HomeMy WebLinkAboutLEG 02-16LEG 02-16
Subject: Pre-Servicing Agreements
February 8, 2016
Page 2
Financial Implications: There are no direct financial implications to this Report.
Discussion:
Subdivision works and services to be constructed by a landowner (such as roads,
stormwater services and sidewalks) are normally set out in a subdivision agreement.
The subdivision agreement contains a detailed description of all City works and
services, and includes all of the conditions imposed by Council upon the approval of the
plan of subdivision. The subdivision agreement also sets out the process for
submission, review and approval of the designs for all of the City works and services. In
some cases, however, the landowner wishes to commence construction of some of the
City works and services before the subdivision agreement has been finalized. A Pre-
Servicing Agreement between the City and the landowner is a useful means of
speeding up the progress of subdivision development while ensuring that City staff
retain all prudent and necessary authority to review, inspect and approve or disapprove
of proposed subdivision works.
It is important to note that a Pre-Servicing Agreement will be used only to permit City
works which (a) have already been authorized by Council through the draft plan
approval process, (b) are considered by the Director, Engineering & Public Works and
Director, City Development to be appropriate prior to finalization of the subdivision
agreement, and (c) have received all required regulatory approvals and permits.
Attachment 1 is a template for a City of Pickering Pre-Servicing Agreement. It is
intended to be customized to suit each particular subdivision development in which it is
used. The Pre-Servicing Agreement will contain a specific description of the pre-
servicing works authorized by the City. It will also contain all applicable design, review,
inspection and other requirements, so that City staff will be able to monitor and control
pre-servicing construction work in the same manner as occurs pursuant to the City's
subdivision agreements. Additionally, the Pre-Servicing Agreement will require
appropriate security to be posted by landowners to secure all pre-servicing works.
Use of the Pre-Servicing Agreement will make the development process more
expeditious while still enabling City staff to control the development process in the
public interest. It is anticipated that the Pre-Servicing Agreement will be of assistance in
the Seaton Development Area, where intensive development activity is anticipated in
the near future.
Attachments:
1. Draft Form Pre-Servicing Agreement
CORP0227-07/01 revised
ATIACHMENT# I TOREPORT# /-E&_ Dd -/{p
This Pre-Servicing Agreement made as of the XX day of January, 2016. / .of. /3
Between
The Corporation of the City of Pickering
(hereinafter the "City")
and
XX
(hereinafter the "Owner")
Whereas the Owner is the owner of certain lands and premises more particularly
described as (the "Lands")
And Whereas Conditions of Draft Plan Approval of a subdivision respecting the Lands
were approved by the City on XX, 201X, in relation to File No. SP-XXX {hereinafter the
"Draft Plan Conditions");
And Whereas the Draft Plan Conditions require the Owner to enter into a Subdivision
Agreement with the City providing for the Owner's fulfillment of the Draft Plan
Conditions (hereinafter the "Subdivision Agreement");
And Whereas the Owner has requested the City's approval to install certain services on
the Lands in accordance with the plans set out on Schedule "A" attached hereto
(hereinafter the "Pre-Servicing Works") prior to entering into the Subdivision Agreement;
And Whereas the Owner and the City have agreed to be bound by the terms and
conditions contained in this Agreement; ·
Now therefore this Agreement witnesseth that in condition of the covenants and
premises contained herein and other good and valuable consideration, the parties
hereto covenant and agree with each other as follows:
1. Construction/Installation of Pre-Servicing Works
The Owner shall obtain all required approvals and shall construct or install to City
standards and shall provide to the City, complete in every detail, the following City
works and services (the "Pre-Servicing Works") as shown on engineering plans
submitted by the Owner's Consulti,ng Engineer to the City and approved by the Director,
Engineering & Public Works in accordance with the City's specifications for such Pre-
Servicing Works:
[describe the works in detail]
2. Term
This Agreement shall remain in force and effect until such time as all of the obligations
contained herein have been incorporated into or expressly superseded by the
Subdivision Agreement.
3. Owner's General Undertaking
The Owner shall complete in a good workmanlike manner for the City, all the Pre-
Servicing Works to the satisfaction of the City, and shall complete, perform or make
payment for such other matters as may be provided for herein.
