HomeMy WebLinkAboutENG 05-23Report to Council
Report Number: ENG 05-23
Date: April 24, 2023
From: Richard Holborn
Director, Engineering Services
Subject: Road Servicing Agreement with Tribute (Liverpool) Limited
-Walnut Lane Extension – Construction Component
-File: A-1440
Recommendation:
1.That the City of Pickering enter into a Road Servicing Agreement with Tribute (Liverpool)
Limited to facilitate for the construction of the Walnut Lane extension between Kingston
Road and Liverpool Road;
2.That the Mayor and City Clerk are hereby authorized to execute the Road Servicing
Agreement between the City of Pickering and Tribute (Liverpool) Limited in substantially
the same form as attached to this report, subject to revisions acceptable to the Director,
Engineering Services and the Director, Corporate Services & City Solicitor;
3.That Council authorize the Director, Finance & Treasurer to finance the gross project cost
of $8,778,120.00 (HST included) and net project cost of $7,904,969.00 (net of HST
rebate) as outlined in the Road Servicing Agreement and approved in the 2022 and 2023
Capital Budgets as follows:
a)the sum of $1,976,242.00 to be funded from the City’s DC Share Reserve;
b)the sum of $5,928,727.00 to be funded from the Development Charges Transportation
Reserve Fund; and,
4.That the appropriate City of Pickering officials be authorized to take the necessary
actions as indicated in this report.
Executive Summary: Through Resolution #988/22 (Attachment #1), Council approved
entering into a Road Servicing Agreement with Tribute (Liverpool) Limited related to the design
and approvals component of the Walnut Lane extension between Kingston Road and Liverpool
Road. This component has a net project cost of $655,029.00 (net of HST rebate) funded 25
per cent from the City’s DC Share Reserve and 75 per cent from the Development Charges
Transportation Reserve Fund.
City staff are now recommending that a Road Servicing Agreement with Tribute (Liverpool)
Limited be executed to cover all requirements by the City for construction. The Road Servicing
Agreement will include an upset limit of $7,768,248.00 plus HST for construction, as approved
in the 2022 and 2023 Capital Budgets.
ENG 05-23 April 24, 2023
Subject: Road Servicing Agreement with Tribute (Liverpool) Limited
Walnut Lane Extension – Construction Component Page 2
Financial Implications: The cost to prepare the Municipal Class Environmental
Assessment was approved in the 2017 and 2018 Capital Budgets in the total amount of
$461,226.00 (net of HST rebate). AECOM Canada Ltd. was retained by the City of Pickering
through Request for Proposal RFP-13-2016 and Report ENG 03-17 (Resolution #294/17) to
complete this work.
In the 2022 Capital Budget – Development Projects (DC Funded) account, an amount of
$6,550,300.00 (net of HST rebate) was approved for the completion of design, approvals,
permits and construction of the Walnut Lane extension. The amount included $655,029.00 (net
of HST rebate) for consulting soft costs, and $5,895,271.00 (net of HST rebate) for
construction costs based on the cost estimate at the time. The estimated cost for the design,
construction and inspection/contract administration for the Walnut Lane extension was updated
and increased to $8,560,000.00 (net of HST rebate) due to current market conditions and the
requirement for a larger span structure over Pine Creek. The 2022 Development Charges
Study as approved by Council at the June 27, 2022 Council meeting reflects the revised cost
estimate.
In the 2023 Capital Budget – Development Projects (DC Funded) account, additional funds in
the amount of $2,009,700.00 (net of HST rebate) is being approved to bring the estimated total
net project cost up to the $8,560,000.00 required.
