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HomeMy WebLinkAboutSUS 02-24Report to Executive Committee Report Number: SUS 02-24 Date: March 4, 2024 From: Kyle Bentley Director, City Development & CBO Subject: Termination of Whitby Green Standard Demonstration Project -Termination Agreement and Release-File: D-7001-022 Recommendation: 1.That Report SUS 02-24, regarding the termination of the Whitby Green StandardDemonstration Project, be received; and 2. That the Mayor and City Clerk be authorized to execute a Termination Agreement andRelease between the Town of Whitby, City of Pickering, Region of Durham, Mattamy Development Corporation, and Clean Air Partnership, as set out in Attachment 1 of this report, subject to the terms and conditions satisfactory to Director, City Development &CBO, and Director, Corporate Services & City Solicitor. Executive Summary: In December 2022, through Report PLN 46-22, Council authorized the Mayor and City Clerk to execute a Memorandum of Understanding between the Town of Whitby, City of Pickering, Region of Durham, Mattamy Development Corporation, and Clean Air Partnership for the Whitby Green Standard Demonstration Project (Resolution #33/22). The purpose of this report is to inform Council that the Whitby Green Standard Demonstration Project will not be moving forward. The focus of the project was to measure the costs and benefits of integrating the three voluntary tiers of the Whitby Green Development Standards at the design, construction, and occupancy stages, for low-rise residential development. The Town of Whitby was the lead on this project. The City of Pickering contribution was through in-kind staff support, not funding. Due to factors beyond the control of the Town of Whitby and Mattamy, the project will no longer be proceeding. The Town of Whitby staff prepared the attached Termination Agreement Release, which was reviewed by the City of Pickering’s Legal Services, and City staff are seeking Council approval to execute. Relationship to the Pickering Strategic Plan: The recommendations in this report respond to the Pickering Strategic Plan Priority of Good Governance. Financial Implications: Not applicable to this report SUS 02-24 March 4, 2024 Subject: Termination of Whitby Green Standard Demonstration Project Page 2 Discussion: In December 2022, the City of Pickering entered into a Memorandum of Understanding (MOU) between the Town of Whitby, City of Pickering, Region of Durham, Mattamy Development Corporation, and Clean Air Partnership for the Whitby Green Standard Demonstration Project (Resolution #33/22). The purpose of this report is to inform City of Pickering Council that the Whitby Green Standard Demonstration Project will not be moving forward and to seek Council’s approval to execute the Termination Agreement and Release. The project partners initiated the Whitby Green Standard Demonstration Project to measure the costs and benefits of integrating the three voluntary tiers of Whitby’s green standard at the design, construction, and occupancy stages for developing three to six low-rise residential homes. When the project was proposed, construction of the subject developments was going to occur in 2023 and 2024. Due to a number of unforeseen issues, the anticipated construction date for the subject developments has been updated to 2028, reducing the value of the project. In addition, since the time this project was first proposed, Mattamy has advanced their corporate sustainability commitments. As such, all homes within the subject developments will be built to a more advanced sustainability performance measure. With unexpected delays in the construction of the demonstration houses and considering that both of Mattamy’s developments will be built to advanced sustainability measures, Whitby staff have concluded it is not the best use of time and resources to move forward with this project. The City of Pickering was not a funding partner, and its contribution was limited to in-kind staff support only. Whitby staff prepared the attached Termination Agreement and Release. The document was reviewed by City of Pickering Legal Services, and staff are seeking Council’s authorization to execute. Attachment: 1. Termination Agreement and Release SUS 02-24 March 4, 2024 Subject: Termination of Whitby Green Standard Demonstration Project Page 3 Prepared By: Original Signed By Chantal Whitaker, BESc (Hons), CSP-P Manager, Sustainability & Strategic Environmental Initiatives Approved/Endorsed By: Original Signed By Kyle Bentley, P.Eng. Director, City Development & CBO CW:ld Recommended for the consideration of Pickering City Council Original Signed By Marisa Carpino, M.A. Chief Administrative Officer 1 of 6 Attachment 1 to Report SUS 02-24 TERMINATION AGREEMENT AND RELEASE B E T W E E N: THE CORPORATION OF THE TOWN OF WHITBY (“Whitby”) -and - MATTAMY DEVELOPMENT COPORATION (“Mattamy”) -and - THE REGIONAL MUNICIPALITY OF DURHAM (“Durham”) -and - THE CITY OF PICKERING (“Pickering”) -and - CLEAN AIR PARTNERSHIP (“CAP”) INTRODUCTION 1.In 2020, Whitby approved a tiered Green Development Standard (the “Whitby Green Standard” or “WGS”) to increase the uptake of sustainable design criteria in new development, with a focus on low-rise development (available here www.whitby.ca/greenstandard). 2.Whitby, Mattamy, Durham, Pickering, and CAP (collectively, the “Parties” or individually a “Party”) agreed, by Memorandum of Understanding for the Whitby Green Standard Demonstration Project (the “MOU”), to collaborate on a demonstration project that measures the costs and benefits of integrating the three voluntary tiers (Tiers 2-4 of the WGS) of Green Development Standards at the design, construction and occupancy stages of low-rise residential development (the “Project”). 3.For reasons beyond the control of the Parties, or any one of them individually, the Project will not be proceeding and it has been determined that the MOU will be terminated. 