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HomeMy WebLinkAboutLEG 09-20 Report to Council Report Number: LEG 09-20 Date: September 28, 2020 From: Paul Bigioni Director, Corporate Services & City Solicitor Subject: Indemnification Agreements -Construction of Median on Brock Road, Duffin Heights -File: L-4100-002-20 Recommendation: 1.That the attached Indemnification Agreement between Duffin’s Point Inc., The Corporation of the City of Pickering, and The Regional Municipality of Durham be approved (Attachment No. 1 to this Report); 2.That the attached Indemnification Agreement between Duffin’s Point Inc. and The Corporation of the City of Pickering be approved (Attachment No. 2 to this Report); 3.That the Mayor and City Clerk be authorized to execute said Indemnification Agreement s, subject to minor revisions agreeable to the Director, Corporate Services & City Solicitor; and 4.That the appropriate City of Pickering officials be authorized to take the necessary actions as indicated in this Report. Executive Summary: Attachment No. 3 is a Location Map showing Brock Road between Palmer’s Sawmill Road and Third Concession Road. The Region of Durham has determined that current traffic flow does not justify construction of an extension of the existing median. Duffin’s Point Inc. is developing the adjacent property at 2460 Br ock Road, and has offered to construct the median extension at its own expense. The Region will allow this, provided that the City indemnifies the Region in respect of liabilities that may arise from the extension of the median. Duffins Point Inc. is willing to indemnify the City in turn, so that the City is not responsible for any such liabilities. The attached indemnification Agreements will enable construction of the median extension while protecting the City from any liabilities arising therefrom. Financial Implications: There are no direct financial obligations arising from this Report. Under the terms of the Regional Indemnification Agreement, the City agrees to indemnify the Region of Durham in respect of any liabilities associated with the construction of the extension of the median. Under the terms of the City Indemnification Agreement, Duffin’s Point Inc. agrees to completely cover any liability to which the City may be exposed under the Regional Indemnification Agreement. LEG 09-20 September 28, 2020 Subject: Construction of Median on Brock Road, Duffin Heights Page 2 Discussion: Attachment No. 3 is a Location Map showing Brock Road between Palmer’s Sawmill Road and Third Concession Road. The Region of Durham has determined that current traffic flow does not justify construction of an extension of the existing median. Duffin’s Point Inc. is developing a commercial development on Brock Road within the vicinity of this location, being 2460 Brock Road. Duffin’s Point Inc. has requested a right in and right out access point on Brock Road which is supported by City staff on the basis that it will enhance safety by managing traffic flow on Brock Road. To facilitate this request, the Region of Durham requires that a median be extended in front of 2460 Brock Road 25 metres beyond the proposed right in and right out access to ensure safe operations at that location. Duffin’s Point Inc. has agreed to construct at its own cost the extension of the median for the Region of Durham. The location of the median extension is identified in the Attachment No. 3. The median extension will be built by Duffin’s Point Inc. pursuant to the terms of an Indemnification Agreement between Duffin’s Point Inc., The Corporation of the City of Pickering, and The Regional Municipality of Durham (the “Regional Indemnification Agreement”). The draft Regional Indemnification Agreement is Attachment No. 1 to this Report. The Region will not allow the median to be extended without the Regional Indemnification Agreement. Under the terms of the Regional Indemnification Agreement, the City agrees to indemnify the Region of Durham in respect of any liabilities associated with the construction of the median extension. The City’s liability under the Regional Indemnification Agreement will then be passed on to Duffin’s Point Inc. pursuant to an Indemnification Agreement between Duff in’s Point Inc. and The Corporation of the City of Pickering (the “City Indemnification Agreement”). The draft City Indemnification Agreement is Attachment No. 2 to this Report. The Regional Indemnification Agreement and the City Indemnification Agreemen t have been negotiated by City staff to enable construction of the extension of the median. Both Indemnification Agreements are in acceptable form, and City staff recommend that they be approved by the City and executed, so that construction of the median can proceed. Attachments: 1.Draft Regional Indemnification Agreement. 2.Draft City Indemnification Agreement. 