Loading...
HomeMy WebLinkAboutEGD-004-20Staff Report If this information is required in an alternate accessible format, please contact the Accessibility Coordinator at 905-623-3379 ext. 2131. Report To: General Government Committee Date of Meeting: March 9, 2020 Report Number: EGD-004-20 Submitted By: Ron Albright, Acting Director of Engineering Services Reviewed By: Andrew C. Allison, CAO Resolution#: GG-165-20, C-131-20 File Number: R.40.14 By-law Number: Report Subject: Servicing of Industrial Lands in South Courtice - Courtice Court Update Recommendations: 1.That Report EGD-004-20 be received; 2.That Council approve the use of an additional $130,000 (including net HST) from the Strategic Capital Reserve Fund to pay for the local servicing costs of the two additional properties that declared they are unable or unwilling to participate in the servicing costs at this time (revised total amount of $710,000 (incl. net HST)); 3.The Mayor and Clerk be authorized to execute the agreement on the Municipality's behalf; 4.That staff report back on the award of the tendered work pending execution of the agreement between the Municipality of Clarington and the participating landowners of Courtice Court and Progress Drive; and 5.That all interested parties listed in Report EGD-004-20 and any delegations be advised of Council’s decision. Municipality of Clarington Page 2 Report EGD-004-20 1.Background 1.1 As an update and follow-up to Report EGD-009-19, and resolution #GG-243-19 which states: Staff have had the design work completed and tendered. While reviewing the tendered amount and associated cost sharing arrangement totals with the original participating landowners, two landowners decided they were not able to participate. 1.2 The total project costs associated with these two additional properties are $150,000 (incl. net HST), bringing the total required amount to fund the non-participating landowners share to $710,000 (incl. net HST). The tender came in slightly lower than was estimated providing a $20,000 (incl. net HST) reduction for the original non- participating lots resulting in a net additional amount of $130,000 (incl. net HST). 1.3 In order to ensure that the terms of the use of this funding are met, namely that the funds be repaid, staff have requested that the Region of Durham seek approval for including an Endeavour to Collect clause in the Regional Servicing Agreement with the Municipality of Clarington for the lots that are not participating. The amount of this Endeavour to Collect is estimated to be $710,000 (incl. net HST) but will be updated to reflect the final actual total project costs for the works. 1.4 For the non-participating lots that are not yet developed, there is an additional opportunity to ensure collection of these funds. The Municipality, when considering a site plan application from these lands, will make it a condition of the site plan agreement that servicing costs for water and sanitary sewer associated with that lot are repaid to Report Overview This report outlines the basis for recommending the use of additional funding from the Strategic Capital Reserve Fund to assist the existing landowners and businesses with sanitary sewer and watermain servicing on Courtice Court. Additional funding has been requested as two properties have withdrawn their commitment to participate. This economic development initiative is very important to incenting new development in the area as well as allowing existing businesses to expand. Municipality of Clarington Page 3 Report EGD-004-20 the Municipality in full plus interest at the Prime Business Lending Rate as reported by the Bank of Canada at and from the date of Substantial Completion of the works to the date of site plan approval. 1.5 Clarington staff have been meeting with the participating landowners over the last 10 months through the completion of the design, approval by the Region of Durham, tendering and acquiring the necessary Ministry of the Environment, Conservation and Parks certificate of approval (C of A). During this time, we have developed a cost sharing agreement with the participating landowners (Attachment 1). Staff are seeking approval in principle of this agreement from Council, and authorization that the Mayor and the Clerk be able to execute the agreement on behalf of the Municipality of Clarington. This request is being moved as part of this report in order to expedite execution of the agreement, and in turn, preparation of the report to Council for approval to award the servicing contract to the successful bidder. 2. Next Steps 2.1 Once the agreement is signed by all parties, staff will report back to Council seeking approval of the award of the contract for the Courtice Court works. 