1.Road Servicing Agreement Amount
Road Servicing Agreement – Construction $7,768,248.00
Total Project Cost (excl taxes) 7,768,248.00
HST (13%) 1,009,872.00
Gross Project Cost 8,778,120.00
HST Rebate (11.24%) (873,151.00)
Net Project Cost to City (incl 1.76%) $7,904,969.00
2.Estimated Project Cost Summary
Road Servicing Agreement – Design (ENG 21-22) $643,700.00
Road Servicing Agreement – Construction 7,768,248.00
Total Project Cost 8,411,948.00
HST (13%) 1,093,554.00
Total Gross Project Cost 9,505,502.00
HST Rebate (11.24%) (945,502.00)
Total Net Project Cost to City (incl 1.76%) $8,560,000.00
ENG 05-23 April 24, 2023
Subject: Road Servicing Agreement with Tribute (Liverpool) Limited
Walnut Lane Extension – Construction Component Page 3
3. Approved Source of Funds Available
Expense Code Source of Funds Budget Required
C10575.1801 City's Share DC Reserve $1,976,242.00 $1,976,242.00
C10575.1801 DC Transportation
Reserve Fund 5,928,727.00 5,928,727.00
Total $7,904,969.00 $7,904,969.00
Under/(Over) Approved Funds $0.00
Discussion: Tribute (Liverpool) Limited are pursuing approvals for a residential high-rise
development consisting of three towers on the west side of Liverpool Road, north of Highway
401 through Zoning By-law Application A08/21 and Site Plan Application S01/22. On June 27,
2022, Council approved a site-specific zoning by-law amendment to facilitate the development
of high-density, mixed-use development, consisting of 3 residential towers having heights of
46, 49 and 53 storeys, containing a total of 1,779 units and 1,155 square metres of commercial
space at grade. A complete site plan application was received on December 17, 2021, and is
currently under review. The lands are subject to an “H3” Holding Symbol, within the City
Centre Zoning By-law 7553/17, as amended, which requires, along with other conditions, that
the owner demonstrate to Council’s satisfaction that appropriate public road infrastructure is in
place or will be provided in conjunction with the development. The public road infrastructure
includes the Walnut Lane extension.
Report ENG 21-22 was considered by Council at the September 20, 2022 Council Meeting.
Through Resolution #988/22, Council authorized the Mayor and City Clerk to execute the Road
Servicing Agreement to facilitate the design and approvals for the construction of the Walnut
Lane extension between Kingston Road and Liverpool Road. The net project cost of
$655,029.00 (net of HST rebate) which was approved in the 2022 Capital Budget, was
included in the agreement as an upset limit. The Road Servicing Agreement for design has
been fully executed and design is currently underway.
For the Road Servicing Agreement to facilitate construction, the balance of funds approved in
2022 ($5,895,271.00 net of HST rebate) plus the funds approved in the 2023 Capital Budget
($2,009,700.00 net of HST rebate), will be required and included in the agreement as an upset
limit. The total cost to be committed for construction is $7,904,971.00 (net of HST rebate).
The execution of the Road Servicing Agreement with Tribute will satisfy one of the
requirements of the “H3” Holding Symbol, ensuring the required lands for the Walnut Lane
extension will be conveyed to the City and the road will be substantially constructed by Tribute
to facilitate the appropriate vehicular and pedestrian access and extension of municipal
services.
ENG 05-23 April 24, 2023
Subject: Road Servicing Agreement with Tribute (Liverpool) Limited
Walnut Lane Extension – Construction Component Page 4
Attachments:
1.Council Resolution #988/22
2.Draft Road Servicing Agreement
3.Location Map
Prepared/Approved/Endorsed By:
Richard Holborn
Director, Engineering Services
Paul Bigioni
Director, Corporate Service & City Solicitor
Stan Karwowski, MBA, CPA, CMA
Director, Finance & Treasurer
RH:mjh
Recommended for the consideration of Pickering City
Council
Marisa Carpino, M.A.
Chief Administrative Officer
Original signed by:
Original signed by:
Original signed by:
Original signed by:
Legislative Services Division
Clerk’s Office
Directive Memorandum
September 28, 2022
To: Richard Holborn
Director, Engineering Services
From: Susan Cassel
City Clerk
Subject: Direction as per Minutes of the Meeting of City Council held on
September 20, 2022
Director, Engineering Services, Report ENG 21-22
Road Servicing Agreement with Tribute (Liverpool) Limited
Walnut Lane Extension – Design Component
Council Decision Resolution #988/22
Please take any action deemed necessary.
