HomeMy WebLinkAboutEGD-29-06
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REPORT
ENGINEERING SERVICES DEPARTMENT
Meeting:
GENERAL PURPOSE AND ADMINISTRATION COMMITTEE
Report #:
EGD-29-06
File #:
Resolution #: (:>P(.)- B l/ 7 - 0 b
By-Iaw#:{;)onb -/ I '-(
Date:
Tuesday May 23, 2006
Subject:
CLARINGTON/OSHAWA BOUNDARY ROAD AGREEMENT
Recommendations:
It is respectfully recommended that the General Purpose and Administration Committee
recommend to Council the following:
1. THAT Report EGD-29-06 be received;
2. THAT the Mayor and Clerk be authorized to execute an amending agreement to
the Clarington/Oshawa Boundary Road Agreement (By-law 2004-165) to provide
for equitable cost sharing of new street lighting on boundary roads;
3. THAT Council pass the appropriate by-law confirming the amended agreement;
and
4. THAT the Municipal Solicitor register the agreement and the by-law in the proper
land registry office.
Respectfully by,
O~~
Submitted by: A. S. Cannel a, C.E.T.
Director of Engineering Services
Reviewed by: Franklin Wu
Chief Administrative Officer
ASC/LJB/dv
May 12, 2006
CORPORATION OF THE MUNICIPALITY OF CLARINGTON
40 TEMPERANCE STREET, BOWMANVILLE, ONTARIO L 1C 3A6 T 905-623-3379 F 905-623-9282
Report #EGD-29-06
Page 2
1.0 BACKGROUND
1.1 In June 2004, the Municipality entered into a boundary road agreement with the
City of Oshawa to replace the agreement which had just previously expired. The
wording of the new agreement was updated to reference the new Municipal Act.
The purpose of the proposed amendment to the existing agreement is to provide
more equitable cost sharing of the installation of new street lighting.
2.0 COMMENT
2.1 Previously, the cost of providing and maintaining a street lighting system on a
boundary road was shared equally between the two municipalities unless the
installation was related to development. In that case, the Developing Municipality
would pay the entire construction cost.
The proposed amended agreement continues to provide for an equal share in the
cost of new installations which is not related to development. However, it now
provides "subject to each Municipality's budget approval", for sharing of the
benefit-to-existing component. In other words even though street lighting may be
installed because of new development in the vicinity, there is a benefit to the
existing residents (and road users), which is unrelated to development, and
therefore, should be shared by both parties. The amended clause is contained in
section 6.01 (b).
3.0 CONCLUSION
3.1 In consultation with the City of Oshawa, staff recommend that the amendment be
made to the existing Boundary Road Agreement to provide for equal sharing of
the benefit-to-existing component of street lighting works.
Attachments
Attachment 1 - Amending Agreement to the 2004 Agreement
THIS AGREEMENT made in triplicate as of the _ day of
,2006
ATTACHMENT NO.: 1
REPORT NO.: EGD-28-06
Amending Agreemenllo the 2004
Agreement
BETWEEN:
THE CORPORATION OF THE CITY OF OSHAWA
(herein referred to as "Oshawa")
- and -
THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON
(herein referred to as "Clarington")
RECITALS
(a) Pursuant to section 11 of the Municipal Act, 2001, Clarington and Oshawa may pass by-laws
respecting matters within the "highways" sphere of jurisdiction.
(b) Pursuant to section 29 of the Municipal Act, 2001, if municipalities having joint jurisdiction over a
boundary line highway enter into an agreement under which each municipality agrees to keep
any part of the highway in repair for its whole width and to indemnify the other municipality from
any loss or damage arising from the lack of repair for that party, the agreement and a copy of
the by-law authorizing the agreement may be registered in the land registry office.
(c) Townline Road is a boundary line highway over which Oshawa and Clarington have joint
jurisdiction
(d) By agreement dated January 24, 1979 between Oshawa and The Corporation of the Town of
Newcastle, provision was made for the reconstruction and sharing of costs relating to such
reconstruction of that part of Townline Road between the Canadian Pacific Railway line and
Farewell Creek.
