HomeMy WebLinkAboutWD-26-93 THE CO A, THE MUNICIPALITY OF CLARINGTON
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REPORT
Meeting: GENERAL PURPOSE AND ADMINISTRATION COMMITTEE File #
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Date: JULY 5, 1993 Res.
Report#:__WD_-_2_6_-9_3_ File#: 0 0 6 By-Law#
Subject: TRULLS DELBERT SUBDIVISION, PHASES 1 AND 2,
PLANS 40M-1684 AND 40M-1685,
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-26-93 be received;
2 . (a)THAT the Director of Public Works be authorized FORTHWITH
to issue a 'Final Notification Letter' to 848601 Ontario Inc.
notifying it of its default, neglect, act or omission in
failing to complete the construction or installation of the
Works pursuant to the Phase 1 Subdivision Agreement with the
Town such notice given pursuant to paragraph 5 . 17 ( 1) of the
Phase 1 Subdivision Agreement and requiring that all
outstanding Works be completed on or before August 13, 1993 .
2 . (b)THAT if all outstanding Phase 1 Works are not completed by
August 13, 1993 to the satisfaction of the Director of Public
Works, the Treasurer is authorized to present the Phase 1
letter of credit (P14729TO6206 issued by the Royal Bank)
deposited with the Town (other than the letter of credit
deposited for the replacement of trees) for payment at the
issuing bank.
2 . (c)THAT the Director of Public Works and the Treasurer be
REPORT NO. : WD-26-93 PAGE 2
authorized to expend the monies received from the presentation
of the letter of credit referable to Phase 1 to satisfy the
Owner's obligations in respect of the completion of the
construction and maintenance of the Works in accordance with
the Phase 1 Subdivision Agreement.
3 . (a)THAT the Director of Public Works be authorized FORTHWITH to
issue a 'Final Notification Letter' to 848601 Ontario Inc. and
829633 Ontario Inc. notifying them of their default, neglect,
act or omission in completing the construction or installation
of the Works pursuant to the Phase 2 Subdivision Agreement
with the Town such notice given pursuant to paragraph 5 . 17(1)
of the Phase 2 Subdivision Agreement and requiring that all
outstanding Works be completed on or before August 13, 1993 .
3 . (b)THAT if all outstanding Phase 2 Works are not completed by
August 13, 1993 to the satisfaction of the Director of Public
Works, the Treasurer is authorized to present the Phase 2
letter of credit (P14743T06206 issued by the Royal Bank)
deposited with the Town (other than the letter of credit for
the replacement of trees) for payment at the issuing bank.
3. (c)THAT the Director of Public Works and the Treasurer be
authorized to expend the monies received from the presentation
of the letters of credit to satisfy the Owner's obligations in
respect of the completion of the construction and maintenance
of the Phase 2 Works in accordance with the Phase 2
Subdivision Agreement.
4 . THAT 848601 Ontario Inc. , 829633 Ontario Inc. , the Royal Bank
of Canada, Garvey Ferris and Mr. A. Cogo be advised of
Council 's decision and be provided with a copy of Report WD-
26-93 .
�3d
REPORT NO. : WD-26-93 PAGE 3
REPORT
1.0 ATTACHMENTS
No. 1: Key Map
No. 2 : Copy of Letter from Royal Bank of Canada, dated
June 4, 1993
No. 3: Copy of Letter to Owner c/o Delbert Development
Corporation, dated June 7, 1993
No. 4: Copy of Letter from Garvey, Ferris, dated June 11,
1993
No. 5: Copy of Pertinent Excerpts from the Subdivision
Agreement
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No. 6: Copy of proposed 'Final Notification Letter' to j
Owner
2.0 BACKGROUND
2 . 1 The Corporation of the Town of Newcastle entered into two
Subdivision Agreements, each dated September 20, 1991, with
848601 Ontario Inc . as Owner (in respect of Phase 1) and with
848601 Ontario Inc. and 829633 Ontario Inc. , as Owner (in
respect of Phase 2) to develop lands located in Courtice by
plans of subdivision (Attachment No. 1) . Each of the
Subdivision Agreements 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,
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street lighting and street trees and noise attenuation
fencing, hereinafter referred to as the 'Works ' .
2 .2 At the time of entering into the Subdivision Agreements, the
Owners deposited with the Treasurer letters of credit to
secure the construction and maintenance of the Works and other
obligations provided in the Subdivision Agreements . The
present amounts of the letters of credit other than the letter
of credit for the replacement of trees are $264, 118. 03
(P14729T06206) for the Phase 1 Works and
$284,533.51
l
4-4 ' ,�
REPORT NO. : WD-26-93 PAGE 4
(P14743T06206) for the Phase 2 Works for a total of
$548,651.54 .