Susan Cassel
Copy: Director, Finance & Treasurer
Director, Corporate Services & City Solicitor
Chief Administrative Officer
1.That the City of Pickering enter into a Road Servicing Agreement with Tribute (Liverpool)
Limited to facilitate the design and approvals for the construction of the Walnut Lane
extension between Kingston Road and Liverpool Road;
2.That the Mayor and City Clerk are hereby authorized to execute the Road Servicing
Agreement between the City of Pickering and Tribute (Liverpool) Limited in substantially
the same form as attached to this report, subject to minor revisions acceptable to the
Director, Engineering Services and the Director, Corporate Services & City Solicitor;
3.That Council authorize the Director, Finance & Treasurer to finance the gross project
cost of $727,381.00 (HST included) and net project cost of $655,029.00 (net of HST
rebate) as outlined in the Road Servicing Agreement as follows:
a)the sum of $163,757.00 to be funded from the City’s DC Share Reserve;
b)the sum of $491,272.00 to be funded from the Development Charges Transportation
Reserve Fund; and,
4.That the appropriate City of Pickering officials be authorized to take the necessary
actions as indicated in this report.
Attachment #1 to Report ENG 05-23
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This Agreement made the ____ day of February, 2023
B E T W E E N:
Tribute (Liverpool) Limited
(the “Owner”)
and
The Corporation of the City of Pickering
(the “City”)
Whereas the Owner is the owner of certain lands within the City of Pickering, Regional
Municipality of Durham which are being developed pursuant to development application S01-
22; and
Whereas as a condition of site plan approval S01-22, the Owner is required to construct part of
the proposed municipal roadway known as Walnut Lane (as described in paragraph 1 hereof)
which road is as of the date hereof partially owned by the City and the Owner, to urban standards,
and install certain applicable services at its expense in accordance herein; and,
Whereas the Owner further agrees that the construction of road works and the installation of
services will be completed to base course asphalt by January 1, 2025 and the surface works will
be completed prior to January 1, 2027.
The Parties agree as follows:
1.Lands Affected
The lands and premises affected by this Agreement are:
(1)part of Lot 23, Concession 1 (Geographic township of Pickering), more particularly
designated as Parts 3, 4, 6, 11, 15, 17, 18, 19, 20, 21, 23, 25, 26, 28, 30, 31, 33,
34, 35, 36, 37, 38 and 39 on Plan 40R⚫, (hereinafter referred to as the “Owner
Owned Walnut Lane Lands”); and
(2)(a) Part of Lots 23 and 24, Concession 1 Pickering being Part 39, Plan 40R-25448
and Part 5, Plan 40R-26227; (b) Part of Lots 23 and 24, Concession 1 Pickering,
being Parts 4 and 6, Plan 40R-26227; (d) Part of Lot 24, Concession 1 Pickering,
being Parts 2 and 3 on 40R26227; and (d) Part of Lot 24, Concession 1 Pickering,
being Part 7, 40R-25266 and Parts 41, 42 and 43, Plan 40R-25448 (hereinafter
collectively referred to as the “City Owned Walnut Lane Lands”).
The Owner Owned Walnut Lane Lands and the City Owned Walnut Lane Lands are
hereinafter referred to collectively as the “Lands”.
2.Status of this Agreement
(1)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.
(2)Time shall be of the essence of this Agreement.
Attachment #2 to Report ENG 05-23
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3.Interpretation
(1)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.
(2)Wherever in this Agreement the word “Director” is used, it shall mean the City’s
Director, Engineering Services.
4.Notice
(1)Any notice required in writing in this Agreement shall be delivered to the following
address:
to the Owner at:
1815 Ironstone Manor
Unit 1
Pickering, ON L1W 3W9
Attention: Steve Deveaux, Email: steve.d@mytribute.ca
and to the City at:
Pickering Civic Complex
One The Esplanade
Pickering, ON L1V 6K7
Attention: City Clerk, Email: clerks@pickering.ca
(2)Notice shall be sufficiently given if delivered in person, sent by registered mail or
electronic means using the electronic method set forth above.
(3)Each notice shall be sent during normal business hours, on a business day and
shall be deemed to have been received as follows:
(a)delivered in person – on the day it was delivered;
(b)sent by registered mail – on the third business day after it was mailed
(excluding each business day during which there existed any general
interruption of postal services due to strike, lockout or other cause); or
(c)delivered by electronic means – at the time of such delivery.
(4)The Owner may change its address for notice by giving notice to the Director in
the manner provided above.
5.Binding Parties
This Agreement shall be enforceable jointly and severally by and against the parties
hereto, their successors and assigns.
6.Right to Enter (if Lands still in private ownership)
The City may, by it officers, employees or agents, enter on the Owner Owned Walnut
Lane Lands or any part of the Owner Owned Walnut Lane Lands, as well as any
building(s) erected on the Owner Owned Walnut Lane Lands to ensure that any works,
services or facilities required to be provided, constructed or installed by the Owner,
comply with this Agreement.