3.Location Map of the proposed median. Prepared By: Approved/Endorsed By: Candace Tashos, B.A. (Hons.), M.A., J.D. Paul Bigioni Assistant Solicitor Director, Corporate Services & City Solicitor LEG 09-20 September 28, 2020 Subject: Construction of Median on Brock Road, Duffin Heights Page 3 CT:ks Recommended for the consideration of Pickering City Council Marisa Carpino, M.A. Interim Chief Administrative Officer INDEMNIFICATION AGREEMENT as Schedule “D” to Servicing Agreement between the Region of Durham and Duffin’s Point Inc. dated October 16, 2018 This Agreement dated June ___, 2020 is made B E T W E E N: DUFFIN’S POINT INC. (“Duffin’s Point”) -and- THE CORPORATION OF THE CITY OF PICKERING ( the "City“) -and - THE REGIONAL MUNICIPALITY OF DURHAM (the “Region”) RECITALS WHEREAS: (a)Duffin’s Point is developing a commercial development on Brock Road, in the City of Pickering at the municipal address located at 2460 Brock Road (the “Duffin’s Point Development”); (b)Duffin’s Point has requested a right in and right out access point on Brock Road which is supported by the City; (c)The Region requires that a median be extended in front of the Duffin’s Point Development 25 metres beyond the Duffin’s Point Development’s proposed right in and right out access to ensure safe operations at the location (the “Works”). Duffin’s Point will complete this construction for the Region through the existing servicing agreement with the Region, dated October 16, 2018 between the Region and Duffin’s Point; (d)The extension of the median on and around Brock Road and in the vicinity of the Duffin’s Point Development is being built pursuant to the terms of this Agreement at the request of the City; and (e)The City will indemnify the Region subject to the terms and conditions contained in this Agreement. NOW THEREFORE Duffin’s Point, the City and the Region agree as follows: Attachment 1 to Report LEG 09-20 INTERPRETATION Definitions 1. In this Agreement and in the recitals above, (a) “Agreement” means this indemnification agreement; (b) “Duffin’s Point Development” means Duffin’s Point Development located at the municipal address known as 2460 Brock Road; in the City of Pickering, in the Regional Municipality of Durham; (c) “City” means The Corporation of the City of Pickering; (d) “Region” means The Regional Municipality of Durham acting as a body corporate and, where the context requires, includes all employees, officers, servants and agents of The Regional Municipality of Durh am. Schedules 2. The following Schedules are attached to and form part of this Agreement: Schedule A: Map of the proposed drawing of the Works to be constructed References 3. References in this Agreement to Sections and Schedules are to Sections and Schedules in this Agreement. Extended Meanings 4. This Agreement shall be read with all changes in gender or number as the context may require. Duffin’s Point to Construct the Works and their expense 5. Duffin’s Point shall construct the Works on behalf of the Region and shall also be responsible for all costs associated with the construction of the Works through the existing servicing agreement with the Region, dated October 16, 2018. Every provision of this Agreement by which Duffin’s Point is obligated in any way shall be deemed to include the words "Duffin’s Point constructing the Works at the expense of Duffin’s Point for the Region " unless the context otherwise requires. Indemnification 6. The City shall indemnify and save harmless the Region 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 from and that would be a consequence of entering into this Agreement and completing the proposed Works as defined in this Agreement, on the part of the Region and whether such losses are sustained by the Region, or their employees, workmen, servants, agents or councillors or any other person or corporation for the construction of the Works as defined in this Agreement, an exception to the indemnity being if any such losses, damages, costs, expenses, claims, demands and actions result from the Region’s negligence. OTHER MATTERS Notices 7. (1)(a) Any notice to Duffin’s Point shall be in writing and shall be delivered to the following address: Attention: Michael Brown 9140 Leslie Street, suite 210 Richmond Hill, ON, L4B 0A9 Fax No.: 905-762-9202 Email: michael@oxnarddevelopments.com (1)(b) Any notice to the City shall be in writing and shall be delivered to the following address: One The Esplanade, Pickering, ON L1V 6K7 Attention: City Clerk Telephone: 905.420.4660 Fax No.: 905.420.9685 (1)(c) Any notice to the Region shall be in writing and shall be delivered to the following address: 605 Rossland Road East, Level 5, Whitby, ON L1N 6A3 Attention: Commissioner of Works Telephone: 905-668-77111 Fax No.: 905-668-7494 (2) Notice shall be sufficiently given if, (a) delivered in person; (b) sent by registered mail; or (c) sent by facsimile transmission during normal business hours on a business day. (3) Each notice sent shall be deemed to have been received, (a) on the day it was delivered; (b) on the third business day after it was mailed (excluding each business day during which there existed any general interrupt ion of postal services due to strike, lockout or other cause); or (c) on the same day that it was sent by facsimile transmission or on the first business day thereafter if the day on which it was sent by facsimile transmission was not a business day. (d) the owners may change its address for notice by giving notice to the Region’s Commissioner of Works in the manner provided in this Section. Successors and Assigns 8. This Agreement shall enure to the benefit of and shall be binding upon the parties hereto and their respective heirs, executors, administrators, successors and assigns. Recitals 9. The Recitals contained in this agreement are true and correct and are legally binding and form a true part of this Agreement. IN WITNESS WHEREOF the parties have executed this Agreement. DUFFIN’S POINT INC. 2020/ / Name: Title: 2020/ / Name: Title: I/We have authority to bind the Corporation THE CORPORATION OF THE CITY OF PICKERING. 