HomeMy WebLinkAboutWD-68-90 '" " r . TOWN OF NEWCASTLE
REPORT
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By-Law #
MEETING: GENERAL PURPOSE AND ADMINISTRATION COMMITTEE
DATE: JULY 9, 1990
REPORT #: WD-68-90 FILE #:
S1J$,ECT: GEARING FARMS LIMITED, PLAN 1OM-751
COMPLETION OF OUTSTANDING WORKS
RECOMMENDATIONS:
It is respectfully recommended that the General Purpose and
Administration Committee recommend to Council the following:
1. THAT Report WD-68-90 be received;
2 . THAT the Director of Public Works be authorized FORTHWITH to issue
a Final Notification Letter to Gearing Farms Limited (Plan 1OM-
751) , and his solicitor, stating a completion deadline of
August 24, 1990 for all outstanding works;
3 . THAT upon expiration of the aforementioned deadline, the Director
be authorized to take all necessary actions to correct and complete
all outstanding works at the cost of the developer;
4 . THAT funds required for such works be recovered by drawing down the
developer's Letter of Credit, in accordance with the terms and
conditions provided for in the Subdivision Agreement between
Gearing Farms Limited and the Town of Newcastle; and
5 . THAT Gearing Farms Limited and the Royal Bank of Canada be advised
of Council's decision and be provided with a copy of Report
WD-68-90 .
1 0991 1
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REPORT NO. : WD-68-90 PAGE 2
REPORT
1.0 ATTACHMENTS
No. l: Key Plan of Plan 1OM-751
No.2 : Copy of Pertinent Excerpts from the Subdivision
Agreement
No. 3: Copy of Final Notification Letter to Developer
2.0 BACKGROUND
2 . 1 The Town entered into a Subdivision Agreement registered on title
September 30, 1983, with Gearing Farms Limited to develop lands by
plan of subdivision, located in Courtice and described as Plan 1OM-
751 (Attachment No. l) . The agreement required Gearing Farms
Limited to construct the roads, street trees, street lighting, a
storm drainage system, and placing of topsoil and sodding of all
ditches .
2 .2 In 1984 the construction of the works including grading, granular
base and sub-base, base asphalt, placing of topsoil and sodding of
ditches and street lighting was completed. The developer was
required to maintain these works upon completion to the
satisfaction of the Director of Public Works and in accordance with
the provisions of the subdivision agreement.
2 . 3 Since the completion of the roads to the base asphalt stage in
1984, there have been numerous concerns raised by the residents of
this development regarding the outstanding deficiencies of the
roads and the timing for the completion of the roads (placement of
surface asphalt) .
2 .4 The outstanding deficiencies include, but are not necessarily
limited to, repairs to road culverts, the regrading of the ditches
and especially repairs to the base asphalt which requires immediate
attention to address the pavement cracking that has occurred.
109 `' 12 . . .3
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REPORT NO. : WD-68-90 PAGE 3
2 .5 Public Works staff have had ongoing discussions with the developer,
his solicitor and his engineering consultant regarding timing of
the completion of these deficiencies and the placement of surface
asphalt. These works remain outstanding and we have not received
a positive response to our concerns . We therefore, consider the
developer to be in default of his obligations under the terms of
the Subdivision Agreement.
2 .6 In order to effectively expedite the correction of these
deficiencies and the completion of the surface asphalt this summer,
the provisions of the subdivision agreement, Section 5 . 17 shall be
invoked.
2 .7 Under Section 5 . 17 of the Subdivision Agreement . (Attachment No.2)
the Director of Public Works has the authority to order the work
completed at the expense of the developer, subject to the approval
of Council and upon written 'Notice' being given to the developer
and his surety (refer to Attachment No. 3) .
2 .8 In the event the developer does not complete the outstanding works
by August 24, 1990, the Town will proceed with these works at the
expense of the developer. The Town currently holds a Performance
Guarantee to ensure the completion of these works, in the form of
an irrevocable Letter of Credit in the amount of $46,531.58, which
exceeds the value of the outstanding works which is estimated to
cost $30,000 .
