Loading...
HomeMy WebLinkAboutWD-27-93 THE CORPORATION OF THE TOWN OF NEWCASTLE REPORT Meeting: GENERAL PURPOSE AND ADMINISTRATION COMMITTEE File # Date: JULY 5, 1993 Res, Report#:___WD-27--33- File #: __B_-_02 A_9,003 By-Law# Subject: WILLOWBROOK GARDENS SUBDIVISION, PLAN 40M-1676, COMPLETION OF ALL OUTSTANDING WORKS Recommendations: It is respectfully recommended that the General Purpose and Administration Committee recommend to Council the following: 1. THAT Report WD-27-93 be received; 2 . THAT the Director of Public Works be authorized FORTHWITH to issue a 'Final Notification Letter' to Ashdale Capital Corporation Ltd. notifying it of its default, neglect, act or omission in failing to complete the construction or installation of the Works pursuant to the Subdivision Agreement with the Town such notice given pursuant to paragraph 5 . 17( 1) of the Subdivision Agreement and requiring that all outstanding Works be completed on or before August 13, 1993 . 3 . THAT, if all outstanding Works are not completed by the August 13, 1993 to the satisfaction of the Director of Public Works, the Treasurer is authorized to present the letter of credit (P.26010T06206) deposited with the Town in respect of the construction and maintenance of the Works and other obligations provided for in the Subdivision Agreement for payment at the issuing bank. 4 . THAT the Director of Public Works and the Treasurer be authorized to expend the monies received from the presentation of the letter of credit to satisfy the Owner's obligations in respect of the completion of the construction and the REPORT NO. : WD-27-93 PAGE 2 maintenance of the Works in accordance with the Subdivision Agreement. 5 . THAT Ashdale Capital Corporation Ltd. and the Royal Bank of Canada be advised of Council's decision and be provided with a copy of Report WD-27-93. REPORT 1.0 ATTACHMENTS No. 1: Key Map No. 2 : Copy of letter from Owner's Engineer, dated June 3, 1993 No. 3: Copy of Letter to Owner, dated June 7, 1993 No. 4: Copy of Pertinent Excerpts from the Subdivision Agreement No. 5: Copy of proposed 'Final Notification Letter' to Owner 2.0 BACKGROUND 2 . 1 The Corporation of the Town of Newcastle entered into a Subdivision Agreement, dated August 22, 1991, with Ashdale Capital Corporation Ltd. as Owner to develop lands located in Bowmanville by a plan of subdivision (Attachment No. 1) . The Subdivision Agreement required that the Owner construct a storm sewer system; stormwater management works; all roadworks, including hotmix paving, curbs, sidewalks, topsoil and sodding of boulevards, paving of driveway entrances, I street lighting, street trees; noise attenuation fencing, and reconstructing Bradshaw Street, hereinafter referred to as the 'Works ' . i 2 .2 At the time of entering into the Subdivision Agreement, the Owner deposited with the Treasurer a letter of credit j (P26010T06206 issued by the Royal Bank) to secure the i construction and maintenance of the Works required and other obligations provided in the Subdivision Agreement. The present amount of the letter of credit is $1, 836,294 . 10 . I REPORT NO. : WD-27-93 PAGE 3 2 . 3 The initial Works were completed by the Owner in the fall of 1991. Since that time numerous complaints have been received from residents regarding the lack of construction activity within the subdivision. Despite attempts by staff to contact the Owner to expedite the Works, the Owner has not responded and no action has occurred to date. 2 .4 A letter was received from the Owner's Engineer, G. M. Sernas and Associates Ltd. , dated June 3, 1993, advising that they had withdrawn their services and were proceeding with lien action against Ashdale Capital Corporation Ltd. (Attachment No. 2) . 2 .5 Public Works staff issued an advisory letter on June 7, 1993 notifying the Owner that a report to Council was being prepared which could be averted if immediate action was taken to initiate the Works (Attachment No. 3) . Again, no action or response has occurred to date. 2 . 6 The outstanding Works include, but are not necessarily limited to: base asphalt repairs, curbs, sidewalks, surface asphalt paving, driveway approach paving, boulevard sodding, street trees, sound barrier fencing and the reconstruction of Bradshaw Street. Staff estimates the cost of completing all outstanding Works to be approximately $1, 100,000 . 00 . I 2 . 