw:~, ~ Q~~ Kt~1th'r A, Camp6¢.~E, C.R., S,Com., Tneaa en. KAC/,9>< The aa.Z.~o~9 amau~vt wa.a on depas.i:t wLth xhe Town a~ !,'¢~reaatee ati Dec¢.mb¢/c 31, 1481 THlg I8 EXHIBIT "B" tc thz Detlarstioa a£ ~ Lt7:I3 ALBkOL'ANDI, sworn before se this $ is ~ . ~`~ ~~' of 199). t A ~Cammisaioner a*_c. ATTACHMENT N0. 1 REPORT N0. WD-61-97 - ~Ea 1E •97 1E: 13 TQ:;a16s368O'f6 FRGM: T-g65 P.a~ ruol Y.U9lfy ,IDp-lii . . I ~. ~~~ CANA~1Al~i fMPERtAL , t9ANK OF CgMM~I~' E _,' mow' /`/G/~`„_ SEp ~ 21975 ~"" ,/ , -. -, ~ ~; . ,... -i;T.i. ' '~liN1vBRS'I~gOI~TO OdI7.IN(3T6N (, .. F Ttl~'•'~•K`f:O11Y1 .I~S.Ttitel~ ;2C ip ~ AL'';i~Q.4R'21E $2~~~~GO PAY To nE-~ ~~~' +f~QZi'•OF 'P3~E ~O{iN G&' gRbLA OF i. J M'iEfPiF .~ *'~'~"~~"X'~'~"~'1Fi('14'1!'~'9l'>i'!F+!'1k1WF'~`It'M'1I'M!F ' 1 ~ ~ ~~ ~ ~NNI ~ 1 P.• ~'tNl~ 41NN ~. 'i'1 p~1.~AAl;s ~ .:. .:~~ •g ~" y p, RIt,OK . khDi" t~Y~l, A'naovnhlOi LtNn -• r. t GIJARENT ACCOUNT '~ CWE6t3E NUMSEA ~:G 5 i~ 2~I~t3 LOt p9m 300' E '~ ~~~ %~~~. "~ ~ eut to ee.as,cvtaN ' • TAIS I8 IIH_S "A" tc the Declaratior. of LOUIS AlD&OVANbI, sr,*orn before me this day of lgg7, .. _ .. l f Hn. ~ SEP ~ 2 i9~$ rout ro Tt~a C City oP 2faxcaatl ~~ 000 ~ Fte s SoYiaa 8oad ~'~ i jQ'6OA1lAt I I v A Cownissioner etc. ' r. ~. . SEP 23 '97 11:49 FR ' SEP 19 '97 16:12 ?0: 141586E~0306 FRlS1: } ~E~~QN CANADA ) PROVINCE OF ONTARIO ) RECRUNAI hllllNIC1PAEITY OF DUR!lAhi ) TO *8at3072759196552 P.03%a8 -1365 P. 02 i !, LOlilS ALiYltOVANpl, of the Clgj of Toronto In the Municipality of Metropolitan Toronto, do soiernnty declare: ~ ~ , 1 . tarn the declarant herein and zs sudtt have knrnxiedge pf rite matters hereinaRer deposed. i 2. tam one of the parCtes Ca an Agfeemeht between the Corporation of ;t+e ,'Vluriclpality of Ctar;ngton anel Los;is Adrovandl. Lino Atdrovandl and Guido Brvni. 3. (aursuank to the terms of the said agreernurt ttra sum of 516,000.OC, was paid tv the Corparaiian of tha Town cf Newcastle (now! the Municipattty Of CJartngion) as evidrrtced by Ne cvpy of the cI-;egos and cheque stub rated 5ept•tmbes' 22nd, I978, copies of which are attached herein and marked as EXhIbB "A" to ibis my Decl~rat;on, and the ie:tter from tt+e Town of Newcastle, dated December 30th: I9+sI. w Lewis A1d;wa;tdij aCOi9y Of whlt3+ >s atached hereko and rnaiicad as ~X}11bit "B" to this my 1~iaratlon. 4. 7}+e Town of Newcastle ha; held thpx fw~ds since 1978, None of the wane pursuant m the terms of the agreement has teen penarrned. 5. 1 am making this dec;ararior. On behalf of myself, Lino Aldrnvandl a,7d the Estate of Carlda Brvni to have the sum of $16,JOO.tlO, returrjed tb us. And 1/We make this solemn declaration conscientiously believing it to be true and knowing trot it is of the same force and eF.e<t as if made under Vath and by virtue eff the "Canada Evldenr~ A~,• DECLARED before me at the City or t:ashau,a I } ' in the A.egionat Munitlpality of Durham ) this day Of 1997. '~, ) . A Commtsaioncr e!c. ATTACHMENT N0. 2 REPORT N0. WD-61-97 SEP 23 '97 11:50 FR TO x'.500072^5515©%2 F'. X5/05' THIS AGREEMENT made as of the 29th day of September, 1997. BETWEN: THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON (hereinafter referred to as the '.Municipality") -and- LOUIS ALDROVANDI, LT.'VO ALDROVANDT AND THE ESTATE OF GUIDO BRUNI (hereinafter collectively referred to as the "Applicants") WHEREAS: A. The Municipality and the Applicants entered into an agreement made the 29th Day of September, 1978 (the "1978 Agreement") a true copy of which is contained in Schedule "A" annexed hereto which provides for the improvement of a portion of Selina Road (the "Road Improvement"); B. On or about the 29th day of September, 1978, the Applicants paid to the Municipality the sum of 516,000 (the "Contribution") by certified cheque (a true copy of which is contained in Schedule "B" annexed hereto) as their contribution towards the cost of the Road Improvement; C The Road Improvement has not been completed and the parties agree that they do not wish to proceed with the Road Improvement; D. The Applicants have requested that the 1978 Agreement be terminated and the Municipality return the Contribution to them without interest or deduction; and E. The making of this Agreement authorized by Bylaw No. 97• passed on the 29th day of September, 1997 a copy of which is annexed as Schedule "C'. NOw THEREFORE THIS AGREEMENT WITNES5ETH that in consideration of the premises, and of the covenants and agreements hereinafter contained, the parties agree as follows: 1. The 1978 Agreement is hereby terminated and the parties shall have no further rights or obligations to or with each other under the 1973 Agreement except as specifically provided herein. 