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HomeMy WebLinkAboutWD-22-01 '\I ~ . ~ THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON Meeting: REPORT GENERAL PURPOSE AND ADMINISTRATION COMMITTEE File #J)lf t(&/I1-jfr; MAY 7, 2001 Res. # 0111-:303-0/ Date: Report No.: WD-22-01 File No.: D.06.25.001 By-Law # Subject: WESTLAKE SUBDIVISION, SOLINA PLAN 40M-1897 COMPLETION OF ALL OUTSTANDING WORKS Recommendations: It is respectfully recommended that the General Purpose and Administration Committee recommend to Council the following: I. THAT Report WD-22-01 be received; 2. THAT the Director of Public Works be authorized to issue a 'Final Notification Letter' to 821010 Ontario Limited, and their surety (The Bank of Nova Scotia), stating a completion deadline ofJune 30, 2001, for all outstanding works; 3. THAT upon expiration of the aforementioned deadline, the developer's Letter of Credit be drawn down, in the full amount; 4. THAT the Director be authorized to expend said monies pursuant to all obligations incurred or to be incurred by the Corporation of the Municipality of Clarington in accordance with the Subdivision Agreement between 821010 Ontario Limited and the Corporation of the Municipality ofClarington; and 5. THAT 821010 Ontario Limited and The Bank of Nova Scotia be advised of Council's decision and be provided with a copy of Report WD-22-01. . 671 REPORT NO.: WD-22-01 PAGE 2 REPORT 1.0 ATTACHMENTS No.1: Key Map No.2: Copy of Previous Correspondence to Developer No.3: Copy of Pertinent Excerpts from the Subdivision Agreement No.4: Copy of 'Final Notification Letter' to Developer 2.0 BACKGROUND 2.1 The Corporation of the Municipality ofClarington entered into a Subdivision Agreement on May 7, 1997, with 821010 Ontario Limited to develop a parcel of land by plan of subdivision, located in Solina and described as Plan 40M-1897 (Attachment No.1). The agreement required the developer to construct all roadworks including hot-mix paving, granular shouldering, topsoiled and sodded ditches, and street lighting, as well as rear-yard drainage swales and a stonnwater management facility, hereinafter referred to as the 'Works'. 2.2 The developer partially completed the "Initial Works" in 1997. Since then, some lots have been built on but the "Final Works", as well as specific road repairs, remain unfinished. 2.3 The outstanding Works include, but are not necessarily limited to: base asphalt repairs; surface asphalt paving; granular shouldering repair and completion, roadway ditch repairs, rear-yard swale completion, and stonnwater management pond completion. 2.4 Staff attempted to have these Works completed by the developer (Attachment No.2). Despite written commitments from the developer and their consulting engineer, the Works remain incomplete. 3.0 REVIEW AND COMMENT 3.1 Staff estimates the costs of completing all outstanding Works (including legal costs, contingencies, and engineering and management fees) in accordance with the provisions of Section 5.17 of the Subdivision Agreement, to be approximately $390,000.00. 612 REPORT NO.: WD-22-01 PAGE 3 3.2 There is presently a Letter of Credit from the developer, valued at $401,444.73, in favour of the Corporation of the Municipality ofClarington (SI0009/56406 Bank of Nova Scotia). 3.3 Under Section 5.17 of the Subdivision Agreement (Attachment No.3), 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 (Attachment No.4). 4.0 CONCLUSION 4.1 In the event the developer does not complete all outstanding requirements by June 30, 2001, it is recommended that the securities be drawn in full and that the Department of Public Works be authorized to complete all Works in accordance with the Subdivision Agreement, at the full expense of the developer. Respectfully submitted, Reviewed by, ~u~ Stephen A. Vokes, P. Eng., Director of Public Works dl'-~.