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HomeMy WebLinkAbout2010-092THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON BY-LAW NO. 2010-092 Being a by-law to authorize the execution of a Boundary Road Agreement with the Corporation of the Municipality of Port Hope. NOW THEREFORE, the Council of The Corporation of the Municipality of Clarington enacts as follows: THAT the Mayor and Clerk are hereby authorized to execute, on behalf of the Corporation of the Municipality of Clarington and seal the Corporation's seal, a Boundary Road Agreement far the roads forming the boundary between the Municipality of Clarington and the Municipality of Port Hope, dated the 12th day of July, 2010, 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 12th day of July, 2010. BY-LAW read a third time and finally passed this 12th day of July, 2010. unicipal Clerk '~ Ji ern _ ,- iaya>;: ; 1 J ;~ m ~''nn ~~HOpe BOUNDARY ROAD AGREEMENT BETWEEN: THE CORPORATION OF THE MUNICIPALITYOF CLARINGTON ("Clarington") - and - THE CORPORATION OF THE MUNICIPALITY OF PORT HOPE ("Port Hope") WHEREAS: ~lart~g~vn A. Subsection 11(3) of the Municipal Act, 2001, S.O. 2001, c.25 as amended ("Act") provides that by-laws may be passed by lower-tier and upper-tier municipalities, subject to the rules set out in subsection 11(4) respecting highways within their respective jurisdictions. B. Section 28 of the Act provides that a municipality has, among other matters, joint jurisdiction over alf highways over which it had joint jurisdiction on December 31, 2002. C. As a result of municipal restructuring The Corporation of the Town of Port Hope and The Corporation of the Township of Hope ("Hope Township") became The Corporation of the Municipality of Port Hope effective on January 1, 2001. Port Hope is the successor of Hope Township for all purposes. D. On December 31, 2002, Clarington and Port Hope had joint jurisdiction over the public highway forming the boundary between Clarington and Port Hope ("Boundary Road") depicted in Schedule "A" to this Agreement. E. By an agreement dated October 12, 1993, Clarington and Hope Township provided for the maintenance and repair of the Boundary Road ("Clarington/Hope Township Agreement"). F. By this Agreement, Clarington and Port Hope wish to make provisions for all matters relating to the maintenance, repair, construction and facilities on or related to the Boundary Road. G. Subsection 29.1(1) of the Act provides that municipalities having joint jurisdiction over a boundary road highway may enter into an agreement 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. NOW THEREFORE Clarington and Port Hope agree as follows: Interpretation In this Agreement, (a) "Agreement" means this agreement, including its recitals and Schedule "A", as amended from time to time; (b) "Boundary Road" is the road forming part of a boundary between the easterly limit of Clarington and the westerly limit of Port Hope, including all intersections with local roads, as more particularly depicted in Schedule "A"; (c) "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; (d) "Clarington Opened Portion of the Boundary Road" means that portion of the Boundary Road depicted as such in Schedule "A"; (e) "Clarington Unopened Portion of the Boundary Road" means that portion of the Boundary Road depicted as such in Schedule "A"; (f) "Construction" includes reconstruction, graveling, 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, service connections and all Maintenance and Repair Work that exceeds $10,000 for a particular project; (g) "Construction Costs" means all costs relating to Construction and includes costs for staff or consultants, soils analysis, surveying, designing, drafting, preparation of specifications, requests for proposals, tendering, supervision of construction, accounting, overhead, debenturing, interest financing and net land acquisition costs; (h) "Maintenance and Repair Work" means all works required to maintain and repair the Boundary Road to a standard that meets the minimum maintenance standards required by O. Reg. 239/02 and, in addition, includes ditching, culvert replacement, entrance culvert maintenance, curb replacement, guiderail repair, pavement marking, maintenance of existing road closure gates, sewer and catchbasin cleaning, crack sealing, grass and weed cutting, sweeping and flushing, litter control, and tree trimming and removal work; (i) "Port Hope Opened Portion of the Boundary Road" means that portion of the Boundary Road depicted as such in Schedule "A"; and (j) "Port Hope Unopened Portion of the Boundary Road" means that portion of the Boundary Road depicted as such in Schedule "A". 2. All words in this Agreement shall be deemed to include any number or gender as the context requires. 3. This Agreement shall be interpreted according to the laws of the Province of Ontario. 4. References to provincial statutes or regulations are deemed to refer to the relevant legislation as amended, including successor legislation. Term 5. The term ("Term") of this Agreement shall commence on August 1, 2010 and shall expire on the tenth anniversary of such date (July 31, 2020). 6. The Term shall automatically renew at the expiration of the Term, or any extension thereof, for a further one-year period on the same terrns and conditions unless either party provides 180 days notice in writing of its intention to terminate at the expiration of the then current term. Maintenance and Repair 7. Clarington shall, at its cost, (a) undertake all Maintenance and Repair Work within the full width of the Clarington Opened Portion of the Boundary Road; (b) remove and dispose of litter from the Clarington Unopened Portion of the Boundary Road; and (c) indemnify and save harmless Port Hope from and against any Claim arising from or in any way related to any alleged failure by Clarington to perform its duties under clauses (a) and (b). 8. Port Hope shall, at its cost, (a) undertake all Maintenance and Repair Work within the full width of the Port Hope Opened Portion of the Boundary Road; (b) remove and dispose of litter from the Port Hope Unopened Portion of the Boundary Road; and (c) indemnify and save harmless Clarington from and against any Claim arising from or in any way related to any alleged failure by Port Hope to perform its duties under clauses (a) and (b). 