HomeMy WebLinkAbout2004-165
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THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON
BY-LAW NO. 2004-165
being a by-law to authorize the execution of a Boundary
Road Agreement with the Corporation of the City of Oshawa.
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 Muni<;jgality of Clarington and the
City of Oshawa, dated the:2~ Clay of :Ju. n~ ,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.
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John utton; MayGf - -.' . .'
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THIS AGREEMENT made in triplicate as of the _ day of
,2003
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 for all 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
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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 c;larington.
(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 3.02 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.
(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, 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 ccsts 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 Qshawa, 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 catch basin cleaning,
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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 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 southem 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.
(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 10th 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
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(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.
4. STREET LIGHTING
4.01 Oshawa and Clarington shall, subject to each Municipality's budget approval, share
equally the costs of providing 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) 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:
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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, govemment 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.
7.03 The Municipalities shall jointly detenmine 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 detenmination is being made. I n the
event that the Municipalities do not jointly detenmine 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, S.O. 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.
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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 JfiE CITY OF OSHAWA
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MAYOR
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THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON
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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 Durham Regional
Road 22 (Bloor Street in Clarington), 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 "8" ("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 Regional Road 22 (Bloor Street in Clarington) 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.
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SCHEDULE 8 (NORTH HALF)
BOUNDARY ROAD AGREEMENT
BETWEEN
THE CITY OF OSHAWA & MUNICIPALITY OF CLARINGTON
CITY OF OSHAWA
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LEGEND
City of Oshawa
Responsibility
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Municipality of Clarington
Responsibility
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Regional Road
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SC..t~ULE B (SOUTH HALF)
BOUt-.f)ARY ROAD AGREEMENT
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THE CITY 9F OSHAWA & THE MUNICIPALITY OF CLARINGT)Nr==-=~' II imer I
CITY OF OSHAWA MUNICIPALITY OF CLARINGTON
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LEGEND
Municipality of Clarington
Responsibility ... ... ... ... ... ... ... ... ... .... ... ....
Regional Road
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