7 Pursuant to paragraph 5 . 17( 1) of each of the Subdivision Agreement (Attachment No. 4) , the Director of Public Works after receiving the authority of Town Council may give the Owner notice in writing of the default, neglect, act or omission of the Owner in not constructing or installing or causing to be constructed or installed any of the Works required by the Subdivision Agreement. On the later to occur of ten ( 10) business days after the giving of such notice or I such additional period as may be specified in the notice, the Town, at the cost and expense of the Owner may employ a contractor or such workmen and purchase such services and/or 4 i REPORT NO. : WD-27-93 PAGE 4 required for the proper completion of the Works in accordance with the Subdivision Agreement. 2 . 8 To ensure the Town can carry out the completion of the outstanding Works this construction season, if the Owner does not complete all outstanding requirements by August 13, 1993, the Town will proceed with completing the Works at the full expense of the Owner. In order to protect the Town's interests and ensure there are no delays in accessing the security for the Works, it is recommended that the letter of credit be drawn down for its full value. Respectfully submitted, Recommended for presentation to the Committee, ----------------------- --------------- -�`,---------- Walter A. Evans, P Eng. , Lawrence E. Kot e0l Director of Public Works Chief Administ ati`fe Officer NC*WAE*ph June 23, 1993 Attachments pc: Ashdale Capital Corporation 85 West Beaver Creek Road Richmond Hill, Ontario L4B 1K4 Fax: 881-8116 Attention: Mr. J. Cornacchia Royal Bank of Canada, Regional Corporate Centre, 40 King Street West, 8th Floor, Oshawa, Ontario L14 1A4 Fax: 436-7347 i Attention: Mr. R.W. Lawrence i ILL 0 WDR 0 OK BD VISION 4 , 676 w f-- w w � Q z Q Q = w 0 Q m m CONCESSION STREET owl 1 � o0 00 0 00 oa °o �o�o°oo C:\ATTACHS\SUBD\WILLOW DRAWN BY. JM DATE: JANE 9993 ATTACHMENT N0, 1 KEY MAP 6f-27-93 June 3, 1993 s • Sernas Ltd. Consulting Engineers&Planners VIA FACSIMILE AND MAIL 110 Scotia Court, Unit 41 Whitby,Ontario Ll N BY7 Telephone:(416) 437_-7878 Town of Newcastle Toronto Line:(416)428-9049 40 Temperance Street Fax:(416) 432-7877 Bowmanville, Ontario L1C 3A6 Attention: Mr. A.S. Cannella, C.E.T. Manager of Engineering Dear Sir: RE: ASHDALE CAPITAL CORPORATION LTD. PLAN 40M-1676 TOWN OF NEWCASTLE OUR PROJECT NO. 88242 Please be advised that G. M. Sernas & Associates Limited has withdrawn our services and proceeded with lien action against Ashdale CApital -Co.rporatiori-Ltd: for non-payment of professional fees on the Willowbrook Gardens Subdivision. We will continue our attempts to resolve this issue with our client and will inform you, in writing, should a satisfactory resolution be attained. In the interim, it is asked that all correspondence and items requiring action be forwarded directly to Ashdale. Should you wish to discuss this matter further, we would be pleased to meet with you at your convenience. Yoursvery truly, ��,,".• _. .r� �:...z G. M. 3'� AS`-' 0CIATES LIMITED � q�� _, � � _ J� �i`-�� �S'+its � f"--- Pf.­,i e Answer ~F f / ;F l TO ; Irv�siigate F";:or: Reg a1d D.�W� ster, P. Eng. j --- I:.IL: t;:;i,•;:; �.-'ak>;•ini;prid:crt;•;n; President & General Manager �, (U 5 1 RDW/1 ob cc: Region of Durham, Attn: Mr. C. Curtis, P.Eng. Pilen Construction, Attn: Mr. T. Marchese Ashdale Capital Corporation, Attn: Mr. J. Cornacchia Snell, Fraser Lawyers, Attn: Mr. S. Mutch G.M. Sernas & Associates Limited, Attn: Mr. N. Mensink, P.Eng. Attn: Mr. D. Dwyer, C.E.T. ATTACHMENT N0. 2 WD-27-93 i i MISSISSAUGA WHITBY OTTAWA --TT,�'ttlw"r,- �'1il«lSf e ONTARIO June 7, 1993 Ashdale Capital Corporation 85 West Beaver Creek Road Unit 2 Richmond Hill, ON L4B 1K4 FAX: 881-8116 ATTENTION: Mr. J. Cornacchia Dear Sir: RE: WILLOWBROOKE SUBDIVISION, BOWMANVILLE PLAN 40M-1676 On May 11, 1993 , this office sent a letter to your consultants, G.M. Sernas and Associates Limited requiring that a schedule be forwarded showing the completion of remaining works . I have attached a copy for your reference. No response was received from your office. On June 3, 1993, we received a letter from G.M. Sernas and Associates Limited (also attached) , advising that they have 'withdrawn our services ' relating to your project. In addition, this office has received calls from residents requesting that surface works and fencing be completed. Since there has been no recent activity in that regard, it appears the works are abandoned. Since this situation contravenes sections 5 . 