3. Concurrence This report has been reviewed by the Director of Finance who concurs with the recommendations. 4. Conclusion In order to support economic development and the ability for existing businesses to grow, it is respectfully recommended that the Strategic Capital Reserve Fund be used to fund the cost share of the additional non-participating lands to provide local sanitary and water servicing to Courtice Court. All funding will be recovered as per the requirements of the Strategic Capital Reserve Fund. Staff Contact: Ron Albright, Assistant Director of Engineering Services, x2302 or RAlbright@clarington.net Attachments: Attachment 1 – Courtice Court Servicing Cost Sharing Agreement Not Applicable List of Interested Parties available from Department. This COST SHARING AGREEMENT made this XX day of XX, 2020 B E T W E E N: THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON (the “Municipality”) - and - IGRACKI INVESTMENTS INCORPORATED, 9417818 CANADA INC., 2537613 ONTARIO LIMITED, MARIA GRACIETE OLIVEIRA, JOSE OLIVEIRA, DAVY HOLDINGS INC., 1073933 ONTARIO LIMITED, AWC REALTY LTD., and 765345 ONTARIO LIMITED (collectively the “Participating Owners”) WHEREAS the Participating Owners are the registered owners of the Participating Lands depicted on Schedule “A”; AND WHEREAS the Municipality intends to undertake the Works; AND WHEREAS each Participating Owner is prepared to fund their Proportional Share of the Costs; THE PARTIES agree as follows: DEFINITIONS AND INTERPRETATION 1. In this Agreement, including in the Recitals and Definitions: “Agreement” means this Agreement; “Costs” means the total actual costs to complete the sanitary sewer and watermain components of the Works, including the costs of materials, labour, design, engineering, professional services, inspections, contract and administration, contingencies, maintenance, and all such other items as reasonably required; Attachment 1 to Report EGD-004-20 “Project Area” means the area of Courtice Court and McKnight Road shown on Schedule “A”; “Proportional Share” means the fraction of the Costs attributable to a specific Participating Owner in accordance with the tables included at Schedule “C” of this Agreement; “Region” means the Regional Municipality of Durham; and “Works” means the works described in the Courtice Court Watermain, Sanitary Sewer, and Road Reconstruction plans attached as Schedule “B” to this Agreement. 2.References in this Agreement to legislation, including by-laws, shall be deemed to include the words “as amended, revised, re-enacted and/or consolidated from time to time and any successor legislation thereto. GENERAL MATTERS 3.The statements contained in the Recitals, which are to be read as an integral part of this Agreement, are true and correct. Schedules, section, subsection or clause numbers referred to herein shall mean schedules, section or subsection or clause numbers contained in this Agreement unless otherwise specified. WORKS 4.The Municipality acknowledges and agrees it shall tender and construct the Works and shall enter into such arrangements as are required by the Region to activate the sanitary sewer and watermain components of the Works, and to maintain those components until such time as they are assumed by the Region. CONTRIBUTION BY THE PARTICIPATING OWNERS 5.Each Participating Owner individually acknowledges and agrees to pay the Municipality their Proportional Share of the Costs. 6.Prior to the issuance of a purchase order by the Municipality for the commencement of the Works, each Participating Owner agrees to advance to the Municipality their Proportional Share of the estimate of the Costs for the sanitary sewer and watermain components of the Works, as reflected in Schedule “C”. 7.If the Costs exceed the estimates reflected in Schedule “C”, the Participating Owners shall advance their Proportional Share of the revised Costs within 30 days of receipt of an invoice from the Municipality showing the revised amounts. 8.If upon completion of the Works, the Costs are less than the estimates reflected in Schedule “C”, the difference shall be refunded to the Participating owners according to their Proportional Share. 9.The Municipality agrees that it will use its best efforts to manage and mitigate the Costs. 10. The Participating Owners acknowledge and agree that the Municipality is only responsible for the construction or installation of the Works and this Agreement does not contemplate any additional servicing improvements that may be required by the Participating Owners. 