2 .3 The initial Works were completed by the Owners in the spring
of 1992 . Since that time numerous complaints have been
received from residents regarding the lack of construction
activity within both the Phase 1 and Phase 2 subdivisions . At
a meeting with the Owners on May 25, 1993, Town staff were
advised that the lack of progress was due to a financial
matter between the Owners and their partner. Despite being
assured the financial situation was about to be resolved, no
action has occurred to date.
2 .4 Since the delay was due to financial matters, Public Works
staff liaised directly with the Royal Bank of Canada, the
first mortgagee of the Phase 1 and 2 Lands and the issuer of
the Phase 1 and 2 letters of credit. Although assured that
the matter would soon be resolved by correspondence from the
Royal Bank, dated June 4, 1993 (Attachment No. 2) , there was
no binding commitment expressed on the bank's or Owner's part.
2 .5 Public Works staff issued an advisory letter notifying the
Owners that a report to Council was being prepared which could
be averted if immediate action was taken to initiate the Works
(Attachment No. 3) . No action has occurred to date.
2 .6 A letter was received from Royal Bank of Canada's solicitors,
Garvey, Ferris, dated June 11, 1993 (Attachment No. 4) j
assuring Public Works staff that steps would be taken to
complete the Works forthwith. Staff immediately issued a
response letter similar to the letter noted in 2 .5 . Again, no
action has occurred to date.
2 . 7 The outstanding Works include, but are not necessarily limited
to: base asphalt repairs, curbs, sidewalks, surface asphalt
REPORT NO. : WD-26-93 PAGE 5
paving, driveway approach paving, boulevard sodding, channel
works, street trees, stormwater management works and sound
barrier fencing. Staff estimates the cost of completing all
outstanding Works in both Phases 1 and 2 to be approximately
$485,000 . 00 .
2 .8 A claim for construction lien has been filed recently with the
Clerk by the General Contractor, engaged by the Owners to
construct and install the Works, arising out of the Owners'
failure to pay the General Contractor for certain improvements
including the Works, work required pursuant to the Regional
Subdivision Agreement and work upon lots within the Phase 1
and 2 plans of subdivision. After deducting the cost to
complete the Works from the amount of the Phase 1 and Phase 2
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letters of credit it appears that the Town will have security
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for the Town's ten percent ( 10%) holdback liability. However,
the claim for construction lien has been referred to the Town
Solicitor for investigation, confirmation of the amount
claimed against the Town and follow-up.
2 .9 Pursuant to paragraph 5 . 17(1) of each of the Phase 1 and 2
Subdivision Agreements (Attachment No. 5) , the Director of
Public. Works after receiving the authority of Town Council may
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give the Owners notice in writing of the default, neglect, act
or omission of the Owners in not constructing or installing or
causing to be constructed or installed any of the Works
required by the Subdivision Agreements . On the later to occur
of ten ( 10) business days after the giving of such notice or
such additional period as may be specified in the notice, the
Town, at the cost and expense of the Owners may employ a
contractor or such workmen and purchase such services and/or
supplies as in the opinion of the Director of Public Works are
required for the
q proper completion of the Works in accordance
with the Subdivision Agreement.
_4 U t V
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REPORT NO. : WD-26-93 PAGE 6
2 . 10 To ensure the Town can carry out the completion of the
outstanding Works this construction season, if the Owners do
not complete all outstanding requirements by August 13, 1993,
the Town will proceed with completing the Works at the full
expense of the Owners . 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 Phase 1 and
Phase 2 letters of credit be drawn down for their full value.
Respectfully submitted, Recommended for presentation
to the Committee,
-- -------------------- ----�� � ={ --- r ---
- ----------
Walter A. Evans, P.Eng. , Lawrence E. K t eff,
Director of Public Works Chief Adminis ative Officer
NAC*WAE*ph
June 22, 1993
Attachment
pc: - Delbert Development Corporation
848601 Ontario Ltd. and 829633 Ontario Ltd.
5460 Yonge Street, Suite 212,
North York, Ontario
M2N 6K7
Fax: 886-6073
Attention: Mr. S. Nourmansouri
Royal Bank of Canada,
Regional Corporate Centre,
40 King Street West, 8th Floor,
Oshawa, Ontario
L14 1A4
I
Fax: 436-7347
Attention: Mr. R.W. Lawrence
i
Mr. A. Cogo
8 Meredith Court
Courtice, Ontario
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TRULLS'/DBLBBRT
SUBDIVISION
40M— 1684
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[DRAWN BY: JM DATE: JUNE 1993
ATTACHMENT N0, 1
KEY MAP WD-26-93
k weas t(e
ONTAQ10
June 7 , 1993
Delbert Development Corporation
5460 Yonge Street, Suite 212
North York, Ontario
M2N 6K7
Fax: 1-416-886-6073
ATTENTION: 848601 Ontario Ltd. and 829633 Ontario Ltd.