4. Owner's Expense
ATlACHMENT# I TO REPORT#
c::2 .of. I 3
Every provision of this Agreement by which the Owner is obligated in any way ·
shall be deemed to include the words "at the expense of the Owner and at no
expense to the City" unless the context requires otherwise.
5. Right to Enter
(1) The City may, by it officers, employees or agents, enter on the Lands or
any part of the Lands, as well as any building(s) erected on the Lands to
ensure that any Pre-Servicing Works, services or facilities required to be
provided, constructed, installed or maintained by the Owner, comply with
this Agreement.
(2) If it is necessary for the Owner to enter onto abutting/adjacent lands to
complete any portion of the Pre-Servicing Works or off-site grading, the
Owner must obtain a letter from the abutting/adjacent landowner, which
authorizes the Owner, it officers, employees, agents and the City to enter
onto their property to complete and inspect such Pre-Servicing Works. A
copy of the written authorization shall be provided to the Director,
Engineering & Public Works prior to the initiation of such Pre-Servicing
Works.
6. Reliance by City on this Agreement
This Agreement is entered into and executed by the Owner for the purpose of having
the City act in reliance on the covenants by the Owner contained herein and the Owner
hereby waives any right or claim which it now has or may hereinafter acquire which is
inconsistent with the terms of this Agreement.
7. Consulting Engineers and Drawing/Plan Submission
(1) Tlie Owner shall retain a Professional Engineer as the Consulting
Engineer of the Owner to carry out all the necessary engineering and to
supervise the work required to be done for the development and
construction of this project.
(2) Such Consulting Engineer, or any successor thereto, shall continue to be
retained until the work required to be done for the development and
construction of the project is completed and formally accepted by the City.
(3) The Owner may change from one Consulting Engineer to another at any
time or times during the development and construction of the project, so
long as the Owner has a Consulting Engineer retained at all times.
(4) The Owner shall satisfy the City respecting the submission of appropriate
engineering drawings that detail, among other things, City services, roads,
storm sewers, stormwater management facilities, sidewalks, lot grading,
streetlights, fencing, tree planting, measures to protect the existing trees
to be retained and financially secure the Pre-Servicing Works.
8. Authorization to Commence Work
The Owner shall not commence the construction or installation of any of the
works referred to in this Pre-Servicing Agreement without the written
Authorization to Commence Work of the Director, Engineering & Public Works,
which Authorization shall not be issued until:
(1) there are adequate services available to the Lands, including water
pressure to the satisfaction of the City's Fire Services Department;
(2) two copies of this Agreement executed by the Owner and all
Encumbrancers have been provided to the City;
2
(3)
(4)
(5)
· , . . . . ATTACHMEN.T#___[_ TO REPORT# .LEr:,
all insurance requirements, as noted in this Agreement, and the 3'.of. j 3 0 CJ -1 ~
Performance & Maintenance Security have been delivered to the City to
the satisfaction of the City's Treasurer and the Director, Engineering &
Public Works;
a Construction Management Plan has been submitted addressing such
matters, among other things, as sediment controls, road cleaning, access
during construction, mud and dust control during all phases of
development, building material and soil storage areas, parking areas for
construction workers during the servicing stage, topsoil stockpile location,
working hours according to City By-laws and compliances with the City
Noise By-law to the satisfaction of the Director, Engineering & Public
Works; and
all approvals and permits have been obtained by the Owner from the
appropriate agencies, including but not limited to the Ministry of
Environment and Climate Change, the Ministry of Natural Resources and
Forestry, the applicable Conservation Authority, and the Regional
Municipality of Durham, or a certificate has been provided by the Owner's
Consulting Engineer that no such approvals or permits are required, to the
satisfaction of the Director, Engineering & Public Works.