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7.Owner’s General Undertaking
The Owner shall complete the construction of the Lands and the installations of services
in a good workmanlike manner for the City, all the municipal services as hereinafter set
forth to the satisfaction of the City, and shall complete, perform or make payment for such
other matters as may be provided for herein.
8.Owner’s Expense
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 and except as set out in paragraph 19(2) hereof.
9.Authorizations - Lands Outside the Plan
The Owner, as agent of the City agrees to obtain written authorization from the abutting
landowners, satisfactory to the Director, to enter upon the abutting landowners lands to
complete the construction of the Lands in accordance with this Agreement.
10.Construction, Upgrading and Installation of City Works and Services (hereinafter
referred to as the “Works”)
(1)The Owner shall, at its expense:
(a)construct a road on the Lands upon:
(i)the City acquiring the lands needed to complete such construction; or
(ii)the parties agree to an interim timing arrangement in order to facilitate
the construction of the road
(b)make intersection improvements at Walnut Lane and Liverpool Road; and
(c)install all applicable services within the Lands in accordance with the
Drawings as per section 10(2) herein.
(2)The Owner agrees that such installation of services and construction of the Lands
shall be done in accordance with, or as shown on Drawings NT1, A01-A03, R01-
R07, PP01-PP08, D01-D08, TYP1-TYP2, PM01-PM07 and S1 dated December 9,
2022, prepared by WSP Canada Inc. as Project “Walnut Lane Extension to
Liverpool Road” as revised from time to time and approved by the Director (the
“Project”).
(3)If at any time prior to the acceptance of the Works, the Director, acting reasonably,
is of the opinion that additional works are necessary to provide adequately any of
the public services required by the Project as referenced in the Drawings set out
in paragraph 10(2) hereof, the Owner shall construct, install or perform such
additional works at the request of the Director.
(4)All Works shall be constructed and installed in accordance with the City's
specifications and in a good and workmanlike manner under the supervision of the
Owner's Consulting Engineer and under the observation of the City's inspectors.
(5)The Owner shall conduct video inspections of all underground services required to
be constructed or installed hereby and shall provide a DVD-format videotape
record of those inspections to the City.
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11.Authorization to Commence Work
The Owner shall not commence the construction or installation of any of the Works,
without the written Authorization to Commence Work of the Director, which Authorization
shall not be issued until any required approvals for the Works have been obtained and,
two copies of this Agreement executed by the Owner have been provided to the City to
the satisfaction of the Director;
(1)all monies, securities and insurance requirements, as noted in this Agreement,
have been delivered to the City to the satisfaction of the Director, Corporate
Services & Treasurer and the Director; and
(2)any required approvals and permits have been obtained by the Owner from the
appropriate agencies, and from every adjacent owner whose lands must be
entered upon in order to carry out such Works.
12.Consulting Engineers
(1)The Owner shall retain a Professional Engineer as the Consulting Engineer of the
Owner to carry out all the necessary engineering and to supervise the Works
required to be done pursuant to this Agreement.
(2)Such Consulting Engineer, or any successor thereto, shall continue to be retained
until the Works required to be done are 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 undertaking of such Works, so long as the Owner has a Consulting
Engineer retained at all times.
13.Performance and Maintenance Security
(1)Before this Agreement will be executed by the City and prior to commencing any
Works, the Owner shall file performance and maintenance security (the “Security”)
with the City. The Security shall be in the form of an irrevocable letter of credit
issued by a charted bank in Canada, a surety bond issued by a licenced insurer or
a certified cheque. The Security shall be in the amount of $7,566,824.00, plus HST
(the “Original Value”), and shall be held for the purpose of,
(a)guaranteeing the satisfactory construction, installation or performance of
the Works and performance of any other obligations of the Owner under this
Agreement;
(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 Act, as amended from time to
time;
(d)guaranteeing all Works, workmanship and materials during the
maintenance period and any rectification period or periods and until a Final
Acceptance Certificate has been issued by the Director, and
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(e)guaranteeing the keeping in force of adequate insurance throughout the
performance of the Works, including during the Maintenance Period and
any rectification period(s).
