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HomeMy WebLinkAboutWD-026-01 .' " , " " ::.:' THE CORPORATION OF THE MUNICIPALITY OF CLARlNGTON Meeting: REPORT GENERAL PURPOSE AND ADMINISTRATION COMMITTEE File #/l121 May 22, 2001 Res. dlli31P'-o1 Date: Report No.: WD-26-0l By-Law # Subject: HYDRO ONE - INSTALLATION OF TEMPORARY STORAGE FACILITY, MARTIN ROAD SOUTH OF IDGHWAY NO. 401 IN BOWMANVILLE Recommendations: It is respectfully recommended that the General Purpose and Administration Committee recommend to Council the following: 1. THAT Report WD-26-0l be received and approved; 2. THAT Council pass a by-law to authorize the execution ofthe Licence Agreement between the Municipality, Hydro One and Hydro One Telecom Inc. (HOT) contained in Attachment No.2 and that the Licence Agreement executed on behalf of the Municipality be delivered to Hydro One and HOT after Hydro One has applied for the closure and conveyance to it of the portion of the unopened Martin Road allowance between the South Service Road and the northerly limit of the CN Rail right-of-way; and 3. THAT a copy of this report be sent to Yuri Hurninilowycz of Hydro One Telecom Inc. REPORT 1.0 ATTACHMENTS No.1: No.2: No.3: Sketch showing recommended licence area Licence Agreement Proposed authorizing by-law " .. ," REPORT NO. WD-26-01 PAGE 2 2.0 BACKGROUND 2.1 Hydro One Inc. (''Hydro One") owns a parcel ofland which on its south abuts the northerly limit of the CN Rail right-of-way, and on its west abuts the easterly limit of an unopened portion of the Martin Road allowance south of the South Service Road. Properties on the southerly side of the South Service Road which abut the easterly and westerly limits of the unopened portion of the Martin Road allowance are not in the ownership of Hydro One or HOT. 2.2 HOT is a company which is associated with Hydro One. On behalf of Hydro One, HOT proposes to construct a building to shelter fibre optics equipment on Hydro One's parcel. Also on behalf of Hydro One, HOT has requested permission from the Municipality to use part of the unopened portion of the Martin Road allowance from the South Service Road to the Hydro One Parcel for access to the Parcel. 2.3 On behalf of Hydro One, HOT intends to apply to Council for the closure and conveyance to Hydro One of the portion of the unopened Martin Road allowance between the South Service Road and the north limit of the CN Rail right-of-way. Since persons other than Hydro One own lands which abut the unopened portion of the Martin Road allowance between the South Service Road and the CN Rail right-of-way, Council may decide at the hearing under the Municipal Act to consider the proposed closure and conveyance, that HOT's application on behalf of Hydro One should not be granted. In any event, Council's discretion to deal with submissions made at the hearing cannot be fettered. 2.4 The Director of Planning and Development has advised that Hydro One and HOT as successors of Ontario Hydro are exempt from the provisions of the Municipality's Zoning By-law (By-law 84-63, as amended) by section 3.17 of the By-law. Consequently, frontage on a public street or via a private right-of-way to a public street is not required before a building permit can be issued for the construction of a proposed building by HOT on behalf of Hydro One. However, site plan approval will be required in respect of the development of " REPORT NO. WD-26-01 PAGE 3 the Hydro One Parcel and the proposed private driveway. Site plan approval would conditionally require the applicant to comply to the provisions of the Licencing Agreement. 2.5 The provision of fibre optic service to lands in the Municipality is of great significance to the economic development of the Municipality and the circumstances presented by Hydro One's and HOT's application are exceptional. 3.0 REVIEW AND COMMENT 3.1 The Public Works Department recommends that the Municipality enter into a licence agreement with Hydro One and HOT providing for payment to the Municipality ofanominal consideration and also providing for the following: . the licence to HOT on behalf of Hydro One of the part of the unopened portion of the Martin Road allowance from the South Service Road to a point approximately 50 feet from the north limit of the eN Rail right-of-way which part is shown on the sketch contained in Attachment No. 1 ("Licenced Area") for the purpose of constructing and maintaining on the Licenced Area a private driveway at least 20 feet wide to provide access to the Hydro One Parcel to Hydro One, HOT and their respective employees, agents, work-persons, invitees and contractors, provided that the licence shall terminate on the earlier to occur of the