~ Franklin Wu, Chief Administrative Officer AHC*SA V*ce 01/05/01 Attachments Pc: 821010 Ontario Limited 706 Athol Street, Unit 1 Whitby, ON UN 4A2 The Bank of Nova Scotia Calg~ International Trade Services 7002" Street S.W., Suite 315 Calgary, AB T2P 2Wl 673 I T~-- I I J Concession Rd 7 I" " <'> ~ m c o ';;, ~ , ! '~ '-. , ! ! ! ; ~\ I' 'I \ t- . ; ~' t.) ... ~ 1~~"1 " I [--~ INi SLAkE SbSDIVIS ON 11\, 40M-1897 ~.. ~ Linlm., im~~ I OJ ~r--- I Ci5 g' \:--_____/ <l) U _ en Ctl +:; :2 Ul OJ t.) OJ // I I t r .. .~ (; III j SUSJEcr SITE I--l '[: '1t \ \ KEY MAP .... '" ~ m c o ';;, Q) '" j --I ~ '" w~~ 8 DRAWN BY: J.RM._~-'] DATE: APRIL 12, 2001 REPORT WD-22-01 ATTACHMENT NO.1 674 . . l:>.O\c.~5.001 _rJ/a;r:'gl,;;n ONTARIO May 19, 1999 Greenrock Engineering 221 Kendalwood Road Whitby, ON LlN2G1 ATTENTION: Mr. Nick Colucci, P.Eng. Dear Sir: RE: WESTLAKE SUBDIVISION PLAN 40M-1897 COMPLETION OF WORKS Wll,p,!-ve reviewed your correspondence dated March 31, 1999. Section 5.15 of the development agreement (copy attached) requires the completion of all Works within a two (2) year period following Authorization to Commence Works. These authorizations were issued dated August 16, 1996 for the Initial Warks and Street L~~ing Systllm, aIJ.dOctober 3, 1996 for the Stormwater Management System. Per Section 5.17 ofth.e development agreement, (copy attached) it is the Municipality's position that unreasonable delay has occurred in the completion ofthe works. As such, yeuare hereby notified that all rem;lining works, including construction of Odium Street, drainage swales, street lighting, and stormwater management works, are to be ~ediately completed. O~er maint~ce.1i\Iorks sqch as the repair .of shoulders and ditches _that have eroded, shouldersithlltarenarrpw,and.ditches that are not properly draining, also require immediate rectificatiol!: c:.ontact Rodney Rosario, of this office, regarding the status of llIl.Pther reqmren:lents rellltingJOthe issuaIJ.ce ofCompletion Certificates for this project. W~:r.equire a writtlll). schedule for our approval,py May 28, 1999. ", The .releaseofbqilding.permjts, as WI;1!l as the processing of letter of credit.reduc.tions for this ,pwject, C<u,1l).ot be entertained until these issues have been resolved. F~ingto ()omplywith these requirements will result in action by this office through provisions il;l the development agreement. 675 ....CORPORATION. OF. THE ,""UtlICIPALITV OF CLARINGTON ATTACHMENT N~ . 40 Te'M'"p_ERlllNC E STR E-E'T o-B-OWMANYlLLE -ONT AR 10 .( t C3AS . (905) 623-3379.. FAX aREFailT NO.: Wll- - 1 c D 1"111 Mr. N. Colucci , Yours truly, ~~~~ Adrian Coolen, C.E.T Construction Coordinator ARC! attachment -2- pc: A.S. Cannella, Manager of Engineering Larry Taylor, Manager, Development Review Branch 676 '" May 19, 1999 . \).OIo.~5.00\ - _e/a;r;'g'i;;n ONTARIO January 11, 2000 821010 Ontario Limited 706 Athol Street, Unit I Whitby, ON LlN 4A2 ATTENTION: Mr. Bruce Rondeau RE: WESTLAKE SUBDIVISION, PLAN 40M-1897 COMPLETION OF WORKS, OUR FILE: 0.06.25.001 We note that there is a lack of progress on the required works as directed in our correspondence of May 19, 1999, (copy attached). You are hereby notified that you have until June 15,2000, to complete all outstanding works, which include but are not limited to: I. Rectification of all road ditches, shouldering, and failing road pavement. 2. Completion of all drainage swales. 3. Completion of all stormwater management works. All works are to be completed to the satisfaction of the Municipality of Clarington and require the full-time supervision of your consulting engineer. Should we determine that there is default at the deadline date, a report will immediately be presented to Municipal Council recommending the Municipality draw on securities held, in order to complete all outstanding works, as provided for in the Subdivision Agreement. We look forward to reviewing a written schedule provided by you. Yours truly, ~-ce Adrian Coolen, C.E.T. Construction Coordinator ARC/ attachment pc: Mr. S.A.Vokes, Director of Public Works Mr. A.S. Cannella, Manager of Engineering 67 7! Mr. N. Colucci, Greenrock Engineering CORPORATION OF THE MUNICIPALITY OF CLARINGTON 40 TEMPERANCE STREET. BOWMANYILlE .ONTARIO -ltC 3A6. /9051623.3379. FAX 823-4'Sg @ qc::..c:u;~......" t I I I I I I I I I I . . . I . . . . . . . . . , ' 5D 45 Subdivisipn Agreement . . '..,; ., '. . , with,thi,sparagraphS.12by'requiring the Owner's centractor and sub-contracters whe are constructing aIld installing the Werks er cempenents thereaf in questien and are referenced in theerder tocemplywith it ferthwith. A step werk erder may be given te the Owner by giving to its Owner's Engineer by personal service on the Owner's Engineer or any representative ef the Ov;ner's Engineer, by prepaid first class pest addressed te the Owner's Engineer, ar by telefax to the Owner's Engineer at the address and telefax number referred to in paragraph 5.3(1) er 5.3(2), whichever is applicable. 5.13 Construction in Accordance with Em!:ineerim~' Drawin2s (1) The Werks shall be censtructed and installed in accerdance with the Engineering Drawings as approved by the Directer. Ne deviatien frem the Engineering Drawings is permitted unless such deviatien is autherized in writing by the Directer befere it is undertaken. All censtructien and installatien ef the Werks, shall be undertaken and carried eut by the Owner erby the Ov;ner's centractor, as the case may be, in accordance with the regulatiens fer censtructien set aut in Schedule "L". (2) The Ov;ner shall keep the Municipality read surfaces and ditches clean ef dirt, mud and refuse until a Certificate ef Acceptance ef all Werks centemplated in this Agreement has been issued as previded fer by this Agreement If the Ov;ner has net perfermed its ebligatiens under this paragraph 5.13(2), the Municipality may de se and deduct the reasenable cest thereef frem the Perfermance Guarantee. The Owner shall restere the Perfermance Guarantee te the ameunt etherwise required by this Agreement, ferthwith after the Directer gives the Ov;ner written netice ef the amount of the deductien in questien. 5.14 Senuence ~f Construction of Works Fellewing the issuance ef an Autherizatien te Commence Werks, the Ov;ner shall proceed in geed faith te censtruct and install all ef the Werks referred te in the Authorization to Commence Works continuously and in accordance with the timing and sequence therefor set out in the Schedule of Works. 5.15 Comnletion Time for Construction of Works Within twe (2) years ef the date ef the issuance ef an Autherizatien te Cemmence Werks, the Ov;ner shall cemplete the censtructien and installatien ef all ef the Werks autherized in such Autherizatien te Cemmence Werks with the exceptien ef the curbs, 678 ATTACHMENT NO.: 3 REPORT NO.: WD-22-01 I t I I I I I I I I . . . ... 5). Subdivision Agreement 46 sidewalks, final coat of asphalt, finaJ 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 Additional Work Until the conclusion of the Maintenance Guarantee Period referable thereto, if in the opinion of the Director, any incidental additional work is required to provide for the adequate operation, functioning and maintenance 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 IncomDlete Dr Faulty Works aDd Liens (1) Without derogating from the other provisions of this Agreement, if, in the opinion of the Director, (1) 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 or they will he completed within the time specified for such completion in the Schedule of Works, or (2) the Works or any component(s) thereof are being improperly constructed or instalJed, or (3) the Owner neglects or abandons the said Works or any part of them before completion, or (4) unreasonable delay occurs in the construction or installation of the Works, or (5) 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 (6) the Owner neglects or refuses to reconstruct or reinstall any of the Works or component( s) thereof which may be rejected by the Director as being defective, deficient or unsuitable, or (7) the Owner otherwise defaults in performance of this Agreement, the Director may give the Owner notice in writing of his opinion respecting any such matter. Following the later to occur of the expiry of ten (10) business days, excluding Saturdays and Sundays and statutory holidays following the giving of such notice plus the expiry of any additional period