11. The Participating Owners acknowledge and agree that they are solely responsible for any fees or charges that may be assessed by the Region as a condition of service connection with respect to the Works, and they are solely responsible for any and all sanitary sewer or water billing in relation to their lands. PERMISSION TO ENTER 12. The Participating Owners each agree to permit the Municipality, its agents or contractors, to enter upon and have access to their lands as necessary for the purpose of construction, inspection, or maintenance of the Works. DEFAULT 13. The Participating Owners acknowledge and agree that until every Participating Owner’s Proportional Share has been advanced to the Municipality, no Participating Owner shall be permitted to connect to the Works. DISPUTE RESOLUTION 14. The Parties shall use their best efforts to settle any disputes arising out of or in connection with this Agreement or its interpretation. If a Participating Owner shall choose to challenge any determination made by the Municipality or, if any claim or dispute shall arise with respect to any of the provisions herein, the Municipality may require that such claim, matter, or dispute be submitted to and settled by a single arbitrator pursuant to the provisions of the Arbitration Act, 1991, whose decision shall be conclusive and binding upon all the Parties, and judgement shall be rendered thereon, provided, however, that the Participating Owners shall continue their performance of the terms and conditions of this Agreement before and during any such arbitration proceeding, and provided further that all costs, charges, and expenses arising therefrom and in connection therewith shall be borne by the Party against whom the arbitrator shall decide to rule, or by every Party to the dispute in the case of a mixed result. WAIVER 15. The failure of the Municipality at any time to require performance by any Participating Owner of any obligation under this Agreement shall in no way affect its right thereafter to enforce such obligation, nor shall the waiver by the Municipality of the performance of any obligation hereunder be taken or be held to be a waiver of the performance of the same or any other obligation hereunder at any later time. The Municipality shall specifically retain its rights at law to enforce this Agreement. ADJUSTMENTS TO SCHEDULES 16. Notwithstanding anything contained in this Agreement to the contrary, it is understood, acknowledged and agreed by the Participating Owners that the Schedules appended hereto that detail the Works and the Costs are approximations and they have been inserted only for the purpose of illustrating the methodology to be employed by the Municipality in determining each Proportional Share. The information contained in the Schedules is intended to be updated when more precise information becomes available. ADMINISTRATION 17. Any notice, demand, acceptance or request required to be given hereunder in writing, shall be deemed to be given if either personally delivered or mailed by E- mail, registered mail, postage prepaid, at any time other than during a general discontinuance of postal services due to a strike, lockout or otherwise, and addressed to the Municipality or the Participating Owners at the addresses set out below: The Corporation of the Municipality of Clarington 40 Temperance Street Bowmanville, Ontario L1C 3A6 Attn: Director of Planning Services Tel: 905-623-3379 Fax: 905-623-6020 Igracki Investments Incorporated 1 Progress St. Courtice, ON L1E 2T3 2537613 Ontario Limited 8611 Weston Rd. Suite 21A Vaughan, ON L4L 9P1 Maria Graciete Oliveira 21 Courtice Ct. Courtice, ON L1E 2T4 Jose Oliveira 21 Courtice Ct. Courtice, ON L1E 2T4 Davy Holdings Inc. 1307 Wharf Rd. Pickering, ON L1W 1A5 107933 Ontario Limited 701 Rossland Rd. E. Suite 370 Whitby, ON L1N 9K3 AWC Realty Ltd. 60 Courtice Ct. Courtice, ON L1E 2T3 765345 Ontario Limited 93 Sunset Trail North York, ON M9M 1J7 or such change of address as the applicable Party has by written notification forwarded to the Municipality and the other Parties. Any notice shall be deemed to have been given to and received by the Party to which it is addressed on the date it is personally delivered, or on the fifth (5th) business day after the mailing thereof, whichever is earlier. 18. This Agreement is binding upon and shall be enforceable by and against the Parties, their heirs,executors, administrators, successors and assigns. 19. If any provision of this Agreement is determined by a Court of competent jurisdiction to be illegal or beyond the power, jurisdiction, or capacity of any party bound hereby, such provision shall be severed from this Agreement and the remainder of this Agreement shall continue in full force and effect and in such case the parties shall negotiate in good faith to amend this Agreement in order to implement the intentions as set out herein. It is agreed and acknowledged by the parties that each is satisfied as to the jurisdiction of each party to enter into this Agreement. The parties agree that they shall not question the jurisdiction of any party to enter into this Agreement nor question the legality of any portion hereof, nor question the legality of any obligation created hereunder and the parties, their successors and assigns are and shall be estopped from contending otherwise in any proceeding before a Court of competent jurisdiction or any administrative tribunal. 