day on which the Municipality conveys the portion of the unopened Martin Road allowance from the South Service Road to the CN Rail right-of- way to Hydro One, and the day on which Council resolves to layout and improve the portion of the unopened Martin Road allowance in question as a public highway. . the Licenced Area shall be used only as a private driveway from the South Service Road to the Hydro One Parcel by Hydro One, HOT and their respective employees, agents, work-persons, invitees and contractors to the satisfaction of the Director of Public Works. " REPORT NO. WD-26-01 PAGE 4 · Hydro One and HOT shall maintain the private driveway on the Licenced Area in good repair at all times and at its expense so that it may be used by the Municipality's Fire Department vehicles to access the Hydro One Parcel. . Hydro One and HOT shall indemnify and save harmless the Municipality against all costs, including reasonable legal costs, damages and liabilities that the Municipality may incur as a result of the construction, repair, maintenance and use of the private driveway on the Licenced Area, and the use of the portion of the unopened Martin Road allowance between the South Service Road and the CN Rail right-of-way. . Hydro One and HOT shall obtain and maintain comprehensive general liability insurance in the amount of$5,OOO,OOO.OO, naming the Municipality as a party insured, issued by an insurer acceptable to and containing the terms and conditions satisfactory to the Municipality's Treasurer. Hydro One and HOT shall provide proof of such insurance to the Municipality's Treasurer. · On behalf of Hydro One, HOT shall enter into a site plan agreement with the Municipality respecting the Hydro One Parcel which shall include the Licenced Area on which the private driveway is to be constructed dealing with matters considered appropriate by the Directors of Planning and Development and Public Works. 4.0 CONCLUSION 4.1 It is recommended that Council pass a by-law to authorize the execution of the Licence agreement between the Municipality, Hydro One and HOT contained in Attachment No.2 and that the Agreement be delivered by the Municipality to Hydro One and HOT after application is made by Hydro One for the closure and conveyance to it of the portion of the " REPORT NO. WD-26-01 PAGE 5 unopened Martin Road allowance between the South Service Road and the northerly limit of the CN Rail right-of-way. Respectfully submitted, Reviewed by, ~J~ Stephen A. Vokes, P.Eng., Director of Public Works DH/SA Vice 5/16/01 { Fr lin Wu, Chief Administrative Officer Pc: Yuri Hurninilowycz Hydro One Telecom Inc. 483 Bay Street 13th Floor, North Tower Toronto, ON M5G 2P5 .~~. ~ SUBJECT SITE I LOT 16 LOT 15 L \ I II BASELINE ROA WE T LOT 14 I LU Cl <( o ~ z w w ~ o Cl <( o ~ Z I- ~ <( LIMIT OF LICENSED AREA :'{ /lr0\ ~\G~~~ s€ \j\Ct. SO\}\~ Op..\) .. :. : .: .: .....: .: .: .. . ...... Cl <( o ~ (.f) Z o ~ >- (.f) HYDRO ONE PROPERTY I -J.{- / Cl <( o ~ >- ...J ~ W > <( 3: DAlE: MAY, 2001 DRAWN BY : E.L REPORT No. ATTACHMENT No. wo- 26-01 1 , THIS LICENCE AGREEMENT made as ofthe 22nd day of May, 2001. BETWEEN: HYDRO ONE INC. (hereinafter referred to as "Hydro One") OF THE FIRST PART - and - HYDRO ONE TELECOM INC. (hereinafter referred to as "HOT") OF THE SECOND PART - and- THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON (hereinafter referred to as "Municipality") OF THE THIRD PART WHEREAS: A. HOT, on behalf of Hydro One, has applied for a building permit to construct and place a fibre optics communication shelter (the "Work") on lands owned by Hydro One in the Municipality more particularly described as Block 4, N 661 in the Municipality ofClarington as set out in building permit application number 01-0215 ("Hydro One Parcel"); B. In order to access the Work, HOT and Hydro One require access over and across a part of the lands more particularly described as the portion of the unopened Martin Road allowance between Lots 14 and 15, Broken Front Concession, in the Municipality ofClarington and between the south limit of the South Service Road and the north limit of the CN Rail right-of-way ("Unopened Allowance"). The access will be provided via a proposed private driveway twenty (20) feet wide to be located on part of the Unopened Allowance from the South Service Road to a point approximately fifty (50) feet north from the north limit of the CN Rail right-of-way. The private driveway is shown on the sketch contained in Schedule "1" hereto ("Licenced Area"); C. Title to the Unopened Allowance including the Licenced Area is vested in the Municipality in fee simple by operation of statute; ATTACHMENT NO.: 2 REPORT NO.: WD-26-01 ~ -2- D. HOT, on behalf of