Mr. N. S. Nourmansouri
Dear Sir:
RE: TRULLS DELBERT SUBDIVISION, PHASES 1 AND 2
PLAN 40M-1684 AND 40M-1685
Due to a lack of progress on the above-noted subdivision, we are
directing you to ensure all appropriate outstanding works are
completed to the satisfaction of the Town of Newcastle immediately.
Despite our meeting of May 25, 1993 wherein you advised that your
financial status would be resolved by June 2, we did not receive
correspondence from your bank until June 4. Unfortunately, the
contents of their letter does not sufficiently commit to the
resolution of immediately completing the works .
As such, to protect the interests of residents within the
subdivision, we are proceeding with a report to Council in
accordance with section 5. 17 of the Subdivision Agreement.
ATTACHMENT N0. 3
-WD-26-83
. . .2
CORPORATION OF THE TOWN OF NEWCASTLE RCCYCICOFM(q
G - nNTAR10 • L1C 3A6 • (416) 623-3379 • FAX 623-4169
GARVEY, FERRISS
Barristers and Solicitors
' P.O. Box 56
Royal Bank Piar�i
Suite 3170, Saudi Tower
Toronto,OnUxio
M5Y 212
June 11 , 1993 Telephonc (= 16) 865-0222
Telecopier (4 16) 865-0410
BY FAX AND MAIL (�16) 865-1966
Town of Newcastle
40 Temperance Street
Bowmanville , Ontario
L1C 3A6
Attention : Mr. A. S. Cannella
Manager of Engineering
Dear Sirs :
Re : Royal. Bank of Canada and'
848601 ONTARIO INC.
We are solicitors for Royal Bank of Canada and hav!> been
retained to act on their behalf in connection with the above
Corporation. We refer to your letter of June 7 , 1093,
addressed to Delbert Development Corporation, a cony of which
was sent to Mr. Bob Lawrence of the Bank.
We met with our client today in this matter and wish to assure
you that steps will be taken forthwith to ensure the completion
of works secured by the Bank' s letter of credit.
in view of the above we would ask that you deter any call under
the Bank' s letter of credit so as to avoid further
complications .
Please give-kthe writer a call at any time if you w:.sh further
assurances - regarding the actions that we are and wall be
taking.
Yours truly ,
GARVEY 1ERRISS `
i�
1 J. Avis ATTACHMENT N0. 4
JA:kh WD-26-93
cc: Mr. Rolf S. Dawson
Manager, Head Office Special Loans Group
cc: Mr. R. W. Lawrence
Senior Account Manager , Real Estate
Page 43
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 t4is 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 ro 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.
(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
portions) 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 Owner 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 Entry 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
�w the Town may enter on the said LNQds for the purpose of making emergency repairs to any
r. 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
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04,9
:.x
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
848601 Ontario Ltd.
30 Wertheim Cres. , Suite 9
Richmond Hill, Ontario
L4B 1B9
t
7
08-31-93 03: 34PM FROM GM SERNAS TO MUNC, CLARINGTON F(1cl '
SCHEDULE "4"
J
G.M. Serna5
August 31, 1993 Oikssodates Ltd.
Consulting Engineers&Planners
alit of Clarin ton 110 Scotia Court,Unit 41
Municipality Y g Whitby,Ontario Li N$Y7
40 Temperance street Telephone!(416)432.7878
Bowmanville, Ontario Toronto Line;(416)686-6402
L1C 3A6 Fax:(416)432-7877
Attentions Mr. W. Evans , P. Eng.
Director of Public Works
Dear Sir:
RE: TENDER CLOSING
RECTIFICATION OF DEFICIENCIES & ABOVE GROUND WORK
TRULLS DELBERT SUBDIVISION - PRASE I
MUNICIPALITY OF CLARINGTON, CONTRACT NW93- 30
OUR PROJECT NO. 89012
Tenders for the above noted project were received and opened on
Wednesday, August 25, 1993 at 2 : 00 p.m. The following is a summary
of the four (4) tenders received.
TO':'AL
TENDERS TENDERED AMOVNT
1. Vaughan Paving Ltd. $ 295, 3131. 30
2. Harnden & King Construction 313 , 694 . 44
3 . Bennett Paving & Materials Limited 314 , 278. 27
4 . Con-Drain Company (1983) Ltd. 474 , 4:?4 .88
* Tendered amount adjusted to reflect items not to be
extended for consistency between tenders.