9. Performance and Maintenance Security
(1) Before the Owner shall commence any of the Pre-Servicing Works, the
Owner shall file with the City an irrevocable letter of credit, issued by a
chartered bank in Canada or such other form of security as may be
acceptable to the City in its sole and unfettered discretion, and in an
amount established by the Director, Engineering & Public Works (the
"original value"), as a Performance and Maintenance security for the
purpose of,
(a) guaranteeing the satisfactory construction, installation or
performance of the Pre-Servicing Works;
(b) guaranteeing the payment of any amounts payable to the City
under this Agreement;
(c) guaranteeing the payment of any amount that the City may be
required to pay under the provisions of the Construction Lien Act, or
any successor thereto;
(d) guaranteeing all Pre-Servicing Works, workmanship and materials;
and
(e) guaranteeing the keeping in force of adequate insurance
throughout the performance of the Pre-Servicing Works, including
during the Maintenance Period and any rectification period(s).
(2) The Owner and the City agree that the securities required hereunder will
not be reduced or cancelled otherwise than in accordance with a fully
executed and registered Subdivision Agreement.
10. Expiry of Securities
( 1)
(2)
Should any Letter of Credit security required to be provided herein expire
before the City-releases the Owner from the terms and conditions hereof,
the Owner shall provide to the City at least 30 days in advance of the
expiry date of that security, a further security to take effect upon the
expiry.
Such further security shall be in a form and amount satisfactory to the
City. ·
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. ATTACHMENT# _j_ TO REPORT# j_[? G,
L(-.of. ( 3 -0:;).-// (3) Should no such further security be provided as required, then the City c Y7
shall have the right to convert the expiring security into cash and hold the
cash in lieu of and for the same pu rposes as the expiring security.
11. Tree Inventory/Tree Preservation Program
(1) Prior to the commencement of any Pre-Servicing Works, the Owner shall
submit a Tree Inventory and a Tree Preservation Program (the "Program")
prepared by a qualified expert and based upon the City-approved Grading
Control Plan, indicating which existing trees in the project may be
preserved. The Program shall be submitted for the review and approval of
the-Director, Engineering & Public Works.
(2) Until the Program is approved the Owner shall not commence, nor allow-to
be commenced, any aspect of the development of the Lands in the
project, including the removal of any tree.
(3) The Owner covenants and agrees to preserve the existing trees as
indicated in the approved Program prepared by , dated
________ , and on file at the City's Engineering & Public
Works Department as File No. ______ _
(4) The Owner covenants and agrees to further submit two copies of the site
grading/Program to the City's Engineering & Public Works Department, for
approval at the building permit stage. The site grading/Program shall
show the location of the dwelling units to be constructed with respect to
the trees to be preserved, the location of the protective fencing and the
proposed grades in accordance with the Program. These plans are to be
reviewed and approved by the Owner's Landscape Architect or Arborist,
prior to being submitted to the City's Engineering & Public Works
Department for approval.
(5) The Owner covenants and agrees to install tree protection fencing prior to
the start of any construction activity on site. This fence is to be to the
satisfaction of the Director, Engineering & Public Works. No disruption of
vegetation or disposal of fill shall occur beyond this point during the
construction period. The tree protection fencing shall remain in place until
all grading, construction and landscape works are completed. The Owner
covenants and agrees not to remove trees without prior written approval of
the City.
(6) Every precaution necessary shall be taken to prevent damage to the trees
and vegetated areas and this shall include the following:
(a) areas within the protective fencing shall remain undisturbed and
shall not be used for the storage of surplus soil, debris and building
materials ()r equipment;
(b) no contaminants will be dumped or flushed where feeder roots of
vegetation exist;
(c) no vegetation or tree limbs shall be removed, pruned or otherwise
damaged during the course of construction; and
(d) no rigging cables shall be wrapped around or installed in trees to be
preserved.
(7) In the event that any tree required to be preserved by the approved
Program is removed or is, in the opinion of the Director, Engineering &
Public Works, damaged to such an extent that its value or longevity is
decreased or is likely to be decreased, then the Owner shall replace that
tree with a tree of a height, diameter and species determined by such
Director. Such replacement shall be at no cost to the City.
4
ATTACHMENT#_l _ TO REPORT# }.___e ~
. 5 .ot.(5 0'''-11~ This section 13 does not apply if tree removal has been approved by the C7 'f
City pursuant to the permit issued under the City's Fill and Topsoil By-law.