Hydro One, has applied to the Municipality for the closure and conveyance to Hydro One ofthe Unopened Allowance pursuant to the Municipality's Closure and Conveyance policy; and E. The parties have agreed to enter into this Agreement to permit HOT and Hydro One to construct a private driveway on and to use the Licenced Area for access to and from the Work (the "Purposes"). WITNESSETH THAT for TEN DOLLARS good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Municipality licences to Hydro One and HOT and Hydro One and HOT licence and take from the Municipality, subject to the terms and conditions set forth herein, the Licenced Area for the Purposes from the date first stated above, until the earlier ofthe date on which (I) the Unopened Allowance is conveyed to Hydro One, and (ii) the Council of the Municipality resolves to layout and improve as a public highway the portion of the unopened Martin Road allowance between the South Service Road and the CN Rail right-of-way in the Municipality: 1. Hydro One, HOT and their respective employees, contractors, agents, work-persons and invitees (collectively, the "Licencees") shall use the Licenced Area only for the Purposes, which use expressly includes their right to enter upon the Licenced Area at all times, with all necessary machinery, materials, equipment and vehicles, and to pass and re-pass thereon for the purposes of ingress to and egress from the Hydro One Parcel. 2. (a) Hydro One and HOT at their expense and to the satisfaction of the Municipality's Director of Public Works, shall construct, maintain and keep in good repair the private driveway on the Licenced Area to a width of twenty (20) feet so that at all times it may be used by the Municipality's Fire Department vehicles to access the Hydro One Parcel. They shall also install and maintain signs at locations satisfactory to the Municipality's Director of Public Works indicating that the driveway is a private driveway, which is not maintained by the Municipality and is not a public highway. (b) The Municipality shall have no responsibility or obligation of any nature whatsoever with respect to the repair or maintenance of the Licenced Area, which, for the sake of clarity, and not to detract from the generality ofthe foregoing, absolves Clarington from having to plow, pave, or otherwise repair and maintain the private driveway on the Licenced Area. 3. Hydro One and HOT shall indemnify and hold harmless the Municipality from and against all losses, costs and expenses including reasonable legal expenses, claims, demands and actions from or on account of all damages, losses or injuries arising as a result of the construction, maintenance, repair and use ofthe private driveway to be constructed on the Licenced Area or the use of any other part of the Unopened Allowance by the Licencees or by any other persons, provided that Hydro One and HOT shall not be liable to the Municipality for any loss, costs, expenses, claims, demands and actions which may be suffered or sustained by the Municipality by reason of or arising in , y -3- consequence of any act or omission by the Municipality or any person in law for whom the Municipality is responsible. In particular, but without limiting the generality of the foregoing, Hydro One and HOT shall remove from title to the portion of the unopened Martin Road allowance between the South Service Road and the eN Rain right-of-way any liens filed pursuant to the Ontario Construction Lien Act within thirty (30) days of written notice being given to them by the Municipality's Director of Public Works which requires them to do so. 4. Hydro One and HOT shall provide, at their expense, and keep in force insurance ofthe type commonly called "comprehensive general liability insurance", which insurance will be with insurers acceptable to the Municipality's Treasurer, and shall include coverage for personal injury (including death), property damage and cousequential damage all on a "per occurrence" basis with respect to all construction, installation, maintenance, repair and use carried on upon the Licenced Area and the use of the Unopened Allowance by Hydro One, HOT and their respective employees, agents, work- persons, invitees or contractors, with limits for anyone occurrence or claim of not less than Five Million Dollars ($5,000,000.00). Such insurance shall name the Municipality as an insured party and shall contain a cross-liability clause. Such insurance shall provide and the insurer shall agree that such policy may not be cancelled or its coverage reduced without thirty (30) days' prior written notice to the Municipality. Hydro One and HOT shall keep on deposit with the Municipality a certificate of