(e) By agreement dated October 1, 1982 between Oshawa and The Corporation of the Town of
Newcastle, provision was made for the maintenance and repair of that part of Townline Road
forming part of the boundary between Oshawa and The Corporation of the Town of Newcastle.
(f) By this Agreement Oshawa and Clarington wish to make provision forall matters relating to the
maintenance, repair and construction and the sharing of costs of such construction of certain
parts of Townline Road.
Now THEREFORE in consideration of the mutual terms, conditions and covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which by each of the
Municipalities is hereby acknowledged, THE MUNICIPALITIES HERETO AGREE AS FOllOWS:
1. INTERPRETATION
1.01 In this Agreement where words appear with their first letter capitalized, the words shall have the
meanings set out for them in the lettered paragraphs of this Section. Otherwise, all words used
in this Agreement are intended to have the meanings ordinarily ascribed to them in the English
language.
(a) "Agreement" means this agreement, including its recitals and any schedules which form an
integral part of it, as amended from time to time.
(b) "Claims" include any and all claims, actions, causes of action, complaints, demands,
suits or proceedings of any nature or kind in respect of any and all losses, damages,
liabilities, deficiencies, costs and expenses (including, without limitation, all legal and
other professional fees and disbursements, interest, liquidated damages and amounts
paid in settlement, whether from a third person or otherwise), the costs or expenses of
complying with any environmental laws, and any economic losses, consequential,
indirect, special and incidental damages resulting from or in any way related to a breach
of a term of this Agreement, loss of life, personal injury (including, in all cases, personal
discomfort and illness), and loss of and damage to property.
(c) "Clarington" means The Corporation of the Municipality of Clarington.
(d) "Clarington Roads" mean those portions of Townline Road described in Schedule B to this
Agreement and as depicted in Schedule D to this Agreement. For the purposes of Section
302 of this Agreement, Clarington Roads shall also include any unopened part of Townline
Road between the northern limit of Oshawa Roads and the northern limit of Clarington.
The approximate total length of Clarington Roads, excluding any unopened part of
Townline Road, is 4.81 km.
Page 1 of 6
ATTACHMENT NO.: 1
REPORT NO.: EG0-28-06
Amending Agreemenllo the 2004
Agreement
(e) "Construction" includes reconstruction, gravelling, paving and excavating and includes the
installation of engineered fill, subdrains, granular base, concrete curb and gutter, concrete
sidewalk, guiderails, topsoil, sod, street trees, storm sewers, catchbasins, culverts, bridge
construction, traffic signalization, street lighting, sanitary sewers, watermains and service
connections and also similar activities and materials in, under, over, upon, along, above or
across Townline Road but does not include Maintenance and Repair.
(f) "Construction Costs" means all costs relating to Construction and include costs relating to
surveying, designing, drafting, preparation of specifications, requests for proposals,
tendering, supervision of construction, accounting, overhead costs, debenturing, interest
and financing costs.
(g) "Developing Municipality" means the Municipality in which a Development is proposed or
occurs.
(h) "Development" means any work on or to land or buildings, including redevelopment, which
requires one of the following actions:
(i) the passing of a zoning by-law, or an amendment to a zoning by-law under section
34 of the Planning Act;
(ii) the approval of a site plan under section 41 of the Planning Act;
(iii) the approval of a minor variance under section 45 of the Planning Act which
involves a change in use, intensification of use or expansion of use;
(iv) a conveyance of land to which a by-law passed under subsection 50(7) of the
Planning Act applies;
(v) the approval of a Plan of Subdivision under section 51 of the Planning Act;
(vi) a consent under section 53 of the Planning Act;
(vii) the approval of a description under sections 8 or 9 of the Condominium Act, 1998;
or
(viii) the issuing of a permit under the Building Code Act, 1992 in relation to a building or
structure.
(i) "Durham Roads" means those portions of Townline Road described in Schedule C to this
Agreement and as depicted in Schedule D to this Agreement. The approximate total length
of Durham Roads is 5.40 km.