The Engineer ' s Estimate for the tendered work was $315, 274 . 86. In
comparison to the Engineer's Estimate, the 3 owest tender represents
a decrease of approximately $19 , 893 . 56 or 6 . 319,• .
We have. examined the three (3) lowest tender submissions and find
them to be complete and in compliance with general tendering
requirements .
Furthermore, we have analyzed the unit prices tendered on the three
(3) lowest tenders and have found the unit prices, bid to be
reasonable without evidence of unbalanr-:i.ng .
The contract is open for acceptance for a period of 3o days after
the tender Closing date of August 25, 1.993 . The contract work is
scheduled for completion within six (6) creeks after the date of
official notification to commence work .
i
U 1-19 1, ; -AF'M FF;O GIvi tiERNAS 11, r
i�III�I , ..AI<IhIGTUN F 003
G.M.Semas
ssociates Ltd.
Municipality of Clarington
Attn: Mr. W. Evans, P. Eng,
August 31, 1993
Page 2
Based upon the low tender received, that of Vaughan Paving Ltd. ,
the following is our summary of the project cost attributable to
the Municipality of Clarington.
TOTAL PROJECT CQST
Contract Tender Amount (Incl . GST) $280 , 841. 30
Contingency Items _ 14 , 540 , 00
Total Tendered $295 , 381. 30
Engineering &• Resident Supervision _ 29, 800.0_0.
Total $'25 , 181. 30
The contract work includes the repair of deficient portions of the
storm system and base roadworks, the completion of surface asphalt,
second stage concrete curb, concrete sidewalk, boulevard grading
and sodding, noise barrier fencing (where applicable) , and general
clean-up of debris located in the road .allowances .
Vaughan Paving Ltd. has indicated that J.t will not require the use
of sub-contractors on this project. Howevor, in subsequent
discussions, we were informed that Hesson Fence and Deck Ltd. has
been retained for the acoustical fence and that although paving is
intended to be completed by Vaughan Paving, specific scheduling
constraints may require a paving subcontractor .
Vaughan Paving Ltd. has completed works of: similar nature and
contract value. We are satisfied that they have the experience,
personnel and equipment required to f'ulf'il the contract to the
terms and conditions set out therein.
We therefore recommend acceptance of the low tender and award of
the contract to Vaughan Paving Ltd. subject, to the requisite
approvals.
Trusting the above is to your satisfaction, we remain.
Yours very truly,
G.M. Sernas & Associates Limited
Dale Dionne, P. Eng. , MBA Darre 1 Goudey, P. Eng.
Contracts Administrator Project Manager
DD:ml
cc: Municipality of Clarington, Attn: L.A. Birkett. A.M.C.T. (A)
Municipality of Clarington, Attn: Mr, No^m Clark
RONtAL BAN K
R.W.Lawrence Royal Bank of Canada
$enlor Aeeou-it Manager Reglonal Corporate Centre
Real Estate 40 King Street West, 8th Floar
Oshawa, Ontario U H 1 A4
Transit 08556
(415)436-6883 Fax: (416)436-7347
June 4, 1993 Direct X,ne(416)436-7197
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'Via Fax 623-4169
Ar. Norman Clark
-onstruction Supervisor
'Town of Newcastle
.40 Temperance street
avwmanville, Ontario
:)ear Mr. Clark;
:13s Primrose Subdivision Courtice/
848641 Ontario Inc,/Nourmansouri/
Parcel 3018, Section 40N-1684
Parcel 31 Concession 3
'this letter will confirm our conversation wherein we advised that the Bank is
:reviewing the viability of proceeding with the above eubdivieion as it pertains
°o the remaining 16 Townhouses and the costa to complete Phaise I servicing
including road works, curbs, sidewalks and streetscaping.
we hope to be in a position to move forward with this project the week of June
7, 1993.
'We trust this information will be of assistance, however, if there are any
additional questions, please do not hesitate to contact the writer.
'fours truly,
AWL/j d
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ATTACHMENT N0. 2
WD-26-93
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T,E TOWN 0- .
ew(ast(e
ONTARIO
June 7 , 1993
Delbert Development Corporation
5460 Yonge Street, Suite 212
North York, Ontario
M2N 6K7
Fax: 1-416-886-6073
ATTENTION: 848601 Ontario Ltd. and 829633 Ontario Ltd.