(2)The Owner may, at any time after the first 40 percent of the Original Value of the
Works have been constructed, installed or performed, and paid for, apply in writing
(ensuring reference to the registered plan number is made) for a reduction in the
Security corresponding to the extent to which the Works have been constructed,
and such application shall be made to the Director.
(3)Upon written verification from the Director that the construction, installation or
performance of the Works for which reduction is being sought have been
satisfactorily completed and paid for, the City’s Treasurer may reduce the amount
of the security to an amount not less than,
(a)60 percent of the Original Value where,
●no certificate or declaration of substantial performance has been made;
(b)35 percent of the Original Value where,
•a certificate or declaration of substantial performance has been
published;
•60 days following such publication have expired; and
•all liens that may be claimed against any holdback required to be
retained by the City have expired or have been satisfied, discharged or
provided for by payment into court;
and
(c)20 percent of the Original Value where,
•a certificate of final completion has been made by the Owner's
Consulting Engineer;
•60 days following the making of such certificate have expired;
all liens that may be claimed against any holdback required to be retained
by the City have expired or have been satisfied, discharged or provided for
by payment into court;
all payments required by this Agreement have been made in full; and
a Completion Acceptance Certificate has been issued by the Director,
which 20 percent portion shall secure the guarantee of Works, workmanship
and materials, until a Final Acceptance Certificate has been issued by the
Director, when the balance of the security shall be returned to the Owner
subject to any deductions for rectification of deficiencies.
(4)Upon the approval, if any, of a reduction in the amount of the security required to
be provided in subsection (1), the City’s Treasurer shall provide to the Owner any
necessary assurance to effect the reduction.
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(5)Notwithstanding any other provision contained in this Agreement, there shall be no
reduction in the security referred to herein where such a reduction would result in
the principal amount being less than:
(a)the aggregate total of 100% of the value of uncompleted Works and 20% of
the value of the completed Works; and
(b)the amount that would be required to keep adequate insurance in effect,
plus administration fees, until the issuance of a Final Acceptance Certificate
by the City.
14.Expiry of Securities
(1)Should the Security (if in the form of a letter of credit or surety bond) expire before
the City releases the Owner from the terms and conditions hereof, the Owner shall
provide the City with a minimum of 30 days written advance notice of the expiry
date and provide the City with a replacement Security to take effect on the same
date the Security is to expire.
(2)Such replacement Security shall be in a form and amount satisfactory to the City.
(3)Should no such further Security be provided as required, then the City shall have
the right to convert the expiring Security (if letter of credit or surety bond) into cash
and hold the cash in lieu of for the same purposes as the expiring Security.
15.Guarantee of Works, Workmanship and Materials
(1)The Owner shall guarantee all Works, workmanship and materials employed or
used in the construction, installation or completion of the Works, services and other
requirements under this Agreement for a minimum period of two years (the
"maintenance period") following the issuance of the Completion Acceptance
Certificate by the City.
(2)Despite any other provisions of this Agreement, the responsibilities of the Owner
during the maintenance period shall include the maintenance of the Works,
including the rectification of any unsatisfactorily installed Works.
(3)Prior to the end of the maintenance period, the Owner's Consulting Engineer shall
submit to the City, "as built" construction drawings for the Works completed as per
City standards, together with that Consulting Engineer's certificate that those
drawings accurately depict the Works as constructed.
(4)Prior to the end of the maintenance period, the City will re-inspect the Works and
if,
(a)the Works are acceptable; and
(b)the Owner has performed all of its obligations under the terms of this
Agreement to the satisfaction of the City,
the City will issue to the Owner a Final Acceptance Certificate at which time the
City will assume Ownership of the Works and the operation and maintenance
thereof, and the maintenance period will then end.
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16.Failure to Complete / Improper Performance
(1)If, in the opinion of the Director, the Owner is not constructing or installing the
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 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 Works rejected by the Director as defective or
unsuitable, or has in any other manner, in the opinion of the Director, defaulted in
the performance of the terms and conditions of this Agreement, then the Director
may notify the Owner and his surety in writing of the default or neglect and if the
notification be without effect for seven days, then the 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 Works or rectification of the default, at the cost and expense of
the Owner or his surety, or both.
(2)In cases of emergency, in the opinion of the Director, such Director may act without
prior notice but the Owner and its surety shall be notified forthwith.