0) "Maintain and Repair" means activities relating to the maintenance and repair of municipal
highways in accordance with and to the standard from time to time prescribed by by-law
and policy, as applicable, of Clarington or Oshawa, as the case may be, including, without
limitation, ditching, CSP culvert replacement, box culvert restoration, curb replacement,
guiderail repair, pavement marking, regravelling, repaving, emulsion resurfacing, asphalt
patching, gravel patching, grading and seasonal maintenance, sidewalk replacement,
sidewalk maintenance, maintenance of existing road closure gates, sewer and catchbasin
cleaning, priming crack sealing, grass and weed cutting, sweeping and flushing, traffic and
regulatory sign maintenance, winter control measures (including snow plowing, snow
removal, snow fencing and de-icing) litter control, tree trimming and removal, traffic
signalization maintenance, street lighting maintenance and bridge maintenance.
(k) "Municipality" means Clarington or Oshawa.
(I) "Oshawa" means The Corporation of the City of Oshawa.
(m) "Oshawa Roads" mean those portions of Townline Road described in Schedule A to this
Agreement and as depicted in Schedule D to this Agreement. For the purposes of section
3.01 of this Agreement, Oshawa Roads shall also include any unopened part of Townline
Road between Oshawa's southern limit and the northern limit of Oshawa Roads. The
approximate total length of Oshawa Roads, excluding any unopened part of Townline
Road, is 4.12 km.
(n) "Term" means the term of this Agreement as specified in section 2.01 of this Agreement.
Page 2 of 6
ATTACHMENT NO.: 1
REPORT NO.: EGD.28-06
AmendIng Agreemenllo the 2004
Agreement
(0) ''Townline Road" is a boundary line highway that includes Clarington Roads, Durham
Roads and Oshawa Roads.
1.02 All words in this Agreement shall be deemed to include any number or gender as the context
requires.
1.03 This Agreement shall be interpreted according to the laws of the Province of Ontario.
1.04 Article, section, clause and/or paragraph headings are for reference purposes only and shall not in
any way modify or limit the statements contained in the text of this Agreement.
1.05 References to federal or provincial statutes or regulations or municipal by-laws are deemed to refer
to the relevant legislation as amended, including successor legislation. Without limitation,
(a) "Building Code Act" means the Building Code Act, 1992, S.O. 1992, c. 23;
(b) "Condominium Act, 1998" means the Condominium Act, 1998, S.O. 1998, c. 19;
(c) "Municipal Act, 2001" means the Municipal Act, 2001, S.O. 2001, c. 25;
(d) "Planning Act" means the Planning Act, R.S.O. 1990, c. P.13
2. TERM
2.01 The term of this Agreement shall commence on the date that by-laws of both Municipalities
authorizing the execution of this Agreement have been passed ("By-law Date"). The term of this
Agreement shall expire on the later of the 10lh anniversary of the By-law Date and the date on
which either Municipality has notified the other that this Agreement has been terminated. The
Municipalities acknowledge that this Agreement together with a copy of the by-laws authorizing the
execution of this Agreement may be registered in the Land Registry Office of Durham (no. 40).
3. MAINTENANCE AND REPAIR
3.01 Oshawa covenants and agrees that it shall:
(a) Maintain and Repair to their full width Oshawa Roads;
(b) indemnify and save harmless Clarington from and against any Claims arising from or in any
way related to any alleged failure by Oshawa to Maintain and Repair Oshawa Roads; and
(c) subject to Articles 5 and 6 of this Agreement, not undertake any Construction in respect of
Oshawa Roads except with Clarington's prior written consent.
3.02 Clarington covenants and agrees that it shall:
(a) Maintain and Repair to their full width Clarington Roads;
(b) indemnify and save harmless Oshawa from and against any Claims arising from or in any
way related to any alleged failure by Clarington to Maintain and Repair Clarington Roads;
and
(c) subject to Articles 5 and 6 of this Agreement, not undertake any Construction in respect of
Clarington Roads except with Oshawa's prior written consent.