9. Clarington shall exercise municipal access and consent powers respecting the Clarington Opened Portion and the Clarington Unopened Portion of the Boundary Road. Port Hope shall exercise municipal access and consent powers respecting the Port Hope Opened Portion and the Port Hope Unopened Portion of the Boundary Road. 10. Clarington and Port Hope shall coordinate all Maintenance and Repair Work on the Clarington Opened Portion and the Port Hope Opened Portion of the Boundary Road, respectively. Each shall be responsible for payment of all related expenses incurred on their respective portions of the Boundary Road. 11. Notwithstanding paragraphs 7 and 8, the costs incurred by either party respecting the cost of the installation and operation of safety features and/or improvements on railway crossings of the Boundary Road shall be shared equally. Construction 12. Subject to paragraph 14 and subject to each municipality's budget approval, Clarington and Port Hope shall contribute equally to the Construction Costs related to improvements to the Clarington Opened Portion of the Boundary Road and the Port Hope Opened Portion of the Boundary Road. 13. Original installation of entrance culverts shall be the responsibility of the municipality in which that lot is registered. Customers of each municipality shall have new culverts installed in accordance with policies of their respective municipality. New culverts on the Clarington Opened Portion of the Boundary Road will be installed by Clarington forces. New culverts on the Port Hope Opened Portion of the Boundary Road will be installed by Port Hope forces. The location of these new entrance culverts shall be mutually agreed upon by representatives of Clarington and Port Hope. 14. If a subdivision development occurs on either side of the Boundary Road and works related to the subdivision are required pursuant to the terms of the subdivision agreement, both Port Hope and Clarington shall agree on the works to be undertaken on the Boundary Road and the municipality that has entered into the subdivision agreement may perform such works. Traffic Regulation 15. Those by-laws regulating traffic shall be applied by the municipality having jurisdiction over that portion of roadway which it has undertaken to maintain and repair pursuant to paragraphs 7 and 8 of this Agreement. The adjoining municipality shall be advised in writing of any proposed traffic by-law amendments for comments a minimum of thirty (30) days prior to passing of a by-law by the governing Council. The adjoining municipality shall be provided with certified copies of such by-law. The municipality having jurisdiction over a roadway which intersects the Boundary Road shall be responsible for the required top and street name signs of the intersection road. All signs shall be installed in accordance with all applicable Ontario Traffic Manuals. Insurance 16. Each municipality shall maintain, in full force and effect, either a public entity integrated risk insurance policy including municipal liability coverage or a general liability insurance policy, either policy to be in an amount not less than Five Million Dollars ($5,000,000) per occurrence, at all times and throughout the term of this Agreement. Each municipality shall include in the said policy, an extension for non-owned automobile liability coverage in an amount of not less than Five Million Dollars ($5,000,000). Each municipality shall maintain, in full force and effect, owned automobile liability coverage in an amount of not less than Five Million Dollars ($5,000,000). The amounts of coverage shall be reviewed by the municipalities on any renewal. 17. Each municipality shall name the other as an additional insured on the policies set out in paragraph 16 at all times and throughout the Term. 18. Each municipality agrees to provide the other municipality with proof of the insurance required under this Agreement when requested in writing. General 19. This Agreement together with a copy of the by-laws authorizing its execution may be registered in the proper land registry offices for the areas in which the Boundary Road is located. 20. (a) If any notice or other document is required to be or may be given by Clarington to Port Hope under this Agreement, such notice shall be mailed by first class prepaid post or delivered to: Municipality of Port Hope 56 Queen Street Port Hope, Ontario L1A 3Z9 Attention: Director of Works and Engineering or such other address of which Port Hope has notified Clarington in writing. Any such notice so mailed or delivered shall be deemed good and sufficient notice under the terms of this Agreement and shall be effective from the date which it is so mailed or delivered; and (b) If any notice or other document is required to be or may be given by Port Hope to Clarington under this Agreement, such notice shall be mailed by first class prepaid post or delivered to: Municipality of Clarington 40 Temperance Street Bowmanville,Ontario L1C3A6 Attention: Director of Engineering Services or such other address of which Clarington has notified Port Hope in writing. Any such notice so mailed or delivered shall be deemed good and sufficient notice under the terms of this Agreement and shall be effective from the date which it is so mailed or delivered. 21. 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. 22. The rights and liabilities of the parties shall enure to the benefit of and be binding upon them and their respective successors. 23. 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. 24. 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. 25. If any paragraph or clause 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. Subject to the foregoing, this Agreement fully replaces and supersedes other contractual arrangements between the municipalities related to the subject matter of this Agreement. 26. The Clarington/Hope Township Agreement shall terminate and have no further force and effect on the day as of which this Agreement is made, provided that notwithstanding such termination, the obligations of each municipality to make payments to or to indemnify the other municipality under the Clarington/Hope Township Agreement shall continue in force until they are fully performed. Subject to the foregoing provisions of this paragraph, this Agreement fully replaces and supercedes any agreement or other contractual matters between the municipalities related to the subject matter of this Agreement. 27. 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. 28. In the event of a dispute between the parties to the Agreement arising pursuant to this Agreement, the parties agree to engage in good faith negotiations with a view to resolving the dispute. 29. In the event that the parties are unable to resolve a dispute within 20 days after the dispute arises, the parties agree to submit to arbitration in accordance with and pursuant to the provisions of the Arbitration Act, S.O. 1991, c.17. IN WITNESS WHEREOF Clarington and Port Hope have signed this Agreement. Date: December 6, 2010 Date: tioJ 2-~;~-~,~~ THECARPORATI®N-OF THE MUNICIPALITY THE CORPORATION OF THE MUNICIPALITY OF PORT HOPE We have power to bind the Corporation. We have power to bind the Corporation. SCHEDULE"A" SCHEDULE "A" RIUNIGPRLIIY Oi OMRIIIOTON. 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