as may be specified in the notice given to the Owner by the Director, the Municipality, at the cost and expense of the Owner, may engage a contractor, supplier of services or materials and such workmen, and purchase such services, supplies and/or services as in the opinion of the Director are required for the completion of the construction and installation of the Works and all components thereof and the performance of all covenants of the Owner relating to the Works as provided by this Agreement, In cases of an emergency or urgency, or in order to preserve the integrity of the Works or any component thereof as determined by the Director in his absolute discretion, any deficiency(s) or tiefect(s) in the Works, and 679 , . . . ! . . . ., . . . d . . .' Q . . . Q . . . 5~ Subdivision Agreement 47 any failure to complete the Works and all components thereof in accordance with this Agreement may be corrected, remedied or completed by the Municipality its contractors, suppliers and employees at the cost of the Owner without prior notice to the Owner, provided that forthwith after the Municipality so acts, the Director shall give written notice to the Owner of his determination as aforesaid, descnbing the action taken by the Director, and the cost of correcting or remedying the deficiency or default in question or the cost of completing the Works and the components thereof, as the case may be. For the purposes of this paragraph 5.17(1) the cost of any work which the Municipality undertakes under this paragraph 5.17(1) shaIJ be determined by the Director in his absolute discretion. It is understood and agreed by the Parties that the costs for which the Owner is respollSlble under this paragraph 5.17(1) shall include a management fee payable to the Municipality either of thirty (30%) percent of the contractor's charges to the Municipality (including any charges for overhead and profit) or, if such work is undertaken by the Municipality, thirty (30%) percent of all costs incurred by the Municipality to correct or remedy the deficiencies or defect or to complete the Works and all components thereof ~ the case may be. The Owner shall pay the Municipality an amount equal to the cost of all Works and components thereof, and the cost of correcting or remedying all deficiencies and defects referred to in this paragraph 5.17(1) which have been incurred by the Municipality or are estimated in the Director's absolute discretion to be likely to be incurred by the Municipality forthwith after the Director gives the Owner written demand for payment of such cost. If the amount paid is based on the Director's estimate as aforesaid, forthwith after actual costs are known the Director shall give the Owner written notice thereof. If the actual costs are more than the estimated costs, the Owner shall forthwith pay the Municipality an amount equal to the difference between them. If the actual costs are less than the estimated costs, the Municipality shall forthwith refund the difference between them to the Owner. (2) In the event that (1) a claim for a lien in respect of the Works or any component thereof is registered against the title to any land vested or which should have been vested in the Municipality or is filed with the Municipality, or (2) the Municipality receives written notice of a claim of an alleged beneficiary of a statutory trust under the Construction Uen Act, such registration, filing or notice 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 or the claim as the case may be within ten (10) business days, excluding Saturdays, Sundays and statutory holidays, after the giving of such notice plus any further period of time as may be specified in the notice, then the Municipality in its absolute discretion may (1) pay the full amount of the claim and security for costs into a Court of competent jurisdiction in order to obtain an order vacating such claim for lien, (2) 680 I I I , I I I I I I . . ! . , ~ !J , ~ . 1 . . . 