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HomeMy WebLinkAboutBy-law 4185/93 THE CORPORATION OF THE TOWN OF PICKERING BY-LAW NO. 4185/93 Being a by-law to authorize the exercise of an option to acquire lands, the acquisition of lands ami the execution of a Servicing Agreement respecting the construction of {2uartz Street (part Lot 18, Concession 1, Picketing; 802226 Ontario Limited/Ever Green Services Inc.; S35/88 R(92)). WHEREAS the operation of the proposed Can-Son Recycling project on that part of Lot 18, Concession 1, Pickering, designated as Parts 6, 7, 8, 12 and 13, Plan 40R-10635, requires access to a public roadway, to be known as Quartz Street, on that part of Lot 18, Concession 1, Picketing, designated as Parts 7 and 8, Plan 40R-3890 and Parts 14 and 15, Plan 40R-10635, which roadway the adjacent benefitting land-owner (802226 Ontario Limited) and the company developing the Can-Sort Recycling project (Ever Green Services Inc.) are prepared to construct at no cost to the Town and to enter into a Servicing Agreement with the Town pursuant to the Municipal Act, R.S.O. 1990, chapter M.45, sections 263 and 284, respecting the construction thereof; and WHEREAS the construction of that roadway will require the acquisition of that part of Lot 18, Concession 1, Picketing, designated as Parts 14 and 15, Plan 40R-10635, which the Town has an option to purchase, free and clear of any mortgage, lien or any other encumbrance, until June 3, 2006 at the purchase price of $2.00, for road purposes (pursuant to Instrument No. D267006, registered December 3, 1987); and WHEREAS, pursuant to the provisions of the Municipal Act, R.S.O. 1990, chapter 302, section 193(1), the Council of The Corporation of the Town of Pickering may pass by-laws for acquiring lands for the purposes of the corporation; NOW THEREFORE, the Council of The Corporation of the Town of Picketing HEREBY ENACTS AS FOLLOWS: [. (1) The Corporation of the Town o,f Pickering shall exercise its option to purchase that part of Lot 18, Concession 1, Pickermg, designated as Parts 14 and 15, Plan 40R-10635, free and clear of any mortgage, lien or any other encumbrance, at the purchase price of $2.00, for road purposes (pursuant to the agreement dated October 20, 1987, between Tilcor Investment Company Limited and The Corporation of the Town of Picketing, a copy of which was registered December 3, 1987 as Instrument No. D267006). (2) The Corporation of the Town of Picketing shall acquire that part of Lot 18, Concession I, Picketing, designated as Parts 14 and 15, Plan 40R-10635, free and clear of any mortgage, lien or any other encumbrance, at the purchase price of $2.00, for road purposes, in accordance with the agreement dated October 20, 1987, between Tilcor Investment Company Limited and The Corporation of the Town of Picketing, a copy of which was registered December 3, 1987 as Instrument No. D267006, and in accordance with section 3 of the Servicing Agreement attached hereto as Schedule A, subject to the terms and conditions set out therein. (3) The Mayor and Clerk are hereby authorized to execute whatever documentation may be necessmy to effect the exercise of the option to purchase and the acquisition by The Corporation of the Town of Picketing. 2. The Mayor and Clerk are hereby authorized to execute a Servicing Agreement, in the form attached hereto as Schedule A, between 802226 Ontario Limited, Ever Green Services Inc. and The Corporation of the Town of Picketing, respecting the construction of roadway, to be known as Quartz Street, on that pan of Lot 18, Concession 1, Picketing, designated as Pans 7 and 8, Plan 40R-3890 and Pans 14 and 15, Plan 40R-10635. BY-LAW read a first, second and third time and Finally passed this 22nd day of March 1993. TOWN ~ ~' PICKERINQ AS TO LEGAL. DEP'[: j --- SCHEDULE A THIS SERVICING AGREEMENT made March 22, 1993, BETWEEN: 802226 ONTARIO LLM1TED and EVER GREEN SERVICES INC., herein collectively called the "Owners", OF THE FIRST PART. THE CORPORATION OF THE TOWN OF PICKERING, herein called the "Town", OF THE SECOND PART. WHEREAS the Town is the owner of the non-maintained road allowance (to be named Quartz Street) described as that part of Lot 18, Concession 1, Picketing, designated as Parts 7 and 8, Plan 40R-3890, which the Owners wish to use to gain access to their lands; and WHEREAS 802226 Ontario Limited is the owner of that part of Lot 18, Concession 1, Pickering, designated as Parts 14 and 15, Plan 40R-10635, which the Town has an option to purchase, free and clear of any mortgage, lien or any other encumbrance, until June 3, 2006 at the purchase price of $2.00, for road purposes (pursuant to Instrument No. D267006, registered December 3, 1987), and which will extend Quartz Street easterly to A CNR spur railway line and which the Owners also wish to use to gain access to their lands; and WHEREAS the Owners have agreed to construct a roadway on Quartz Street (as