20. This Agreement shall be interpreted under and is governed by the laws of the Province of Ontario. 21. The Parties shall execute such further documents and cause the doing of such acts and cause the execution of such further documents as are within their power as the Parties may reasonably request be done or executed, in order to give full effect to the provisions of this Agreement. 22. Time shall be of the essence of this Agreement and each of its provisions. 23. This Agreement may be executed in counterparts, each of which when executed and delivered shall be deemed to be an original, and such counterparts together shall constitute one and the same Agreement. For the purposes of this Agreement, the delivery of a facsimile or e-mail copy of the shall be deemed to be a valid execution and delivery of this Agreement, but the party delivering a facsimile or e- mail copy shall deliver an original copy of this Agreement as soon as possible after delivering the facsimile or e-mail copy. 24. Any reference in this Agreement to a person, entity or object in the singular shall be deemed to include the plural; some apostrophes to indicate the possessive have been omitted. LIST OF SCHEDULES 25. The following schedules are attached hereto and form part of this Agreement: SCHEDULE “A” Project Area Map SCHEDULE “B” Courtice Court Watermain, Sanitary Sewer, and Road Reconstruction Plans SCHEDULE “C” Costs The Municipality has executed this Agreement by the signature of its duly authorized signing officer on this ____ day of ____________________, 2020. THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON Per: ______________________ Name: Director of Planning Services I have authority to bind the municipal corporation Authorized by By-law No.2018-046 Igracki Investments Incorporated has executed this Agreement by the signature(s) of its duly authorized signing officers on this ____ day of ____________________, 2020. IGRACKI INVESTMENTS INCORPORATED Per: _____________________ Name: Per: _____________________ Name: I/we have authority to bind the corporation 9417818 Canada Inc. has executed this Agreement by the signature(s) of its duly authorized signing officers on this ____ day of ____________________, 2020. 9417818 CANADA INC. Per: _____________________ Name: Per: _____________________ Name: I/we have authority to bind the corporation 2537613 Ontario Limited has executed this Agreement by the signature(s) of its duly authorized signing officers on this ____ day of ____________________, 2020. 2537613 ONTARIO LIMITED Per: _____________________ Name: Per: _____________________ Name: I/we have authority to bind the corporation Maria Graciete Oliveira has executed this Agreement on this ____ day of ____________________, 2020. __________________________ MARIA GRACIETE OLIVEIRA Jose Oliveira has executed this Agreement on this ____ day of ____________________, 2020. __________________________ JOSE OLIVEIRA Davy Holdings Inc. has executed this Agreement by the signature(s) of its duly authorized signing officers on this ____ day of ____________________, 2020. DAVY HOLDINGS INC. Per: _____________________ Name: Per: _____________________ Name: I/we have authority to bind the corporation 1073933 Ontario Limited has executed this Agreement by the signature(s) of its duly authorized signing officers on this ____ day of ____________________, 2020. 1073933 ONTARIO LIMITED Per: _____________________ Name: Per: _____________________ Name: I/we have authority to bind the corporation AWC Realty Ltd. has executed this Agreement by the signature(s) of its duly authorized signing officers on this ____ day of ____________________, 2020. AWC REALTY LTD. Per: _____________________ Name: Per: _____________________ Name: I/we have authority to bind the corporation 765345 Ontario Limited has executed this Agreement by the signature(s) of its duly authorized signing officers on this ____ day of ____________________, 2020. 765345 ONTARIO LIMITED Per: _____________________ Name: Per: _____________________ Name: I/we have authority to bind the corporation SCHEDULE “A” – Project Area Map SCHEDULE “B” – Work Plans SEE ATTACHED (NOTE DESIGN DRAWINGS NOT PROVIDED AS PART OF COUNCIL REPORT BUT WILL FORM PART OF AGREEMENT) SCHEDULE “C” – Costs