(8)
12. Utility/Services/Utility Coordination Plan
(1) Prior to the commencement of any of the Pre-Servicing Works, the Owner
agrees to provide the City with a Utility Coordination Plan, to the
satisfaction of the Director, Engineering & Public Works, showing the
locations of all above-ground utilities including, but not limited to,
streetlight poles, transformers, telecommunication pedestals (Bell,
Rogers), etc., as well as the location of all road crossings.
(2) The Utility Coordination Plan shall also show the locations of the proposed
street trees in relation to the utilities to ensure there is no conflict with any
utility and all proposed temporary and permanent community mailbox
locations.
(3) The Owner shall demonstrate to the satisfaction of the Director,
Engineering & Public Works that it has made satisfactory arrangements
with the appropriate authorities regarding the provision of underground
wiring, street lighting, cable television, natural gas, community postal
boxes and other similar services.
(4) The Owner acknowledges that, where electricity, cable television service
or telephone service is to be provided to any lot or block in the project, it
shall be provided underground and in accordance with the standards and
specifications of Veridian Corporation, Rogers Cable Inc., Bell Canada or
Enbridge Gas, as the case may be.
(5) The Owner agrees to grant such easements as may be required for
access to, or maintenance of, such utilities to the appropriate authority, at
the Owner's cost.
(6) The Owner agrees that the cost of any relocation, extension, alteration or
extraordinary maintenance of existing services necessitated by the
installation of the Pre-Servicing Works shall be the responsibility of the
Owner.
13. General Regulations Respecting Servicing
(1) The Owner shall not dump nor permit to be dumped any fill or debris on,
nor remove or permit to be removed any fill from, any public lands, other
than in the actual construction of roads in the project without the written
consent of the authority responsible for such lands.
(1) The Owner shall not burn nor permit to be burned any refuse or debris
within the project or adjacent to it.
(2) Where the construction or installation of services involves a continuation
or extension of existing services, the Owner shall join into the existing
services, including adjustment of grades where necessary, in a good and
workmanlike manner.
(3) The Director, Engineering & Public Pre-Servicing Works may determine it
necessary for additional geotechnical investigations and/or reports to be
done by the Owner which may include, but not be limited to qualitative or
quantitative tests made of any materials which have been, or are
proposed to be, used in the construction or installation of any services
required by this Agreement.
(a) In the event such investigations and/or reports are not provided to
the City, to the satisfaction of the Director, Engineering & Public
Works, the City will undertake the work and the cost ofsuch
5
. ATJ'ACHrviENT # . I . TO REPORT# J_ E ~
0 .ot.( _3 od ~I (p
investigations and/or reports shall be paid by the Owner within 30
days of invoices being rendered.
(4) The Director, Engineering & Public Works may determine it necessary for
roads, laneways, sidewalks, walkways, etc., to be cleaned and/or flushed
to eliminate and/or control dust, dirt, mud, debris, etc., by the Owner
resulting from the Pre-Servicing Works being done within this
development. ·
(a) In the event such Pre-Servicing Works not completed by the Owner
to the satisfaction of the Director, Engineering & Public Works, the
City will undertake such work and the cost of the Pre-Servicing
Works shall be paid by the Owner within 30 days of invoices being
rendered.
(5) The Owner shalf:
(a) relocate any existing services or utilities required to be relocated by
the construction or installation of Pre-Servicing Works, services, or
utilities in the project;
(b) move any Pre-Servicing Works, services or utilities installed in
driveways or so close thereto, in the opinion of the Director,
Engineering & Public Works, as to interfere with the use of the
driveway; and
(c) in the event such Pre-Servicing Works are not completed by the
Owner to the satisfaction of the Director, the City will undertake such
work and the cost of the Pre-Servicing Works shall be paid by the
Owner within 30 days of invoices being rendered.
(6) The Owner shall provide and erect temporary signs of such nature and at
such locations as designated by the Director, Engineering & Public Works.
(7) Unless otherwise provided herein, the Owner shall perform any and all
work required to be done under this Agreement to the specifications of the
City and at the Owner's cost.