3, 5 . 17 and Schedule 'I ' of the Subdivision Agreement, we are proceeding with a report to Council under section 5 . 17 of the agreement. i i ATTACHMENT N0. 3 WD-27-93 .2 � x) 28 CORPORATION OF THE TOWN OF NEWCASTLE . . .2 Should you wish to avert this action, we would suggest that you immediately: i. Resolve the status of your engineer; and 2 . Submit a schedule outlining prompt completion of appropriate surface works and fencing. Yours truly, VL I'J Norman A. Clark, C.E.T. Construction Supervisor NAC/ce pc: A.S .- Cannella, Manager of Engineering R. Webster, G.M. Sernas & Associates Ltd. Ix2- 9 Page.'47 5.17 Incomplete or Faulty Works and Liens (1) If, in the opinion of the Director, the Owner is not constructing and installing or causing to be constructed or installed any of the Works required by this Agreement so that it will be completed within the time specified for such completion in the Schedule of Works, or if the Works are being improperly constructed or installed, or if the Owner neglects or abandons the said Works or any part of them before completion, or unreasonable delay occurs in the execution of the same, or for any other reason the Works are not being constructed or installed properly and promptly and in full compliance with the provisions of this Agreement, or the Owner neglects or refuses to reconstruct or reinstall any of the Works which may be rejected by the Director as defective, deficient or unsuitable, or the Owner in the opinion of the Director otherwise defaults in performance of this Agreement,then in any such case after receiving the authority of the Town Council, the Director may give the Owner notice in writing of such default, neglect, act or omission. Following the later to occur of the expiry of ten (10) business days, excluding Saturdays, after the giving of such notice and the expiry of such additional period as may be specified in the notice given to the Owner by the Director, the Town, at the cost and expense of the Owner, may employ a contractor or such workmen and purchase such services, supplies and/or services as in the opinion of the Director are required for the proper completion of the Works in accordance with this Agreement. In cases of an emergency, as determined by the Director in his discretion, any deficiency(s) or defect(s)in the Works, or any failure to complete the Works in accordance with this Agreement, may be corrected or remedied by the Town at the cost and expense of the Owner without prior notice to the Owner, provided that forthwith after the Town so acts, the Director shall give written notice to the Owner describing the emergency, the action taken by the Director, and the cost of correcting the deficiency or default in question. The cost of any work which the Town undertakes under this paragraph 5.17(1) shall be determined by the Director in his discretion and his decision shall be final. It is understood and agreed by the Parties that the cost for which the Owner is responsible under this paragraph 5.17(1) shall include a management fee to the Town either of thirty (30%) percent of the contractor's charges to the Town (including any charges for overhead and profit) or, if such work is undertaken by the Town, thirty (30%) percent of all costs incurred by the Town to complete the Works in question. The Owner shall reimburse the Town for the cost of all Works, and the cost of correcting or remedying all deficiencies, defects and defaults pursuant to this paragraph 5.17(1) which have been incurred by the Town forthwith after the Director gives the Owner written demand for payment of such cost. ATTACHMENT N0. 