3.03 Oshawa and Clarington shall, subject to each Municipality's budget approval, share equally the
cost of any regravelling, repaving and emulsion resurfacing, bridge maintenance, box culvert
restoration and traffic signalization maintenance associated with their respective obligations to
Maintain and Repair contemplated by clauses 3.01 (a) and 3.02(a) of this Agreement.
3.04 Clarington shall administer access and utility consents to Townline Road from Clarington.
3.05 Oshawa shall administer access and utility consents to Townline Road from Oshawa.
3.06 Each Municipality shall consult with the other for the purposes of the administration of access
pursuant to sections 3.04 and 3.05 of this Agreement.
Page 3 of 6
ATTACHMENT NO.: 1
REPORT NO.: EGD.28-06
Amending Agreemenllo the 2004
Agreement
4. STREET LIGHTING
4.01 Oshawa and Clarington shall, subject to each Municipality's budget approval, share equally the
costs of operating and maintaining a street lighting system in respect of Clarington Roads, Durham
Roads and Oshawa Roads.
5. CONSTRUCTION
5.01 Subject to Article 6 of this Agreement and to each Municipality's budget approval, Oshawa and
Clarington will contribute equally to Construction Costs related to Construction of Oshawa Roads
and Clarington Roads.
6. DEVELOPMENT
6.01 Notwithstanding paragraphs 3.01 (c) and 3.02(c) of this Agreement, if Construction relates to a
Development, the Developing Municipality may undertake or cause or permit to be undertaken
such Construction on the following terms:
(a) The Developing Municipality shall give to the other Municipality at least eight (8) weeks'
written notice prior to the commencement of such Construction.
(b) Oshawa and Clarington shall, subject to each Municipality's budget approval, share equally
the benefit-to-existing component of the street lighting portion of Construction Costs relating
directly to such Construction. The Developing Municipality shall bear the balance of the
street lighting portion of Construction Costs relating directly to such Construction.
Otherwise, the other Municipality shall bear none of the Construction Costs relating directly
to such Construction.
6.02 Nothing in section 6.01 shall derogate from each Municipality's obligation to Maintain and Repair
Townline Road pursuant to the terms of this Agreement.
7. GENERAL
7.01 Any notice to be given under this Agreement shall be sufficiently given if delivered or if sent by
prepaid first class mail and addressed
to Clarington at:
The Corporation of the Municipality of Clarington
Attention: Director of Engineering Services
40 Temperance Street
Bowmanville, ON
L 1 C 3A6
and to Oshawa at:
The Corporation of the City of Oshawa
Attention: Commissioner of Development Services
50 Centre Street South
Oshawa, ON
L 1 H 3Z7
Receipt of notice shall be deemed on the earlier of the date of delivery or five (5) days following the
date of mailing of the notice. Either Municipality may change its address for notice by giving notice
of change of address pursuant to this section.
7.02 Notwithstanding anything in this Agreement, neither Municipality shall be in default with respect to
the performance of any of the terms of this Agreement if any non-performance is due to any force
majeure, strike, lock-out, labour dispute, civil commotion, war or similar event, invasion, the
exercise of military power, act of God, government regulations or controls, inability to obtain any
material or service, or any cause beyond the reasonable control of the Municipality (unless such
lack of control results from a deficiency in financial resources). Otherwise, time shall be of the
essence of this Agreement and all the obligations contained herein.
Page 4 of 6
ATTACHMENT NO.: 1
REPORT NO.: EGD-28-06
Amending Agreemenllo the 2004
Agreement
7.03 The Municipalities shall jointly determine no less frequently than quarterly during each year of the
term of this Agreement (individually, an "Adjustment Date") the amount, if any, to be paid by one
Municipality to the other Municipality in accordance with the terms of this Agreement in respect of
the period for which the determination is being made. In the event that the Municipalities do not
jointly determine such amount within thirty (30) days of an Adjustment Date, either Municipality
may refer the matter to be finally settled by arbitration in accordance with the provisions of this
Agreement. The provisions of the Arbitration Act, 1991, 5.0. 1991', c. 17 shall apply, except where
a contrary intention is expressed herein. The matter shall be referred to the arbitration of a single
arbitrator, if the parties agree upon one, otherwise to three arbitrators, one to be appointed by each
party and a third to be chosen by the first two named before they enter upon the business of
arbitration. The award and determination of the arbitrator or arbitrators or any two of the three
arbitrators shall be binding upon the Municipalities. Any amount shall be paid within thirty (30)
days of the earlier of the Municipalities' determination or the award of the arbitrator(s), as
applicable.