14. Failure to Complete/Improper Performance
(1) If, in the opinion of the Director, Engineering & Public Works, the Owner is
not constructing or installing the Pre-Servicing Works, or causing them to
be constructed or installed, within the specified time or so that they may
be completed within the specified time, or is improperly performing the
Pre-Servicing Works, or has neglected or abandoned them before
completion, or has unreasonably delayed them so that the terms and
conditions of this Agreement are being violated or executed carelessly or
in bad faith, or has neglected or refused to renew or again perform Pre-
Servicing Works rejected by such Director as defective or unsuitable, or
has in any other manner, in the opinion of such Director, defaulted in the
performance of the terms and conditions of this Agreement, then such
Director may notify the Owner and his surety in writing of the default or
neglect and may require the rectification or removal of the Pre-Servicing
Works and if the notification be without effect for seven days, then such
Director shall have full authority to make any payment or do anything,
including but not limited to obtaining materials, tools and machinery and
employing persons required for the proper completion of the Pre-Servicing
Works or rectification of the default or removal of the Pre-Servicing Works,
at the cost and expense of the Owner or his surety, or both.
(2) In cases of emergency, in the opinion of the Director, Engineering & Public
Works, such Director may act without prior notice but the Owner and its
surety shall be notified forthwith.
6
ATTACHMENT# ·; TO REPORT# L FG::t
. ~ .of. I 3 Dr9 -( (-
(3) The cost of rectifying the default shall be calculated by the Director, Y
Engineering & Public Works, whose decision shall be final, and may be
charged to the Owner, together with a 25 percent engineering and
administration fee, by drawing upon the letter of credit filed with the City.
15. Guarantee of Pre-Servicing Works, Workmanship and Materials
(1) The Owner shall guarantee all Pre-Servicing Works, workmanship and
materials employed or used in the construction, installation or completion
of Pre-Servicing Works, services and other requ ire ments under this
Agreement. Such guarantee shall not expire until such time as is
specified in the Subdivision Agreement.
(2) Despite any other provisions of this Agreement, the responsibilities of the
Owner shall include the maintenance of the Pre-Servicing Works,
including the rectification and/or stabilization of any unsatisfactorily
installed or incomplete Pre-Servicing Works.
16. Use of Pre-Servicing Works Pending Completion/Emergimcy Repairs
(1) Any of the Pre-Servicing Works may be used by the City, or by such other
person or agency as may be authorized by the Director, Engineering & Public
Works, for the purposes for which the Pre-Servicing Works are designed, and
such use shall not be deemed an acceptance of any of the Pre-Servicing Works
by the City, nor an assumption by the City of any liability in connection therewith,
nor a release of the Ownerfrom any of its obligations under this Agreement.
(2) The City may make emergency repairs at any time to any of the Pre-
Servicing Works and may for this purpose enter the Lands at any time; such
repair or entry shall not be deemed an acceptance of any of the Pre-Servicing
Works by the City, nor an assumption by the City of any liability in connection
therewith, nor a release of the Owner from any of its obligations under this
Agreement.
17. Internal/External Road Maintenance and Repair/Snow Plowing
Throughout the term of this Agreement, the Owner shall,
(1) maintain all City roads within the project in a mud and dust free condition
and free of obstructions, regardless of the source or cause of any mud,
dust or obstruction;
(2) maintain all City roads outside the project, including boulevards and
sidewalks, in a mud and dust free condition and free of obstructions,
where the source or cause of the mud, dust or obstruction is an operation
or operations related in any way to the development of the project;
(3) repair all City roads outside the project: including boulevards, where
damage has bccurred as a result of an operation or operations related in
any way to the development of the project; and
(4) plow snow from and salt all City roads within the project that are not
subject to the City's winter control program,
to the sole discretion and satisfaction of the Director; Engineering & Public
Works. In the event it is determined by the Director, Engineering & Public Works
that Pre-Servicing Works are required to be done to satisfy the conditions above,
the Owner shall complete such Pre-Servicing Works within 24 hours of being
notified, in writing.