Mr. N. S. Nourmansouri
Dear Sir:
RE: TRULLS DELBERT SUBDIVISION, PHASES 1 AND 2
PLAN 40M-1684 AND 40M-1685
Due to a lack of progress on the above-noted subdivision, we are
directing you to ensure all appropriate outstanding works are
completed to the satisfaction of the Town of Newcastle immediately.
Despite our meeting of May 25, 1993 wherein you advised that your _
financial status would be resolved by June 2, we did not receive
correspondence from your bank until June 4 . Unfortunately, the
contents of their letter does not sufficiently commit to the
resolution of immediately completing the works .
As such, to protect the interests of residents within the
subdivision, we are proceeding with a report to Council in
accordance with section 5 . 17 of the Subdivision Agreement.
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ATTACB�ENT NO. 3
VD-26-83
. . .2
CORPORATION OF THE TOWN OF NEWCASTLE �E���«o�MT„
4C TEMPERANCE STREET • BOWMANVILLE ONTARIO • L1C 3A6 • (416) 623-3379 FAX 623-4169
� t
. . .2
Should you wish to avert this action, we would suggest that you
immediately:
1. Resolve the status of your engineer; and
2 . Initiate completion of appropriate surface works and fencing.
Yours truly,
Norman A. Clark, C.E .T.
Construction Supervisor
NAC/ce
pc: A.S . Cannella, Manager of Engineering
K.J. Dwyer, G.M. Sernas & Assoc.
R.W. Lawrence, Royal Bank of Canada
T. Ching, Delbert Development Corporation
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► � 42
GARVEY, FERRISS
Barristers and Solicitors Y.
P.O. Box 56
Royal Bank Plaza
Suite 3170, South Tower
Toronto,Ontfa'io
MSr 212
June 11 , 1993 Telephone (4.16) 865-0222
Telecopicr (416) 865-0410
BY FAX AND MAIL (416) 865-1966
Town of Newcastle
40 Temperance Street
Bowmanville , Ontario
L1C 3A6
Attention: Mr. A. S. Cannella
Manager of Engineering
I
Dear Sirs :
Re : Royal Bank of Canada and
648601 ONTARTO INC.
We are solicitors for Royal Bank of Canada and have been
retained to act on their behalf in connection with the above
Corporation . We refer to your letter of June 7, 1993 ,
addressed to Delbert Development Corporation, a copy of which
was sent to Mr. Bob Lawrence of the Bank.
We met with our client today in this matter and wi:�h to assure
you that steps will be taken forthwith to ensure the completion
of works secured by the Bank' s letter of credit.
In view of the above we would ask that you defer any call under
the Bank' s letter of credit so as to avoid further
complications .
Please give the writer a Gall at any time if you w:.sh further
assurances regarding the actions that we are and will be
raking.
Yours truly,
/GARVEY F RRISS
Av i s ATTACHMENT NO. 4
WD-26-93
cc: Mr . Rolf S. Dawson
Manager, Head Office Special Loans Group
cc: Mr. R. W. Lawrence
Senior Account Manager , Real Estate
'> 4 .
Page 42
5.15 .Completion 71me for Construction of Works
Within t-vo (2)years of the date of the issuance of an Authorization to Commence
Works, the Owner shall complete the construction and installation of all of the Works
authorized in such Authorization to Commence Works with the exception of the curbs,
sidewalks, final/coat of asphalt, final lot grading, driveway approaches, sodding and tree
planting which may be completed later if done so in accordance with the provisions of the
Schedule of Works.
5.16 Minor Additional Work
Until the conclusion of the Maintenance Guarantee Period referable thereto, if in
the opinion of the Director, any minor or incidental additional work is required to provide
for the adequate operation and functioning of any of the Works, the Owner, at its cost,
shall construct and install such additional facilities and perform such additional work as the
Director may request from time to time by written notice given to the Owner.
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
�I 4 4 ATTACHMENT N0. 5
WD-26-93
Page 43
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 dais 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 17o) percent of the contractor's
charges�o 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.
(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 Owner 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 Entry 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
J241
July 5, 1993
Delbert Development Corporation
848601 Ontario Ltd. and 829633 Ontario Ltd.
5460 Yonge Street, Suite 212,
North York, Ontario
M2N 6K7
Dear Sirs:
RE: TRULLS DELBERT SUBDIVISION, PLANS 40M-1674 AND 40M-1675
TOWN OF NEWCASTLE OUR FILE: D.03.30.006
--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
848601 Ontario Ltd. and 829633 Ontario Ltd. , 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;
6. Completing channelization works; and
7. Completing stormwater management works.
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 NO. 6
WD-26-93
x ' 46
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
848601 Ontario Ltd.
30 Wertheim Cres. , Suite 9
Richmond Hill, Ontario
L4B 1B9
471