2020/ / Kevin Ashe, Deputy Mayor 2020/ / Susan Cassel, City Clerk THE REGIONAL MUNICIPALITY OF DURHAM 2020/ / John Henry, Regional Chair and CEO 2020/ / Ralph Walton, Regional Clerk Schedule A Map of Proposed Drawing of Works to be Constructed 1 INDEMNIFICATION AGREEMENT This Agreement dated June ___, 2020 is made B E T W E E N: DUFFIN’S POINT INC. (“Duffin’s Point”) -and- THE CORPORATION OF THE CITY OF PICKERING (the "City“) RECITALS WHEREAS: (a)Duffin’s Point is developing a commercial development on Brock Road, in the City of Pickering at the municipal address located at 2460 Brock Road (the “Duffin’s Point Development”); (b)Duffin’s Point has agreed to complete construction of an extension of a median in front of the Duffin’s Point Development to facilitate right in and right out access at the location (the “Works”) in accordance with an Indemnification Agreement dated June ___, 2020 between the City, The Regional Municipal of Durham (the “Region”) and Duffin’s Point attached hereto as Schedule A (the “Regional Agreement”); and (c)Duffin’s Point will indemnify the City for exposure to cost consequences resulting from any claims the City may be exposed to by the Region arising from the Regional Agreement and the construction of the Works. NOW THEREFORE Duffin’s Point and the City agree as follows: INTERPRETATION Schedules 1.The following Schedules are attached to and form part of this Agreement: Schedule A: Regional Agreement. References 2.References in this Agreement to Sections and Schedules are to Sections and Schedules in this Agreement. Extended Meanings 3.This Agreement shall be read with all changes in gender or number as the context may require. Attachment 2 to Report LEG 09-20 2 Indemnification 4. Duffin’s Point shall indemnify and save harmless the City from all losses, damages, costs, liabilities, expenses, claims, demands and actions of every nature and kind whatsoever including death or injury (collectively referred to as “losses”) that the City may suffer, sustain, pay or incur by reason of any claim made against the City by the Region arising from the Regional Agreement and the construction of the Works, save and except any losses arising from: (a) any claim made against the City by any or all of Concetto Pistritto, Enrico Pistritto, Mario Pistritto, or Paolo Pistritto, for which the City is liable to the extent that such claim arises out of the Regional Agreement or the construction of the Works, and is not a result of the negligence of Duffin’s Point; and (b) the City’s negligence. OTHER MATTERS Notices 5. (1)(a) Any notice to Duffin’s Point shall be in writing and shall be delivered to the following address: Attention: Michael Brown Address: 9140 Leslie St., Suite 210, Richmond Hill, ON L4B 0A9 Fax No.: 905.762.9202 Email: michael@oxnarddevelopments.com (1)(b) Any notice to the City shall be in writing and shall be delivered to the following address: One The Esplanade, Pickering, ON L1V 6K7 Attention: City Clerk Telephone: 905.420.4660 Fax No.: 905.420.9685 (2) Notice shall be sufficiently given if, (a) delivered in person; (b) sent by registered mail; or (c) sent by facsimile transmission during normal business hours on a business day. (3) Each notice sent shall be deemed to have been received, (a) on the day it was delivered; (b) 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) on the same day that it was sent by facsimile transmission or on the first business day thereafter if the day on which it was sent by facsimile transmission was not a business day. (d) Duffin’s Point may change its address for notice by giving notice to the City in the manner provided in this Section. 3 Successors and Assigns 6. This Agreement shall enure to the benefit of and shall be binding upon the parties hereto and their respective heirs, executors, administrators, successors and assigns. Recitals 7. The Recitals contained in this agreement are true and correct and are legally binding and form a true part of this Agreement. IN WITNESS WHEREOF the parties have executed this Agreement. DUFFIN’S POINT INC. Name: Title: Name: Title: I/We have authority to bind the Corporation THE CORPORATION OF THE CITY OF PICKERING. Kevin Ashe, Deputy Mayor Susan Cassel, City Clerk 4 Schedule A Regional Agreement [to be inserted] Formatted: Centered Formatted: Centered ConacherCre sce ntM aple Hill C o urtFourSeasonsLaneTillings RoadThird Conc e ssi o n Ro a d Palmer's Sawmill Road Cl e a r si d e CourtRossland Road WBrockRoad 1:4,000 SCALE: © The Corporation of the City of Pickering Produced (in part) under license from: © Queens Printer, Ontario Ministry of Natural Resources. All rights reserved.;© Her Majesty the Queen in Right of Canada, Department of Natural Resources. All rights reserved.; © Teranet Enterprises Inc. and its suppliers all rights reserved.; © Municipal Property Assessment Corporation and its suppliers all rights reserved.; City Development Department Location Map Property Description:Part of Lot 19, Concession 3, Now Part 1 and 2, THIS IS NOT A PLAN OF SURVEY. Date: Sep. 17, 2020 2460 Brock Road 40R-28460 L:\PLANNING\01-MapFiles\Legal\2020\Duffins Point Developments.mxd Project Name:Duffin's Point Development 2460 Brock RoadInset Map See Inset MapRoad Median Extension E(2460 Brock Road) Scale 1:1,500 Attachment 3 to Report LEG 09-20