3.0 RECMMNDATIONS
3 . 1 THAT the Director of Public Works be authorized FORTHWITH to issue
a Final Notification Letter to Gearing Farms Limited (Plan 1OM-
751) , and his solicitor, stating a completion deadline of
August 24, 1990 for all outstanding works;
3 .2 THAT upon expiration of the aforementioned deadline, the Director
be authorized to take all necessary actions to correct and complete
all outstanding works at the cost of the developer;
n 9 1 -�
REPORT NO. : WD-68-90 PAGE 4
3.3 THAT funds required for such works be recovered by drawing down the
developer's Letter of Credit, in accordance with the terms and
conditions provided for in the Subdivision Agreement between
Gearing Farms Limited and the Town of Newcastle; and
3 .4 THAT Gearing Farms Limited and the Royal Bank of Canada be advised
of Council's decision and be provided with a copy of Report
WD-68-90.
Respectfully submitted, Recommended for presentation
to the Committee,
r
Walter A. Evans, P.Eng. , Lawrence Kotseff,
Director of Public Works Chief A i istrative Officer
ASC*WAE*llv
June 26, 1990
Attachments
Gearing Farms Limited
Box 12
R.R. #3
Bowmanville, Ontario
L1C 3K4
The Royal Bank of Canada
Ontario International Centre
Royal Bank Plaza
180 Wellington Street West
Toronto, Ontario
M5J 1J1
1 0991 4
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PEBBLESTONE ROAD
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fy� ATTACHMENT NO, 1
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MAP -68-90
109915
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3.0 IPIDEI11IFICATIQII OF TO1111 AND I11SUPAIIC°
The Owner covenants and agrees to indemnify the Town against all actions,
causes of actions, suits, claims and demands whatsoever and howsoever caused,
which arise either by reason of the development of the said lairds, or the
undertaking of the design, construction, installation and maintenance of the
Works and Utilities. The Owner agrees to indemnify the Town with respect to
all such claims notwithatandi, the issuance of a Certificate of Release
provided for in this Agreement. The Owner shall also provide the insurance
called for by Schedule "R" of this Agreement.
3.9 I•IAINTENANCE GUA1?AIdTEE PE1?IOD
In order to guarantee that all defects in the Works which become apparent
after the issuance of a Certificate of Completion for such Works, will be
properly repaired or replaced, the Owner shall, prior to the issuance of the
Certificate of Completion for such Works, lodge with the Town a maintenance
Guarantee in the form of cash or an irrevocable letter of credit from
chartered Canadian bank and in an amount equal to ten percent (10%) of the
estimated cost of the Works as set out in Schedule "J" hereto. Tho form of
the Maintenance Guarantee shall be subject to the approval of the Town
Solicitor, and the Town Treasurer, and shall guarantee the Works for two (2)
years from the date of completion.
3.10 USE OF RAIIITEIIAIICE GUARAIITEE
The Owner agrees that the Town may at any time, by resolution of Town Council,
authorize the use of all or any part of any Maintenance Guarantee if the Owner
fails to pay any costs payable by the Owner to the Town under this Agreement,
by the due date of the invoice for such costs.
3.11 REQUIPREIIERTS FOR RELEASE OF PZnFOni•QCE GUt:P.AI.1TEE
The Owner agrees that the Town shall not be obliged to release to the Owner
the unused portion of any Performance Guarantee until:
(1) a Certificate of Completion has been issued for the Works for
which such Performance Guarantee was required; and
(2) the Owner has deposited with the Town a Maintenance Guarantee
applying to whose Works for which such Performance Guarantee was required; and
(3) the Town is satisfied that in respect of the construction and
installation of the Works for which such Performance Guarantee was required,
there are no outstanding claims relating to such Works.