2 of 6 4. Durham provided payment in the amount of $10,000.00 to Whitby in connection with the Project. Whitby has refunded this amount to Durham and a separate Termination Agreement and Release was executed as between Durham and Whitby. TERMINATION 5. The MOU is hereby terminated by the mutual agreement of the Parties. The Parties shall have no further obligations to one another and shall no longer be required to comply with the terms of the MOU, save and except as noted below. The termination of the MOU shall be effective as of the date of execution of this Termination Agreement and Release. SURVIVING TERMS 6. The obligations as relating to Confidential Information as set out in Paragraph 16 of the MOU, Contractual Liability as set out in Paragraph 24 of the MOU and Indemnification as set out in Paragraph 25 of the MOU shall continue to apply notwithstanding the termination of the MOU. 7. Further to the above term, the Parties hereby represent, warrant and agree that no Party has any claim against another Party arising out of or in connection with the MOU. RELEASE 8. In consideration of the terms as set out in this Termination Agreement and Release, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, including their elected and appointed officials, heirs, trustees, beneficiaries, executors, administrators, legal or personal representatives, officers, directors, shareholders, employees, agents, insurers, predecessors, successors and assigns do hereby release and forever discharge one another from any and all actions, causes of action, applications, debts, dues, accounts, bonds, covenants, contracts, complaints, obligations, duties, breaches of contract, breaches of duty or any relationship, acts, omissions, compensations, promises, damages, costs, losses, expenses, claims for interest or disbursements, remedies for losses, choses in action, entitlements, liabilities, demands, rights of indemnity and all other claims and rights (the 3 of 6 "Claims"), which any of the parties had, has, or may have in the future out of or in any way related to the MOU. 9.The Parties agree to bear their own costs incurred in relation to any of the matters to which this Termination Agreement and Release applies or in relation to any of the matters with respect to which the Patries agree herein not to make any claim or take any proceeding. 10.The Parties covenant and agree not to make or publish any disparaging statements, whether written or oral, regarding each other. 11.The Parties agree to keep the terms of this Termination Agreement and Release, as well as all discussions leading to the execution of this Termination Agreement and Release strictly confidential, except where such disclosure is required by law or to provide necessary disclosure to financial or legal advisors. If such disclosure is required, the Parties will take all reasonable steps to have the confidentiality of the information maintained to al other purposes by any person or entity to whom the required disclosure is made. 12.The Parties agree that in the event that any party should hereafter commence any proceedings involving Claims against any other Party, or any third party, relating to matters dealt with in this Termination Agreement and Release, this document may be raised as an estoppel to any such Claims in the proceedings by any of the Parties. 13.The Parties agree that for the aforesaid consideration, the parties represent and warrant that they have not assigned or transferred, or purported to assign or transfer, to any person, partnership, corporation, or other such entity, any of the Claims released above, nor any of the matters about which it agrees herein not to make any claim or take any proceedings. 14.The Parties agree that the aforesaid consideration is deemed to be no admission of liability on the part of any Party and that any such liability is expressly denied. FEES AND COSTS 15. The Parties shall be responsible for their own fees and costs incurred in connection with the MOU, any other agreement or transaction related to the Project, and for any fees or commissions payable to any person it has retained in respect of the Project and this Termination Agreement and Release. 4 of 6 GOVERNING LAW 16.This Termination Agreement and Release shall be governed by and construed in accordance with the applicable laws of the Province of Ontario and Canada. COUNTERPARTS 17.This Termination Agreement and Release may be executed in two or more counterparts (including counterparts signed or delivered electronically), each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. ACKNOWLEDGEMENT 18.The Parties acknowledge that they are entering into this Termination Agreement and Release freely and voluntarily and without undue influence or duress. The Parties further acknowledge that they have been given sufficient time to seek legal advice with respect to this matter and the terms of this Termination Agreement and Release as they consider appropriate. The Parties voluntarily accept the terms of this Termination Agreement and Release for the purpose of making full and final compromise, adjustment and settlement of fall Claims as set out above. The parties further acknowledge that, other than the consideration promised herein, no representation of fact or opinion, threat or inducement has been made or given by any Party to induce the signing of this Termination Agreement and Release. SIGNATURES Executed by Whitby this ______ day of __________________, 2024. THE CORPORATION OF THE TOWN OF WHITBY Matthew Gaskell, Chief Administrative Officer Fuwing Wong, Commissioner of Financial Services / Treasurer We have authority to bind the corporation. 5 of 6 Executed by Durham this ______ day of __________________, 2024. THE REGIONAL MUNICIPALITY OF DURHAM Elaine Baxter-Trahair, Chief Administrative Officer I have authority to bind the corporation. Executed by Mattamy this ______ day of __________________, 2024. MATTAMY DEVELOPMENT COPORATION Andrew Sjogren, Senior Vice President I have authority to bind the corporation. Executed by Pickering this ______ day of __________________, 2024. THE CITY OF PICKERING Kevin Ashe, Mayor Susan Cassel, Clerk We have authority to bind the corporation. 6 of 6 Executed by CAP this ______ day of __________________, 2024. CLEAN AIR PARTNERSHIP Gabriella Kalapos, Executive Director I have authority to bind the corporation.