18. Insurance
(1) Before commencing any of the Pre-Servicing Works set out in this
Agreement, the Owner shall supply the City with a completed "Certificate
7
ATTACHMENT.# _J_ TO REPORT# J_ e:-~
.~.of. 13 . 11 _
of Insurance" in the form attached hereto as Schedule and which Od -"(/
form will be provided by the City and satisfactory to the City, verifying that
a liability insurance policy is in place.
(2) As noted on the Certificate of Insurance, the policy shalt-include, among
other provisions,
(a) name the City of Pickering as an additional insured;
(b) set the minimum limit at $5,000,000.00 all inclusive for property
damage and personal liability;
(c) contain a clause including blasting, if blasting is to occur; and
(d) remain in full force and effect until the date on which insurance is
put in place in accordance with the executed and registered
Subdivision Agreement has been issued by the City.
(3) The policy premium shall be paid initially for a period of one year and the
policy shall be renewed for further one-year periods until the date set out
in section 22(2)(d) above.
(4) The Owner acknowledges that, the City may, at its discretion, draw upon
the Owner's Letter of Credit to pay for:
(a) the Owner's policy premium to keep adequate insurance in place
until such time as the City has issued the Final Acceptance
Certificate; and
(b). the City's administration fee of $250.00, plus HST, per renewal,
if at any time, prior to the date set out in section 22(2)(d) above, the
insurance policy referred to above is cancelled.
(5) ·If the policy is subject to a deductible amount, the Security provided for by
the Owner to the City pursuant to this Agreement shall also be available to
be called upon by the City to pay for any amount required to be paid for by
the Owner as the Owner's deductible under the aforesaid insurance policy
and not otherwise paid for by the Owner.
(6) The provision of the insurance policy required by this section shall not
relieve the Owner from liability for claims not covered by the policy or
which exceed its limits, if any, for which the Owner may be held
responsible .
19. Owner's General Indemnity
The Owner shall indemnify the City from all losses, damages, costs, expenses,
claims, demands and actions of every nature and kind whatsoever, including
death or injury (collectively referred to as 'losses'), arising directlx or indirectly
from the failure to construct the Pre-Servicing Works pursuant to this Agreement
or the Owner's failure to comply in all respects with all other requirements under
this Agreement, whether or not such losses are incurred by reason of negligence
or on the part of the Owner and whether such losses are sustained by the City,
the Owner, or their employees, workmen, servants, agents or any other person
or corporation.
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' . ; ' . :
ATT~CHMENT#_l__ TO REPORT# J_~ 9 cr .of. 13 Qd -l(p 20. Occupational Health and Safety
(1) The Owner certifies that it is aware of its duties and obligations under the
Occupational Health and Safety Act, or any successor thereto, and all
Regulations thereunder (in this section called the "Act"), and shall ensure
that its employees, contractors, subcontractors and their employees,
(a) are aware of their respective duties and obligations under the Act;
and
(b) have sufficient knowledge and training to perform all Pre-Servicing
Works and services required pursuant to this Agreement safely and
in compliance with the Act. ·
(2) In the performance of all Pre-Servicing Works and services required
pursuant to this Agreement, the Owner shall,
(a) act safely and comply in all respects with the Act; and
(b) ensure that its employees, contractors, subcontractors and their
employees act safely and comply in all respects with the Act.
(3) The Owner shall rectify any unsafe act or practice and any non-
compliance with the Act immediately upon being notified by any person of
the existence of such act, practice or non-compliance.
( 4) The· Owner shall permit representatives of the City on the site where any
works or services required pursuant to this Agreement are being
performed at any time or times for the purpose of inspection to determine
compliance with this section.
(5) No act or omission by the City or any representative of the City (including
the entering into of this Agreement) shall be deemed to be an assumption
of any of the duties or obligations of the Owner, its employees,
contractors, subcontractors and their employees under the Act.