extended) to the Town's specifications and at no cost to the Town, to enable the Owners to gain such access; and WHEREAS the Town has agreed to open Quartz Street upon completion of such construction at no cost to the Town, and to assume it for maintenance purposes; NOW THEREFORE THIS AGREEMENT W1TNESSETH THAT, in consideration of the sum of $2.00 now paid by each Party to the other, receipt of which by each is hereby acknowledged, the Parties hereto agree as follows: 1. The lands affected by this Agreement {herein called the "Lands"), and the lands against the title to which the Parties hereto agree that this Agreement shall be registered, are those parts of Lot 18, Concession 1, Pickering, designated as Parts 6, 7, 8, 12, 13 and 16, Plan 40R-10635. 2. (l) If this Agreement is not registered on title to the Lands on or before April 2, 1993, this Agreement shall be null and void and of no further effect, and the Town shall not be liable for any expenses, costs or damages suffered by the Owner as a result thereof. (2) This Agreement is entered into and executed by the Owners for the purpose of having the Town act in reliance on the covenants by the Owner contained herein and the Owners hereby waive any right or claim which they have or either of them has now or may hereinafter acquire which is inconsistent with the terms of this Agreement. 3. (1) On or before April 30, 1993, 802226 Ontario Limited shall convey to the Town that part of Lot 18, Concession 1, Picketing, designated as Parts 14 and 15, Plan 40R-10635, free and clear of any mortgage, lien or any other encumbrance, for the price of $2,00 for mad purposes (pursuant to the agreement, herein called the "Option", dated October 20, 1987 between Tilcor Investment Company Limited, a predecessor in title to 802226 Ontario Limited, and the Town, which Option was registered December 3, 1987, as Instrument No. D267006). (2) Despite the provisions of section 6 of the Option, the entering into of this Agreement shall constitute full and sufficient notice to 802226 Ontario Lhnited of the Town's wish to exercise its option to purchase that part of Lot 18, Concession 1, Picketing, designated as Parts 14 and 15, Plan 40R-10635, and no further notice or request shall be required. 4. (1) The Owners shall, at their sole expense and within one year after the date hereof, construct in a good and workmanlike manner a roadway (herein called the "Roadway") from the travelled portion of Toy Avenue, along that part of Lot 18, Concession 1, Picketing, designated as Parts 7 and 8, Plan 40R-3890, and Parts 14 and 15, Plan 40R-10635 to the east limit of Parts 14 and 15, Plan 40R-10635 (herein called "Quartz Street"). (2) The construction of the Roadway shall include the construction, installation and provision of all works, services, materials and things shown or described on SW-I, dated February 2, 1993, prepared by G. D. Xiggoros & Associates Ltd., Consulting Engineers, as Project No. 92-127, as revised from time to time and approved by the Town's Director of Public Works (herein called the "Director"), including but not necessarily limited to excavation, imported fRI, granular "B" material, granular "A" material, asphalt courses, boulevards, ditches, driveways, barricade and street lighting. (3) Despite any other provision of this Agreement, neither the Owners nor theft employees, agents, contractors, subcontractors and workmen shalI commence any work hereunder or associated herewith until the Owners or their consulting engineer has obtained and filed with the Director, (a) a Class Environmental Assessment for Municipal Road Project approval or exemption issued by the provincial Ministry of the Environmem; (b) any permit or other approval requited from the Metropolitan Toronto and Region Conservation Authority; and (c) any permit or other approval required from the provincial Ministry of Transportation. (4) All works, services, materials and things required to be constructed, installed or provided by the Owners shall be constructed, installed or provided under the observation of inspectors employed by the Town and the Owners shall pay the costs incurred therefor within 30 days of invoices being rendered by the Town to them. (5) The costs referred to in subsection (4) may include, but not necessarily be limited to, salaries and wages of inspectors, testing fees and administration fees. 5, For the purposes of the construction, installation and provision of all works, services, materials and things required hereunder and of otherwise complying herewith, the Town hereby grants permission to the Owners, their employees, agents, contractors, subcontractors and workmen, to enter upon Toy Avenue and upon Quartz Street, provided however that, (a) all approvals, exemptions, permits and permissions referred to in subsection 4(3) have been obtained and filed with the Director; (b) the certificate of insurance referred to in subsection 6(1) has been supplied to the Town and the liability insurance policy is in place; (c) the performance and maintenance security referred to in subsection 7(1) has been supplied to the Town and is in effect. 