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HomeMy WebLinkAboutWD-26-93 THE CO A, THE MUNICIPALITY OF CLARINGTON XWX"(XlX)axX0GaXKK REPORT Meeting: GENERAL PURPOSE AND ADMINISTRATION COMMITTEE File # "J 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 i 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, i 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 i letters of credit it appears that the Town will have security I 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 i 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 .? f 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 LlE 2V9 i i i -T TRULLS'/DBLBBRT SUBDIVISION 40M— 1684 GEORGE REYNOLDS CECIL FOUND CRESCENT DRIVE w f- �, o � 0 0 i- :::D 0 0 JDI�,VONDALEL CECIL FOUND CRESCENT STREET 40M- , 685 - S JE T 0 rQ NASH ROAD IGHWAY N0. _ o 0 aaa D ° CO U T C C:\ATTACHS\SURD\40M1684 1 [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 I 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 I '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 I I ATTACHMENT N0. 2 WD-26-93 i I I 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. I i i 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 I I ► � 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