7.04 The rights and liabilities of the Municipalities shall enure to the benefit of and be binding upon the
Municipalities and their respective successors and approved assigns.
7.05 Subject to section 7.06 of this Agreement, this Agreement contains the entire agreement between
the Municipalities. There is no covenant, promise, agreement, condition precedent or subsequent,
warranty or representation or understanding, whether oral or written, other than as set forth in this
Agreement. This Agreement fully replaces and supersedes any agreement or other contractual
arrangement between the MuniCipalities related to the subject matter of this Agreement.
7.06 Nothing in this Agreement relieves either Municipality from any outstanding financial obligation to
the other in respect of any prior agreement or other contractual arrangement between the
Municipalities related to the subject matter of this Agreement.
7.07 If any article, section, subsection, paragraph, clause or subclause or any of the words contained in
this Agreement shall be held wholly or partially illegal, invalid or unenforceable by any court of
competent jurisdiction, the Municipalities agree that the remainder of this Agreement shall not be
affected by the judicial holding, but shall remain in full force and effect. The provisions of this
Agreement shall have effect, notwithstanding any statute to the contrary.
7.08 No supplement, amendment or waiver of or under this Agreement shall be binding unless executed
in writing by the Municipality to be bound thereby. No waiver by a Municipality of any provision of
this Agreement shall be deemed or shall constitute a waiver of any other provision or a continuing
waiver unless otherwise expressly provided.
WITNESS WHEREOF the Municipalities hereto have hereunto affixed their corporate seals duly attested by
the proper signing officers in that behalf.
THE CORPORATION OF THE CITY OF OSHAWA
MAYOR
cIs
CLERK
THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON
MAYOR
cIs
CLERK
Page 5 of 6
ATTACHMENT NO.: 1
REPORT NO.: EGD-28-06
Amending Agreemenllo the 2004
Agreement
Schedule "A" ("Oshawa Roads")
Those parts of Townline Road:
(a) from McLaughlin Bay on Lake Ontario northerly to Provincial Highway No. 401, being a distance
of approximately 0.18 km;
(b) from the St. Lawrence & Hudson Railway (formerly CPR) northerly to Gord Vinson Aveune,
being a distance of approximately 1.15 km;
(c) from Durham Regional Road 22 (Bloor Street East in Oshawa) northerly to Cherrydown Drive in
OShawa, being a distance of approximately 0.46 km;
(d) from a point approximately 0.08 km south of Durham Road 59 (Olive Avenue in Oshawa)
northerly to Durham Regional Road 59 (Olive Avenue in Oshawa), being a distance of
approximately 0.08 km; and
(e) from Durham Regional Road 4 (Taunton Road) northerly to Conlin Road East in Oshawa
(Concession Road 6 in Clarington) and further northerly approximately 0.19 km to the southerly
limit of the unopened part of Townline Road, being a total distance of approximately 2.25 km.
Schedule "B" ("Clarington Roads")
Those parts of Townline Road:
(a) from Concession Road 7 in Clarington northerly to Winchester Road East in Oshawa, being a
distance of approximately 0.18 km; and
(b) from a point approximately 0.22 km south of Regional Road 3 (Columbus Road East in
Oshawa) northerly to Regional Road 3 and further northerly approximately 4.41 km to
Concession Road 10 in Clarington, being a total distance of approximately 4.63 km.
Schedule "C" ("Durham Roads")
Those parts of Townline Road:
(a) from Gord Vinson Avenue northerly to Regional Road 22 (Bloor Street East in OShawa), being a
distance of approximately 0.25 km; and
(b) from Regional Road 59 (Olive Avenue in Oshawa), northerly to Regional Road 4 (Taunton
Road), being a distance of approximately 5.15 km.
Page 6 of 6