6. (1) Before commencing any of the work provided for herein, the Owners shall Erie with the Town a Certificate of Insurance verifying that a Liability Insurance Policy is in effect, setting out the essential terms and conditions of the insurance, and naming the Town as additional named insured, all of which shall be subject to the approval of the Town Solicitor. (2) The policy shall comply with the following provisions: (a) the minimum limit per occurrence shall be $5,000,000 all inclusive for property damage and personal liability; (b) it shall not contain a clause for exclusion for blasting; and (c) it may not be cancelled unless prior notice by registered letter has been given to the Town by the insurer thh'~y days h~ adva~ce of the expiyy date. 2 (3) The policy premium must be paid initially for a period of one year and the policy shall be renewed for further one year periods until a Final Acceptance Certificate has been issued by the Director. (4) If the policy coverage is subject to a deductible amount, the Owners shall file with the Town, when filing the Certificate of Insurance, a certified cheque or letter of credit with the Town in the deductible amount, as a deposit, together with a letter from the Owners authorizing the Town to appoint an independent adjuster and to investigate claims less than the deductible amount and authorizing the Town to pay such claims deemed valid by the adjuster out of the deposit; the Owners shall be responsible for all adjustment service costs and shall maintain the deposit throughout the term of this Agreement in the amount of the deductible. (5) The provision of the insurance policy required by this section shall not relieve the Owners from liability for claims not covered by the policy or which exceed its limits, ff any, for which the Owners may be held responsible. 7. (l) Before this Agreement will be executed by the Town, the Owners shall supply the Town with an $80,000 performance and maintenance security by irrevocable letter of credit issued by a chartered bank in Canada in a form satisfactory to the Town Solicitor for the purpose of, (a) guaranteeing satisfactory performance in the construction, installation and provision of the works, services, materials and things; (b) guaranteeing the payment of any amounts payable to the Town hereunder; (c) guaranteeing the payment of any amount that the Town may be required to pay, including costs, under the provisions of the Construction Lien Act; and (d) guaranteeing all workmanship, works, services, materials and things for a period of two years from the date that the works, services, materials and things are completed and such completion acknowledged, in writing, by the Director. (2) The Owners may, at any time after the first $120,000 worth of work, works, services, materials and things has been performed, constructed, installed or provided, and paid for, apply for a reduction in the security and such application shall be made to the Town Treasurer. (3) Upon written verification from the Director that the performance, construction, installation or provision of the work, works, services, materials and things for which reduction is being sought has been satisfactorily completed, and paid for, the Town Manager may reduce the amount of the security to an amount not less than, (a) $50,000, where no certificate or declaration of substantial performance has been made; (b) $35,000, where, (i) a certificate or declaration of substantial performance has been published; (ii) 45 days following publication have expired; and (iii) all liens that may be claimed against any holdback required to be retained by the Town have expired or have been satisfied, discharged or provided for by payment into court, and (c) $10,000, where, (i) a certificate of final completion has been made by the Owners' consulting engineer; (ii) 45 days following the making of such certificate have expired; and (iii) all liens that may be claimed against any holdback required to be retained by the Town have expired or have been satisfied, discharged or provided for by payment into court, 3 which $I0,000 shall secure the guarantee of workmanship, works, services, materials and things until the obligation to guarantee has expired, when the $10,000 shall be returned to the Owners subject to any deductions for rectification of deficiencies. (4) Upon the approval of a reduction in the amount of the security required to be provided in subsection (1), the Town Manager or the Town Treasurer shall provide to the Owners any necessary assurance to effect the reduction. 