2. The Municipality shall forthwith deliver the sum 516,000.00 to the Applicants by cheque money order or bank draft payable to their order jointly. 3. The Applicants represent and warrant that: (a) Recitals A, B, C and D to this Agreement are true in substance and in fact: (b) the Applicants have not assigned their rights under the 1978 Agreement either in whole or in part; ATTACHMENT N0. 3 REPORT N0. WD-61-97 IU miJ4J~I,J•_,~yl ~u-~o~' ~'. ~~l: kJc .7• (c) they have made representations to any person(s) which would cause such person(s) to rely upon the agreement of the Municipality to complete the Road Improvement pursuant to the 1978 Agreement: and (d) they are the persons entitled to the repayment of the Contribution. 4. The Applicants will, from time to time and at all times hereafter, well and truly save, defend and keep harmless and fully indemnify the Municipality from and against all actions, suits, claims and demands whatsoever which maybe brought against or made upon the Municipality and from and against all loss, costs, charges, damages and expenses whatsoever which may be sustained, incurred or paid for by reason of the Municipality's reliance upon the representations and warranties of the Applicants, and that in case any action, suit, claim or demand be brought against or made upon the Municipality or any of its respective officers, servants, workers or employees, the Municipality may, upon written notice to the Applicants, and if not forbidden by the Applicants within the fourteen days thereafter, if the Municipality shall see fit, compromise any such actions, suits, claims or demands on such terms as the Municipality shall see tit, and the Applicants shall thereupon forthwith pay to the Municipality the sum or sums to be paid together with such sum as shall represent the reasonable costs of the Municipality or its solicitors in defending or settling any - such actions, suits, claims or demands, but if the Applicants forbid such compromise within the said period, or if no such compromise be affected, then the Applicants may be made party ro such actions, suits, claims or demands and will in every case fully indemnify [he Municipality, its officers, servants, workers or employees. 5. 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 L1C 3A6, Attention: Treasurer and the Applicants at Attention: .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. 6. This Agreement and everything contained herein shall enure to the benefit of and be binding upon the parties hereto and [heir respective (where applicable) heirs, executors, administrators, successors and assigns. 7• 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. -3- IN WITNESS WHEREOF, [his licence has been duly executed by the parties hereto as of the day and year first above written. THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON By: By: WITNESS: WITNESS: Mayor: Diane Hamre Clerk: Patti L. Barrie THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON BY-LAW N0. 97-204 Being a By-law to authorize the execution of an agreement between the Corporation of the Municipality of Clarington and Louis Aldrovandi, Lino Aldrovandi and the Estate of Guido Bruni 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 Corporation's seal, an agreement between Louis Aldrovandi, Lino Aldrovandi, the Estate of Guido Bruni and the Municipality. 2. THAT the agreement attached hereto as Schedule "A" forms part _ of this By-law. BY-LAW read a first and second time this 29th day of September, 1997. HY-LAW read a third time and finally passed this 29th day of September, 1997. MAYOR CLERK ATTACHMENT N0. 4 REPORT N0. WD-61-97