(6) In addition to the Owner's general indemnification of the City, the Owner
shall indemnify and save harmless the City,
(a) from any loss, inconvenience, damage or cost to the City which
may result from the Owner or any of its employees, contractors,
subcontractors and their employees failing to act safely or to
comply in all respects with the Act in the performance of any work
or service required pursuant to this Agreement; and
(b) against any action or claim, or costs related thereto, brought
against the City by any person arising out of any unsafe act or
practice or any non-compliance with the Act by the Owner or any of
its employees, contractors, subcontractors and their employees in
the performance of any work or service required pursuant to this
Agreement.
(7) The Owner agrees that no blasting shall take place on the Lands. In the
event that blasting becomes necessary, the Owner shall provide the City
with all necessary amendments to the insurance policy provided to the
City, in a form acceptable to the City's Treasurer prior to initiating any
such blasting on the Lands.
21. Pay Assurance
(1) In this section,
(a) "Prime Contract" means a direct contract with the Owner for the
construction of any of the Pre-Servicing'Works;
9
ATTACHMENT# / ... TO REPORT# }.__~
. /0 .of.;_3 . O ·'l -/1 _ "Prime Contractor" means the party contracting with the Owner C7 y
under a Prime Contract;
(b)
(2) Where a Prime Contractor notifies the City, in writing, that monies are
payable in relation to any of the Pre-Servicing Works identified in a Prime
Contract, the City is hereby authorized to draw upon the securities posted
by the Owner. under this Agreement and place such funds in escrow
provided;
(a) the Owner has notified the City, in writing, of the name of the Prime
Contractor prior to the commencement of construction;
(b) the Prime Contractor operates at arm's length from the Owner and
is not otherwise under the control of the Owner;
(c) the Owner has posted security in accordance with this Agreement;
(d) the Prime Contractor has delivered to the City a true copy of its
invoice addressed to the Owner for payment under the Prime
Contract; ·
(e) payment of the invoice has been outstanding for a period of at least
ninety-one (91) calendar days or such longer period of time as may
be set out for payment in the Prime Contract;.
(f) the Owner's Consulting Engineer has certified,
(i) that the work invoiced to the Owner by the Prime Contractor
for which payment is sought has been completed satisfactorily in
accordance with the Owner's obligations under this Agreement;
(ii) the date upon which the Prime Contractor's invoice became
due and payable under the Prime Contract; and
(iii) that the Prime Contractor has performed all of its obligations
under the Prime Contract,
(g) the Prime Contractor has delivered to the City proof that it has
made a written demand for payment to the Owner to which the
Owner has not responded for a period of at least thirty (30) days
and beyond the ninety-one (91) day period set out in (e) above; and
(h) the Prime Contractor has executed a Release and Indemnity in a
form satisfactory to the City, releasing the City from any and all
claims the Prime Contractor may have against the City and
indemnifying the City against any and all claims for loss arising
from any source whatsoever resulting from the City's payment into
escrow and agreement to be bound by the dispute resolution
process under the Arbitration Act, 8.0.1991, c.17, as amended.
(3) The City shall not process a payment in favour of the Prime Contractor
unless the amount claimed is at least twenty-five thousand dollars
($25,000.00).
(4) The City shall be entitled to reimbursement of its administrative costs
which shall be deducted from each payment processed in favour of the
Prime Contractor in the amount of either $3 ,000.00 or 2% of each
payment processed, whichever is greater.
(5) The Owner shall not make any claims against the City and hereby
releases and agrees to indemnify the City of and from any claims arising
from the release of any funds drawn from the security posted by the
Owner or as a result of any action taken under this section.
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ATTACHMt.NT#_j___ TO REPORT#
(6)
II .ot. 13
Under no circumstances shall the City be obliged to draw down and pay
the full amount of security it holds under this Agreement. For greater
certainty, the City shall not be left with less than one hundred percent
(1 00%) of the value of uncompleted Pre-Servicing Works plus ten percent
(1 0%) of the value of all completed Pre-Servicing Works.
(7) If the City makes payments to the Prime Contractor in accordance with
this Agreement, the Pre-Servicing Works for which the Prime Contractor
receives payment from the City out of the Owner's security shall be
credited toward the Owner's obligations under this Agreement Jess ten
percent (1 0%) on account of maintenance and less applicable
administrative charges (as outlined in subsection (4).