(3)The cost of rectifying the default shall be calculated by the Director, whose decision
shall be final, and may be charged to the Owner, together with a 25 per cent
engineering and administration fee, by drawing upon the letter of credit filed with
the City pursuant to this Agreement.
17.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 (herein 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 Works and services
required pursuant to this Agreement safely and in compliance with the Act.
(2)In the performance of all Works and services required pursuant to this Agreement,
the Owners 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 W orks 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.
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(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)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 City 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 Works 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 Works or
service required pursuant to this Agreement, save where any such loss,
inconvenience, damage or cost to the City or where any action or claim or
costs related thereto are brought against the City as a result of the gross
negligence or willful misconduct of the City or any of its employees,
workmen, servants or agents.
18.Road Maintenance and Repair
(1)Throughout the term of this Agreement, the Owner shall,
(a)maintain all City roads outside the Project, including boulevards, 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;
(b)repair all City roads outside the Project, including boulevards, where
damage has occurred as a result of an operation or operations related in
any way to the development of the Project; and
(c)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)The Owner shall within 24 hours of verbal notification by the City to it or its
representatives, shall undertake such Works as are necessary to clean, clear or
repair any City road requiring such Works in the opinion of the Director and the
Director, Community Services or their designate.
19.Construction Cost Sharing
(1)Without limiting the generality of this Agreement, the Owner shall include among
the Works and services to be constructed and installed by it under this Agreement;
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(a)A road on the Lands as per City Standard (complete with all signs and other
appurtenances), including curbs and gutters, catch basins, sidewalks/multi-
use trail, boulevard excavation, grading and sodding, driveway entrances,
street lighting, storm sewer, and storm sewer connections within the Lands.
(2)Despite the provisions of this Agreement, the City shall pay to the Owner all of the
Owner’s costs and expenses of every nature and kind incurred for the purpose of
performing all of the construction and installation of the Works and all other
ancillary work related thereto as follows:
(a)to a maximum of $7,768,248.00 (the “Works Cost”) plus HST for the
design, contract administration, construction and installation of Walnut Lane
on, under, within and above the entirety of the Lands within 30 days of
receiving the Owner’s invoices therefor supported by appropriate progress
certifications and declarations. Payments shall be made by the City to the
Owner at three (3) points in time, namely: 1. Upon completion of the Works
to base asphalt and the delivery to the Director of a statutory declaration of
an officer of the Vendor declaring that the Works have been completed to
base asphalt and setting out the costs and expenses incurred by the Owner
to such time (with supporting invoices) (the “First Payment Date”); 2. Upon
completion of top asphalt and a certificate or declaration of substantial
performance under the Construction Act (Ontario) has been published (the
“Second Payment Date”) and the delivery by the Owner of a statement of
all costs and expenses incurred (with supporting invoices) by the Owner
from the First Payment Date to the Second Payment Date; and 3. The
balance upon issuance of a Final Acceptance Certificate by the City.
20.Insurance Requirements
(1)Before commencing any of the Works provided for herein, the Owner shall supply
the City with a certificate of insurance verifying that a liability insurance policy is in
place in a form satisfactory to the City, naming the City as an additional insured
and indemnifying the City from any loss arising from claims for damages, injury or
otherwise in connection with the Works done by or on behalf of the Owner on the
Lands.
(2)The policy shall,
(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)indicate “per occurrence”;
(d)refer to “products and completed operations” only; if the policy contains an
“aggregate amount”;
(e)contain a clause including blasting, if blasting is to occur; and
(f)remain in full force and effect until the Final Acceptance Certificate has been
issued by the City.
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(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 Final Acceptance Certificate
has been issued by the City.
(4)The Owner acknowledges that, the City may, at its discretion, draw upon the
Owner’s Letter of Credit to pay for:
(a)any failure by the Owner’s 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 Final Acceptance Certificate being issued by the City, 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.
21.Owner’s General Indemnity
Until the Director, Engineering Services has issued the Final Acceptance Certificate for
the Works, 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 directly or indirectly from the failure to
construct the 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, save and except where any such losses are caused by
the gross negligence or willful misconduct of the City or its employees, workmen, servants
or agents.
22.Establishing the Lands as a Public Highway
Upon the satisfactory completion of the upgraded and/or newly constructed portions of
the Lands, the City will prepare a by-law legally establishing the Lands as public highway.