4 j ) 3 0 WD-27-93 Page 4$ (2) In the event that any construction liens are filed under the Construction Lien Act, such filing(s) shall constitute a default in performance by the Owner of this Agreement. In any such case, the Director may notify the Owner in writing of such default. If the Owner fails to discharge the lien claimant within ten (10) business days, excluding Saturdays, after the giving of such notice, or within such further period of time as may be specified in the notice, then the Town may pay the full amount of the claim and costs into a Court of competent jurisdiction. The Town is hereby authorized by the Owner to draw on and appropriate the whole or any portion(s) of the Performance Guarantee to indemnify the Town against the costs and expense so incurred by the Town. In the event that the Town draws on and appropriates any portion.of the Performance Guarantee to satisfy the claim of any one (1) or more construction lien claimants and costs, forthwith after the Director gives written notice to the Owner requiring it to do so, the 0,Aner shall reinstate the Performance Guarantee and/or the Security for the Maintenance Guarantee, as the case may be, to the full amount(s) required under the provisions of this Agreement. 5.18 Entq for Emergency Repairs In addition to the Town's other rights under this Agreement, the Owner acknowledges and agrees that at any time and from time to time, employees or representatives of the Town who are authorized by the Director, or contractors retained by the Town may enter on the said Lands for the purpose of making emergency repairs to any of the Works. Such entry and repairs shall not be deemed to be an acceptance of any of the Works by the Town, nor an assumption by the Town of any responsibility or liability in connection therewith, or a release by the Town of the Owner from any of its obligations under this Agreement. 5.19 Damage to Existing Senices Forthwith after written demand therefor is given by the Director to the Owner, the Owner shall pay to or to the direction of the Town, the cost of repairing any damage to any property or services of the Town, the Region, or any utility authority or company or (the "Damaged Services") including without limiting the generality of the foregoing, any road(s), water, electrical, gas, telephone, cable television and sewer systems, and the cost of relocating any Damaged Services, caused by or resulting from the development of any one (1) or more portions of the Lands, or the construction or installation of any of the Works,provided that all such repairs and or relocation(s) are completed to the satisfaction of the Director, the Region and the relevant utility authority or company which owns or is responsible for the Works, property or services in question. In addition, the Owner agrees with the Town, at the Owner's cost, to relocate any of the Works constructed or installed ! pursuant to this Agreement which are located in driveways or so close thereto as in the July 5, 1993 Ashdale Capital Corporation 85 West Beaver Creek Road Richmond Hill, Ontario L4B 1 K4 Fax: 881 -8116 Attention: Mr. J. Cornacchia Dear Sir: RE: WILLOWBROOK GARDENS SUBDIVISION, BOWMANVILLE, PLAN 40M-1676 TOWN OF NEWCASTLE OUR FILE: B.02.09.003 --FINAL NOTIFICATION LETTER-- This letter will serve as notice, as stipulated under Section 5.17 of the Subdivision Agreement between the Corporation of the Town of Newcastle and Ashdale Capital Corporation, that, in the opinion of the Director of Public Works, you have defaulted in performance under the conditions of the agreement. Due to a lack of progress on the above-noted subdivision, you are hereby notified that you have until August 13, 1993, to complete all outstanding works to the satisfaction of the Director of Public Works which include but are not limited to: 1 . Carrying out base asphalt repairs; 2. Completing all appropriate curbs, sidewalks and driveway aprons; 3. Completing all boulevards, including sod and street trees; 4. Completing all noise attenuation and chain link fencing; 5. Completing surface asphalt; and 6. Completing Bradshaw Street reconstruction. All works are to be completed to the satisfaction of the Town of Newcastle and require the full time supervision of your consulting engineers, G. M. Sernas and Associates Ltd. Public Works' staff will review the status of these works with your consultant just prior to the August 13 deadline. Any works not completed to our satisfaction will then be carried out by the Town, at your full expense, in accordance with the terms and conditions of the Subdivision Agreement. Yours truly, W. A. Evans, P. Eng. Director of Public Works NAC:ph ATTACHMENT N0. 5 WD•--27•-93 PC: Marie Marano, Treasurer Pattie Barrie, Clerk A. S. Cannella, Manager of 'Engineering Royal Bank of Canada, Regional Corporate Centre, 40 King Street West, 8th Floor, Oshawa, Ontario L14 1A4 Attn: Mr. R.W. Lawrence i w