(8) The procedure set out in this section shall have no application in cases
where the installation of the Pre-Servicing Works is done prior to execution
of this Agreement.
(9) The Owner shall make explicit reference to these pay assurance
provisions in any Prime Contract.
(1 0) The City shall have no obligation to pay the Prime Contractor except in
accordance with this section.
(11) If for any reason the City has released securities or is unable to cash or
access the Letter of Credit, there shall be no claim against the City
available to a Prime Contractor.
(12) The disputed payment under the Prime Contract shall be submitted to
arbitration pursuant to the Arbitration Act, S.O. 1991, c.17, as amended.
(13) The City shall pay monies out of escrow in accordance with the final
award under the Arbitration Act, S.0.1991, c.17, as amended.
22. Payment of Liens and Other Claims
(1) The Owner shall discharge or vacate any liens or claims filed with the City
or registered on title to any City-owned lands within thirty days of being
requested to do so by the City.
(2) At the end of the maintenance period, as extended during any rectification
period, the Owner shall file with the City a Statutory Declaration stating
that,
(a) all materials have been supplied and all services and Pre-Servicing
Works have been completed with respect to the construction and
installation of Pre-Servicing Works and other services;
(b) all accounts for work or service performed and materials placed or
furnished upon or in respect of the construction and installation of
Pre-Servicing Works and other services have been fully paid and
satisfied and no person is entitled to claim a lien under the
Construction Lien Act against the City or any City-owned land;
(c) there are no judgments or executions filed against the Owner;
(d) nothing is owed by the Owner or claimed against it for
unemployment insurance deductions, income tax deductions, or by
way of contribution or assessment under the Workplace Safety and
Insurance Act, 1997;
(e) the Owner has not made any assignment for the benefit of
creditors, nor has any receiving order been made against it under
the Bankruptcy Act, nor has any petition for such an order been
served upon the· owner; and
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f\TTACHlViENT# J TO REPORT# ,l_e L~
/d-.ot./ 3 Q 1 I_ (f) 45 days have passed since the completion of the construction, · ~-( lp
installation, and last rectification of the Pre-Servicing Works and
services.
23. Payment of Interest on Overdue Amounts
The Owner shall pay interest at the rate of 15 percent per year to the City on all sums of
money payable hereunder which are not paid on the due dates calculated from such
due dates.
24. General Provisions
(1) The recitals at the head of this Agreement are true and accurate and form
a part hereof.
(2) The parties hereto may only amend this Agreement by further agreement
in writing executed by all parties hereto.
(3) All references to currency in this agreement shall be references to
Canadian dollars.
(4) Words importing gender include all genders.
(5) The captions and headings contained herein are for reference only and in
no way affect this Agreement or its interpretation.
(6) In the event that any date specified or any date contemplated in this
Agreement shall fall upon a day other than a Business Day, then such
date shall be deemed to be the next following Business Day.
(7) This Agreement shall be construed and enforced in accordance with the
laws of the Province of Ontario and the laws of Canada applicable thereto
and shall be treated in all respects as an Ontario contract.
(8) The Agreement shall enure to the benefit of and shall be binding upon the
parties and their respective heirs, successors and permitted assigns.
(9) This Agreement shall be registered against title to the Lands forthwith
upon its execution by all parties.
(1 0) The Owner shall execute such further assurances as may be reasonably
necessary to give effect to this Agreement.
(11) Whenever in this Agreement the pronoun "it" is used, it shall be read and
construed as "he", "she", "they",·"him", "her" or "them", and the number of
the verb agreeing therewith shall be construed accordingly.
(12) Any reference made in this Agreement to a Director, it shall include the
Director or his/her designate.
(13) Schedules __ . attached hereto shall form part of this Agreement.
25. Binding Parties
This Agreement shall be enforceable by and against the parties hereto, their
heirs, executors, administrators, successors and assigns, and the Agreement
and all the covenants by the Owner contained herein shall run with the Lands for
the benefit of the City and the land or interests in land owned by the City upon
the registration of the plan.
26. Notice
(1) Any notice required to be given in this Agreement shall be in writing, as
foiiOVfS:
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