8. (I) If, in the opinion of the Director, the Owners, (a) are not performing or causing to be performed the work in connection with this Agreement within the specified time, or in order that it may be completed within the specified time, (b) are improperly performing the work, (c) have neglected or abandoned the work before its completion, (d) have unreasonably delayed the work so that the conditions of this Agreement are being violated or carelessly executed, or executed in bad faith, (e) have neglected or refused to renew, repair or perform again any work that is rejected by the Director as defective or unsuitable, or (f) in any other manner default in the performance of the terms of this Agreement, then the Director may notify the Owners and their surety in writing of such neglect, refusal or default and if such notification be without effect within 10 clear days after such notice, then the Director shall have full authority to purchase such materials, tools and machinery and to employ such workmen as in his or her opinion shall be required for the proper completion of the work at the cost and expense of the Owners or their surety, or both. (2) In cases of emergency, in the opinion of the Director, such work may be completed without prior notice but the Owners and their surety shall be notified forthwith. (3) The cost of such work, which may include, at the discretion of the Director, a management fee of up to twenty per cent (20%) of the labour and material value and a dislocation and inconvenience fee of up to thirty per cent (30%) of the value, shall be calculated by the Director whose decision shall be f'mal. 9. Upon the completion, to the satisfaction of the Director, of the works, services, materials and things required hereunder, the Town shall dedicate the lands conveyed to it pursuant to section 3, above, as public highway and assume Quanz Street for maintenance purposes. 10. (1) The Owners shall retain a professional engineer as their consulting engineer to carry out all the necessary engineering and to supervise the construction, installation and provision of the works, services, materials and things required hereunder. (2) Such consulting engineer, or any successor thereto, shall continue to be retained until the Owners' obligation to guarantee all workmanship, works, services, materials and things has expired. (3) Despite subsection (2), the Owners may change from one consulting engineer to another at any time or times so long as the Owners have a consulting engineer retained at all times. I1. (1) Any notice, document or other communication required or permitted to be given hereunder shall be in writing and shall be sufficiently given ff sent by prepaid mail or delivered, (a) in the case of the Owners, to Charles Wiltshire 802226 Ontario Limited Suite 102, 1048 Toy Avenue Picketing, Ontario L1W 3P1 4 and to Richard Stefankiewicz Ever Green Services Inc. 15 Orchard Crest Road Toronto, Ontario M6S 4N2 and (b) in the case of the Town, to The Town Clerk The Corporation of the Town of Picketing Picker'mg Civic Complex One The Esplanade Picketing, Ontario LIV 6K7 (2) Each Party may redesignate the person or the address, or both, to whom or at which such notice, document or other communication shall be given by giving written notice to the other in accordance with this section. (3) Any notice, document or other communication given in accordance with this section shall be deemed to have been given on the first business day following the day of mailing or the day of delivery, as the case may be. 12. Time shall be of the essence of this Agreement. 13. (1) This Agreement and everything herein contained shall extend to, bind and enure to the benefit of the Patties hereto. (2) This Agreement is not assignable, in whole or in part, by either Party. IN WITNESS WHEREOF, the Parties hereto have hereunto affixed their respective corporate seals, duly attested by their proper authorized officers. SIGNED, SEALED & DELIVERED 802226 ONTARIO LIMITED Charles Wiltshire, [position] EVER GREEN SERVICES INC. Richard Stefankiewicz, [position] THE CORPORATION OF THE TOWN OF PICKERING Wayne Arthurs, Mayor Brace Taylor, Clerk 5 ENCUMBRANCER - [COMPANY1 The Encumbrancer hereby postpones any rights or interests which it has in the Lands with the intent that this Agreement shall take effect as though executed and registered prior to the creation of any such right or interest and prior to the execution and registration of any mortgage, agreement or other document creating or defining any such right or interest; And the Encumbrancer hereby covenants and agrees with the Town that this Agreement and any conveyance, easement or other document given pursuant to this Agreement, shall have priority over the rights of the Encumbrancer in the Lands with the intent that the Encumbrancer or anyone claiming under it shall at no time exercise in relation to the Lands any right, title or claim which could not be exercised by the Owner by reason of the terms of this Agreement. Dated at , this day of ,1993. SIGNED, SEALED AND DELIVERED [ENCUMBRANCER] [person], [position] [person], [position]