such insurance sufficient to show at all times the current status of such insurance as required under this section and without limiting the generality of the foregoing, Hydro One and HOT shall furnish the Municipality proof of the renewal or replacement of every such policy at least one month prior to the expiry of such policy. If and whenever Hydro One and HOT fail to comply with the foregoing, the Municipality upon at least fifteen (15) days' prior written notice to Hydro One and HOT or such shorter period as is available prior to the expiry of the insurance policy may effect such insurance for the benefit ofthe Municipality, Hydro One and HOT jointly and, ifthe Municipality does so, any premium paid by it shall be recoverable from Hydro One and HOT on demand. 5. Prior to constructing any building or structure on the Hydro One Parcel, HOT on behalf of Hydro One, shall enter into a site plan agreement to be registered against the title to the Hydro One Parcel respecting the Hydro One Parcel and the Licenced Area dealing with matters considered to be appropriate by the Directors of Planning and Development and Public Works. 6. Hydro One and HOT acknowledge and agree that the Municipality has authority to enter into this Licence Agreement, that every provision hereof is authorized by the law and is fully enforceable by the parties, and that this Agreement is made by the Municipality in reliance on the acknowledgement and agreement of Hydro One and HOT as aforesaid. 7. Time shall be ofthe essence of this Licence Agreement. 8. This Licence Agreement shall enure to the benefit of and be binding on the Parties and their respective successors and assigns. . " -4- 9. If any notice or other document is required to be or may be given by either party hereto to the other or by any official of the Municipality to Hydro One and HOT under this Licence Agreement, such notice shall be transmitted by telefax or mailed by prepaid post or delivered to: Hydro One Inc. * * * * Phone No.: (905) Fax No.: (905) HOT: Hydro One Telecom Inc. * * * Phone No.: (905) Fax No.: (905) The Municipality: The Corporation of the Municipality ofClarington 40 Temperance Street Bowmanville, Ontario LlC 3A6 Attention: Treasurer Phone No.: Fax No.: (905) 623-3379 (905) 623-0608 or such other telefax number or address of which either party has notified the other party in writing. Any such notice telefaxed or mailed or delivered shall be deemed good and sufficient notice under the terms ofthis Licence Agreement and iftelefaxed or delivered prior to 4:30 p.m. on any business day (excluding Saturdays, Sundays and statutory holidays) shall be deemed to have been received at the time of delivery or transmission and if mailed by pre-paid registered mail, it shall be deemed to have been received on the third business day (excluding Saturdays. Sundays and statutory holidays) following the mailing thereof. Notwithstanding the foregoing, in the event that it may be reasonably anticipated that due to Force Majeure any notice will not be received within the time limit set out above, then such notice shall be sent by an altemate means of transportation which is may reasonably be anticipated will cause the notice to be received reasonably expeditiously by the addressee. . , ~. -5- IN WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto as of the day and year first written above. THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON Mayor: John Mutton Clerk: Patti L. Barrie HYDRO ONE INC. Per: Name: Title: Per: Name: Title: I have authority to bind the corporation. HYDRO ONE TELECOM INC. Per: Name: Title: Per: Name: Title: I have authority to bind the corporation. RIHEFFERONlCLARINGlHYDROILICENCE.AGR . . !: '. THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON BY-LAW 2001- Being a By~ law to authorize the execution by the Mayor and Clerk of a Licencing Agreement between the Municipality of Clarington and Hydro One Inc. and Hydro One Telecom Inc. WHEREAS at its meeting on May 22"", 2001, Council approved the recommendations of the General PU1]Jose and Administration Committee that the recommendations conlained in Report WD-26-00 be approved; NOW THEREFORE the Council of the Corporation of the Municipality ofClarington hereby enacts as follows: 1. THAT the Mayor and Clerk on behalf of the Municipality are authorized to execute a Licencing Agreement with Hydro One Inc. and Hydro One Telecom Inc. to implement the recommendations contained in Report WD-26-00. BY-LAW read a first and second time this 29" day of May 2001. BY-LAW read a third time and finally passed this 29. day of May 2001. John Mutton, Mayor Patti L. Barrie, Municipal Clerk ATTACHMENT NO.: 3 REPORT NO.: WD-26-01