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HomeMy WebLinkAbout2004-164 , .. ., ~ THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON BY-LAW NO. 2004- 164 being a by-law to authorize the execution of a Boundary Road Agreement with the Corporation of the Township of Scugog. NOW THEREFORE, the Council of the Corporation of the Municipality of Clarington enacts as follows: 1. THAT the Mayor and Clerk are hereby authorized to execute, on behalf of the Corporation of the Municipality of Clarington and seal with the Corporation's seal, a Boundary Road Agreement for the roads forming the boundary between the Municipality of Clarington and the Township of Scugog, dated th&lt:"aay of ~u.,,,,,. , 2004, in the form attached hereto as Schedule "X". 2. THAT Schedule "X" attached hereto forms part of this by- law. BY-LAW read a first and second time this 28th day of June, 2004. BY-LAW read a third time and finally passed this 28th day of June, 2004. @lll.~ John Mutton, Mayor -{j" '..'!.. .. / THIS AGREEMENT made in triplicate as of this 16th day of August ,2004. BETWEEN: THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON, (herein referred to as "Clarington") -and- THE CORPORATION OF THE TOWNSHIP OF SCUGOG, (herein referred to as "Scugog") WHEREAS: (A) Section II of the Municipal Act provides that by-laws may be passed by the councils of all single tier municipalities respecting highways. (B) And whereas Section 28 of the Municipal Act provides that a municipality has joint jurisdiction over all highways over which it had jurisdiction on December 31,2003. (C) And whereas Section 29 of the Municipal Act provides that the corporations of adjoining municipalities, having joint jurisdiction over boundary roads, may enter into an agreement for the maintenance and repair of any highway fonning the boundary between such municipalities under which each municipality may agree 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 part. (D) Clarington and Scugog are adjoining municipalities. (E) Boundary Road is a road forming part of the boundary between the northern limit of Clarington and the southern limit of Scugog. (F) By agreement dated November 29, 1993 between The Corporation of the Municipality of Clarington and The Corporation of the Township of Scugog, provision was made for the maintenance and repair of that part of Boundary Road forming part of the boundary between Clarington and Scugog Township. (G) By this Agreement, Clarington and Scugog wish to make provision for all matters relating to the maintenance, repair and construction and the sharing of costs of such construction of certain parts of Boundary Road forming part of the boundary between Clarington and Scugog. (H) And whereas Subsection 29(4) of the Municipal Act, provides for the registration of this agreement in the proper registry office for the area in which the highway is located. 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, I. INTERPRETATION 1.0 I 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. Page 2 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) "Bona Fide Fanner" means a member in good standing with the Ontario Federation of Agriculture. (C) "Boundary Road" is a road forming part of a boundary between the northern limit of Clarington and the southern limit of Scugog, including all intersections with local roads, as more particularly described in Schedule "A" and more particularly depicted in Schedule "B". (D) "Claims" include any and all claims, actions, causes of action, damages, losses, 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. (E) "Clarington" means The Corporation of the Municipality of Clarington. (F) "Construction" includes, but is not limited to, reconstruction, graveling, paving and excavating and includes the installation of engineered fill, sub drains, granular base, concrete curb and gutter, concrete sidewalk, guiderails, topsoil, sod, street trees, storm sewers, catchbasins, culverts, bridge construction, traffic signalization, sanitary sewers, watermains, and service connections" and also similar activities and materials in, under, over, upon, along, above or across Boundary Road but does not include Maintenance and Repair. (G) "Construction Costs" means all costs relating to Construction and includes, but is not limited to, costs for staff or consultants, soils analysis, surveying, desiguing, drafting, preparation of specifications, requests for proposals, tendering, supervision of construction, accounting, overhead, debenturing, interest financing and net land acquisition costs. (H) "Developing Municipality" means the Municipality in which a Development is proposed or occurs. (I) "Development" means any work on or to land or buildings, including redevelopment, which requires one of the following actions: 1. the passing of a zoning by-law, or an amendment to a zoning by- law under section 34 of the Planning Act; 11. the approval of a site plan under section 41 of the Planning Act; 111. 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; Page 3 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; Vll. the approval of a description under section 50 of the Condominium Act; or V111. the issuing of a permit under the Building Code Act, 1992, in relation to a building or structure. (1) "Maintain and Repair" includes, but is not limited to, 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 Scugog or Clarington, as the case may be, including, without limitation, ditching, culvert replacement, curb replacement, guiderail repair, pavement marking, regravelling, repaving, emulsion resurfacing, asphalt patching, gravel patching, shoulder maintenance, grading and seasonal 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 litter control, tree trimming and removal and street lighting maintenance. (K) "Municipality" means Clarington or Scugog, as the case may be. (L) "Scugog" means The Corporation of the Township ofScugog. (M) "Summer Maintenance" means one (I) spring grading and one (1) fall grading undertaken at the request of a Bona Fide Farmer, as well as the picking up of debris, once annually, to be coordinated by the appropriate authorities on a cost sharing basis (for the debris pick up activity only). (N) "Term" means the term of this Agreement as specified in section 2.01 of this Agreement. 