23.Conveyance to be made to the City
(1)The Owner agrees that:
(a)immediately following the execution of this Agreement it will convey to the
City Parts 3, 4, 6, 11, 20, 23, 28, 30, 31, 35, 36, 37, 38 and 39 on Plan 40R⚫
for road purposes/easement purposes; and
(b)immediately following the release and abandonment of instrument no.
D218203 which is a right-of-way in favour of Dexleigh Corporation for
persons and vehicles over Parts 17, 18, 19, 25, 26, 33 and 34 on Plan
40R⚫, it will convey to:
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(i)the City Parts 15 and 19 on Plan 40R⚫; and
(ii)the Regional Municipality of Durham (the “Region”) Parts 17, 18,
21, 25, 26, 33 and 34 (the “Region Parts”) on Plan 40R⚫.
(c)the Owner shall concurrently with the transfer to the City of Parts 15 and 19
on Plan 40R⚫ register on title to the Region Parts a section 118 restriction
(the “Restriction”) under the Land Titles Act (Ontario), stating that there
shall be no transfer or charge of the Region Parts without the consent of the
Region. Any existing charges on title to the Region Parts shall be postponed
to the Restriction and the Restriction shall not be discharged until such time
as the Region Parts are transferred to the Region.
(2)Prior to the registration of the transfer of lands to the City as referenced in
paragraph 23(1)(a), the Owner’s Solicitor shall provide to the City:
(a)an undertaking that such a conveyance will be effected, free and clear of all
encumbrances, save for permitted encumbrances set out in Schedule “A”
hereto; and
(b)a certificate of clear title, save for permitted encumbrances set out in
Schedule “A” hereto, to the Lands being conveyed to the City, in favour of
the City, which certificate shall be prepared in a form acceptable to the
City’s Solicitor.
(3)The Owner hereby warrants that, upon such conveyance, neither the title to the
Lands conveyed nor their physical state and condition shall prevent the City from
lawfully or physically using the Lands for the purposes for which they are being
conveyed, save for permitted encumbrances set out in Schedule “A” hereto.
(4)Any Transfer/Deed given pursuant to this Agreement shall be in a form acceptable
to the City’s Solicitor.
(5)The City may complete or alter any description of land in this Agreement or in any
Transfer/Deed given pursuant to this Agreement so as to make the description
correspond with the description of the land according to the plan which is to be
registered pursuant to this Agreement.
(6)The Owner shall indemnify and save harmless the City from any loss,
inconvenience or damage which may result to the City from the Owner's failure to
comply with this Agreement and against any action or claim made against the City
by any person other than the Owner arising out of the execution by the City of this
Agreement, save and except where any such loss, inconvenience or damage are
caused by the gross negligence or willful misconduct of the City or its employees,
workmen, servants or agents.
(7)The Owner shall execute such further assurances of the rights hereby granted as
may be deemed necessary by the City.
(8)The City hereby grants to the Owner and its consultants, contractors, employees
and agents an irrevocable license and right in the nature of an easement to enter
upon that portion of the Lands then owned by the City in order to perform all of the
work required of the Owner pursuant to this Agreement.
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24.Utility / Services
The Owner agrees that the cost of any relocation, extension, alteration or extraordinary
maintenance of existing services necessitated by this development shall be the
responsibility of the Owner.
25.No Registration
This Agreement shall not be registered on title to the Lands or any other lands of the
Owner.
26.Counterparts
This Agreement may be executed in any number of counterparts, each of which shall be
deemed an original and all of which taken together shall be deemed to constitute one and
the same document. The execution of this Agreement will not become effective until
counterparts hereof have been executed by all the parties hereto. Counterparts may be
executed either in original or electronic form and the parties adopt any signatures
received in electronic form as original signatures of the parties.
In Witness Whereof the Owner and the City have duly executed this Agreement as of the date
first written above.
Tribute (Liverpool) Limited
_____________________________
Name:
Title:
_____________________________
Name:
Title:
I/We have the authority to bind the Corporation.
The Corporation of the City of Pickering
_____________________________
Name:
Title:
_____________________________
Name:
Title:
I/We have the authority to bind the Corporation.
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Schedule “A”
PERMITTED ENCUMBRANCES
Engineering Services
Department
DATE:
N.T.S. April 25 /2017
Location Map
ENG 05-23 -ot,o/·P1CKER1NG
Attachment #3 to Report ENG 05-23