(yo-) the Tot•In may, from time to time, reduce the amount of the vaue of
the Performance Guarantee to reflect the progress of the Works required to an
amount equal to the vaue of the uncompleted Works, plus ten percent (10%) of
the vaue of the completed Works on approval by the Director of a Progress
Certificate prepared by the Owner's Engineer.
3.12 REQUIREMENTS FOR RELEASE OF IIAINTEPAi-iCE GUARAIITEE
(1) The Owner agrees that the Town shall not be obliged to release to the
Owner the unused portion of any Maintenance Guarantee until:
(a) a Certificate of Acceptance has been issued for the Worts for
which such Iaintenance Guarantee was required; and
(b) the Town is satisfied that, in respect of the maintenance of
all of the Works for which such Iaintenance Guarantee was
required, there are no outstanding claims relating to such
Works.
(2) The Town shall release to the Owner the unused portion of any
Maintenance Guarantee upon fullfillment of Clause (a) and (b) of subparagraph
(1) hereof.
AITACHi IF JT NO, 2
VM. -68-90
109916
3.13 Pa_y12rITT of MUNICIPAL COSTS
(1) Every provision of this Agreaaci:t by which to Onaz in obliged in nny
Tray shall be deemed to includu the words "at the mipence of the Ulmer" unle::c
the context othonAse requires.
(2) The owner shall reisbu:se the To;;n for all reasonable A&A e::ponues
actually incurred for the preparation `W registration of this Q cement, and
the legal services contemplaW by tits t;'non of thin ASseement, which shall
include review o2 perfor_•ance ;unran'too ond the preparation of any release.
(3) The Other shall have tic ri.30 to inspect, upon recconablo notice,
during re&,ular business hours, such accounts, invoices, tiale records end other
docuneutc and calculations of chnnGos fo;: which the Tosin is soehin
rei.mburocuant.
(4) The Owner shall pay to the Town for all enSineer&3 and inspection
costa in accordance with the provisions of Schedule "n" hereto.
3.14 ui-.r'.ID shuns
The Due date of any ouAh of S.ioney payable hereiii, t .less a shorter timne is
specified, shall be thirty (34) d ya after the date of the invoice. Interest
at one and one—half per cent (i 1/2°x) per "onth shall be payaihle by the Owner
to the Town on all sums of :,Toney payable herein, which are not paid on the due
dates, calculated from such due Gate.
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101991 /
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5.14 SEOUMUCE Or Con JCTIOII t•rlD iNSTALLATIOIT
The Owner shall, upon the issuance of an Authorization to Commence Works,
proceed to construct and install all of the Works Continuously and as required
by the approved Schedule of Works.
5.15 C011PLETIO17 1I11E FOP. COUSMUCTi011 6L1D INSTALLATION
The Owner shall, within two (2) years of the date of the issuance of an
Authorization to Commence Corks, complete the construction and installation of
all of the Works authorized in such Authorization to Commence Works with the
exception of the curbs, oidevalks, final coat- of asphalt, final lot Grading,
driveway approaches, sodding and tree planting.
5.16 ADDITIONAL FACILITIES OR WORK RQUIRED
If, in the opinion of the Director, any minor or incidental additional work is
required to provide for the adequate operation and functioning of the Works.,
the Omer shall, until the conclusion of the maintenance guarantee period,
construct or install such additional facilities and perform such additional
wort: as the Town may request from time to time.
5.17 INCONTLETE OE FAULTY 1i0pd:
If, in the opinion of the Director, the Owner is not enecuting or causing to
be executed the Work required by this Agreement, in such a runner that it will
be completed within the time specified for such completion, or if the said
Work is being improperly done, or if the Owner neglects or abandons the said
Work, or any part of it, before completion, or unreasonably delays the
execution of the same, or if in any other manner the said Work is not being
done properly and promptly in full compliance with the provisions of this
Agreement, or in the event that the Owner neglects or refuses to do over again
any Work which may be rejected by the Director as defective or unsuitable, or
if the Owner in any other manner in the opinion of the Director may default in
performance under this Agreement, then in any such case the Director on the
authority of the Council of the Twin may notify the Owner and his surety in
:•:ritinS of such default or neglect and within ten (10) clear days after the
Giving of such notice or within such further period of time as may be
specified in the notice, the Town Council shall thereupon have full authority
and power immediately at its option to employ a contractor or such worhnen as
t in the opinion of the Director shall be required for the proper completion of
such work at the cost and expense of the Owner or his surety, or both. In
cases of emergency, in the opinion of the Director, such work may be done
without prior notice, but the Owner shall forthwith be notified. The cost of
such work shall be calculated by the Director, whose decision shall be final.