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" means the Condominium Act, S.O. 1998 c. c. "Municipal Act" means the Municipal Act, S.O. 2001 c.25 d. "Planning Act" means the Planning Act, R.S.O. 1990, c. P. 13 Page 4 2. TERM 2.01 The term of this Agreement shall commence on the date that this Agreement has been executed by both parties. Tbe term of this Agreement shall expire on the fifth (5th) anniversary of such date. 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). 2.02 It is agreed that at the expiration of the Term of this Agreement, or any extension thereof, the Term shall deem to be extended for further periods of five (5) years each upon the same terms and conditions that are contained in this Agreement unless either party to the Agreement, at least six (6) months before the expiration of such term or any extension thereof, shall have given to the other notice in writing of the intention of that party to terminate the Agreement at the expiration of the current Term. 3. MAINTENANCE AND REPAIR 3.01 Clarington covenants and agrees that it shall: (A) Maintain and Repair to its full width, the portion of the Boundary Road called the "Clarington Year Round Portion" in Schedule "A". (B) Undertake Summer Maintenance, to its full width, the portion of the Boundary Road called the "Clarington Summer Maintenance Portion" in Schedule "A". (C) Indemnify and save harmless Scugog from and against any Claims arising from or in any way related to any alleged failure by Clarington to maintain and repair these portions of the Boundary Road. 3.02 Scugog covenants and agrees that it shall: (A) Maintain and Repair to its full width, the portion of the Boundary Road called the "Scugog Year Round Portion" in Schedule "A". (B) Undertake Summer Maintenance, to its full width, the portion of the Boundary Road called the "Scugog Summer Maintenance Portion" in Schedule "A". (C) Indemnify and save harmless Clarington from and against any Claims arising from or in any way related to any alleged failure by Scugog to maintain and repair these portions of the Boundary Road. 3.03 Clarington and Scugog shall, subject to each Municipality's budget approval, share the cost of Maintaining and Repairing the Boundary Road consistent with the activities detailed in clauses 3.01 and 3.02 of this Agreement. 3.04 The parties shall administer municipal access and consent to the Boundary Road, on the portions under their respective jurisdictions. 4. CONSTRUCTION 4.01 Subject to Section 6 of this Agreement, and subject to each Municipality's budget approval, Clarington and Scugog will contribute equally to the Construction costs (including design, engineering and all associated costs) related to improvements to the Boundary Road. This work shall be undertaken by Clarington, and Clarington shall provide Scugog with at least 6 months written notice prior to the commencement of Construction. Clarington covenants and agrees that it shall not Page 5 undertake any Construction on the Boundary Road except with Scugog's written consent. Scugog agrees to pay Clarington their share of the cost of construction within 30 days of receipt of invoice. 5. DEVELOPMENT 5.01 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) The other Municipality shall bear none of the Construction costs relating directly to such Construction. 5.02 Nothing in section 6.01 shall derogate from Clarington's and Scugog's obligation to Maintain and Repair the Boundary Road pursuant to the terms of this Agreement. 6. FINANCIAL 6.01 Clarington and Scugog will coordinate and supervise all Maintenance, Repair and Construction Work for their respective portions of the Boundary Road (except for clause 6.01 related to development related Construction and annual collection and disposal of debris) and be responsible for payment of all related expenses. 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 Scugog at: The Corporation of the Township of Scugog 181 Perry Street, P. O. Box 780 Port Perry Ontario L9L IA7 to the attention of the Township Clerk, with a copy to the Director of Public Works. and to Clarington at: The Corporation of the Municipality of Clarington 40 Temperance Street Bowmanville, Ontario LlC 3A6 to the attention of the Municipal Clerk, with a copy to the Director of Operations and Director of Engineering. 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. 8.02 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 1 Page 6 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. 8.03 The rigbts and liabilities of the Municipalities shall enure to the benefit of and be binding upon the Municipalities and their respective successors and approved assIgns. 8.04 Subject to section 8.05 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. 8.05 Nothing in this Agreement relieves either Municipality from any outstanding financial obligation to the other in respect to of any prior agreement or other contractual arrangement between the Municipalities related to the subject matter of this Agreement. 8.06 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. 8.07 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. 8.08 Any dispute that may arise under or in relation to this Agreement shall be determined by arbitration in accordance with and pursuant to the provisions of the Arbitration Act, S.O. 1991, c. 17. 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 MUNICIPALITY OF CLARINGTON MAYOR cis ~'2J " - ,. ,. "';:-. /~'. '~:.c:: 'CLERK Page 7 THE CORPORATION OF THE TOWNSHIP OF SCUGOG ~~>_ , 0 ~r..,~ MAYOR cis CLERK Schedule "A" ("Boundary Road") Those parts of the Boundary Road: (a) from west Boundary Road easterly to Enfield Road, a distance of approximately 2,000 m (herein called "Clarington Summer Maintenance Portion") (b) from Enfield Road, easterly a distance of approximately 4,050 m (herein called "Unopened Portion") (c) from the easterly limit of the Unopened Portion easterly a distance of approximately 1,250 m to Regional Road 57 (herein called "Clarington Year Round Maintenance Portion") (d) from Regional Road 57 easterly a distance of approximately 2,000 m (herein called "Scugog Summer Maintenance Portion") (e) from the easterly limit of the Scugog Summer Maintenance Portion, easterly a distance of approximately 800 m (herein called "Scugog Year Round Maintenance Portion") (f) from the easterly limit of the Scugog Year Round Portion, easterly a distance of approximately 4,110 m to the Clarington/City of Kawartha Lakes boundary road (herein called the "Scugog Summer Maintenance Portion")