53 Subdivision Agreement 48 discharge the claim in full by paying the amount claimed or in pan by paying a portion thereof or (3) draw the full amount of the claim in cash from a letter of credit deposited with the Municipality as the security for the Performance Guarantee and hold the cash in a deposit account of the Municipality as the security for the Performance Guarantee in respect of the claim in question. The Municipality may draw on and appropriate the whole or any portion( s) of the Performance Guarantee and the Security for the Maintenance Guarantee for the purpose of making payment under this paragraph 5.17(2). The Owner shall indemnify the Municipality against the costs and expense incurred by the Municipality in making a payment pursuant to this paragraph 5.17(2) fonhwith after the Director gives the Owner written notice requiring him to do so. In the event that the Municipality draws on and appropriates any portion of the Performance Guarantee or the Security for the Maintenance Guarantee for "11Y of the aforesaid purposes, fonhwith 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 Acknowledeement Resuectine Emereencv ele. Renalrs The Owner acknowledges that if in cases of emergency or urgency or in order to protect the integrity of the Works or any component thereof, the Director acts to correc~ remedy or repair any deficiency(s) or defect(s) in the Works, neither an entry on the Lands or any portion of them nor any such action by the Director or any person authorized to undertake the same by the Director shall be deemed to be an acceptance of any of the Works by the Municipality, nor an assumption by the Municipality of any responsibility or liability in connection therewith, or a release by the Municipality of the Owner from any of its obligations under this Agreement 5.19 Damue to Enstine Services Fonhwith after written demand therefor is given by the Director to the Owner, the Owner sball pay to or to the direction of the Municipality, tbe cost of repairing any damage to any propeny or services of the Municipality, the Region, or any utility authority or company or (tbe "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 anyone (1) or more portions of the Lands, or the construction or installation of any of the 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, propeny or services in question. In addition, 681 _e/a;r;'lgl,;;n ONTARIO April 27, 2001 821010 Ontario Limited 706 Athol Street, Unit 1 Whitby, ON UN 4A2 ATTENTION: Mr. Bruce Rondeau Dear Sir: RE: WESTLAKE SUBDIVISION, SOLINA MUNICIPALITY OF CLARINGTON, PLAN 40M-1897 --FINAL NOTIFICATION LETTER-- This letter will serve as notice, as stipulated under Section 5.17 of the Subdivision Agreement between the Corporation of the Municipality of Clarington and 821010 Ontario Limited, that, in the opinion of the Director of Public Works, you have defaulted in performance under the conditions ofthe agreement. Due to a lack of progress on the above-noted subdivision, you are hereby notified that you have until June 30, 2001, to complete all outstanding works, which include but are not limited to: 1. Carrying out base asphalt repairs; 2. Carrying out shoulder and ditch repairs; 3. Completing rear-yard swales; 4. Completing stormwater management works; and 5. Completing surface asphalt; All works are to be completed to the satisfaction of the Municipality of Clarington and require the full time supervision of your consulting engineers, Greenrock Engineering. Public Works staff will review the status of these works with your consultant just prior to the above noted deadline. Any works not completed to our satisfaction will then be carried out by the Municipality, at your full expense, in accordance with the terms and conditions of the Subdivision Agreement. 682 ~ CORPORATION OF THE MUNICIPALITY OF CLARINGTON ATTACHMENTN . 40 TEMPERANCE STREET. BOWMANVllLE' ONTARIO. L1C 3A6. (905) 623~3379. FAX ~PORTNO.: WUc~ IPER WEBSITE www r:1Jnicipalily_claringto1 on ca -2- Yours truly, Stephen A. Vokes, P. Eng. Director of Public Works Pc: Marie Marano, Treasurer Pattie Barrie, Clerk A.S. Carmella, Manager of Engineering L. Taylor, Manager of Development Review, Plarming Bank of Nova Scotia 683