It is understood and agreed that the total costs shall include a management
fee of thirty (30%) percent of a contractor's charges to the Town (including
any charges for overhead and profit) or, if ouch work is undertaken by the
Town, thirty (30%) percent of all charges incurred to complete the work, it
being hereby declared and agreed that the assuming by the Owner of the
obligations imposed by this clause is one of the considerations without which
the I•?unicipality would not have executed this Agreement.
5.18 ENZ-Y FOP, Tu-iT RGENCY PEPAIRS
The Owner agrees that, at any time and from time to tine, employees or agents
of the Town may enter the said lands for the purpose of making emergency
repairs to any of the Works. Such entry and repairing shall not be deemed all
acceptance of any of the Works by the Town, nor an acsunption by the Town of
any liability in connection therewith, nor a release of the Owner from any of
its obligations under this F.greer.:ent.
5.19 DAMAGES OR RrmOCATI01i OF E TSTIITG SERVICES Or;
NEIGHBOUaING IMLLS
(1) The Owner agrees to pay the cost of repairing any damages to any
services which, without limiting the generality of the foregoing, shall
include road, water, electrical, Sao, telephone, cable television or saver
systems, and the cost or relocating any existing services, caused by the
development of the said Land or any of the work required by this Agreement,
provided all work is to be clone
1 0
i
k l TOWN OF
e nas I 6e
ONTARIO
Mr. Paul Gearing
Gearing Farms Limited
Box 12
R. R. #3
Bowmanville, Ontario
L1C 3K4
Dear Sir:
RE: GEARING FARMS LIMITED, PLAN 1OM-751
COMPLETION OF OUTSTANDING WORKS
This will serve as notice, as stipulated in Section 5 . 17 of the
Subdivision Agreement between the Corporation of the Town of Newcastle
and Gearing Farms Limited, that in the opinion of the Director of Public
Works, you have defaulted in the completion of the outstanding works
relating to Plan 1OM-751.
As such, you are hereby notified that you have until August 24, 1990,
to complete the outstanding works, which include, but are not limited
to the following:
1. Repairs to road culverts
2 . Repairs to base asphalt
3. Improvements to gravel shoulders
4 . Placement of surface asphalt
5. Installation of boulevard trees
6 . Regrading, topsoiling and sodding of section of ditch on
Gearing's Lane
7 . Regrading of ditch on Tooley's Road at Kresia Lane.
This list may be reduced depending on the amount and quality of work
carried out by your forces prior to the stated deadline. All works are
to be to our approval and require the full time supervision of your
consulting engineers, D. G. Biddle & Associates .
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r, 0 19 ATTACHMENT N0, 3
VID-68-90
CORPORATION OF THE TOWN OF NEWCASTLE
40 TEMPERANCE STREET • BOWMANVILLE , ONTARIO • L1C 3A6 - (4 16) 623-3379 < FAX 623-4169
. . .2
Public Works staff will review the works with your consultant, just
prior to August 24, or earlier if advised by your consultant that all
the deficiencies have been rectified.
Those works which are not completed satisfactorily will be completed by
the Town and we will pay for the works by drawing down on your Letter
of Credit.
Yours very truly
W. A. Evans, P. Eng.
Director of Public Works
ASC/llv
cc: Mrs . Marie Marano, Treasurer
Mr. Ralph Jones
A. S. Cannella, C.E.T.
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