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HomeMy WebLinkAbout2001-157 THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON BY-LAW 2001-157 Being a By-law to authorize the execution by the Mayor and Clerk of a Construction and Encroachment Agreement between the Municipality of Clarington and Hydro One Networks Inc. WHEREAS at its meeting on September Ie, 2001, Council approved the recommendations of the General Purpose and Administration Committee that the recommendations contained in Report EGD04-01 be approved; NOW THEREFORE the Council of the Corporation of the Municipality of Clarington hereby enacts as follows: 1. THAT the Mayor and Clerk on behalf of the Municipality are authorized to execute a Construction and Encroachment Agreement with Hydro One Networks Inc. to implement the recommendations contained in Report EGD-04-01. BY-LAW read a first and second time this 1e day of September 2001. BY-LAW read a third time and finally passed this 10`"day of September 2001. John Mu n,Mayor 4Patti . icipal Clerk CONSTRUCTION and ENCROACHMENT AGREEMENT ' THIS AGREEMENT made in duplicate this '-��d day of 2001' . B E T W E E N: HYDRO ONE NETWORKS INC. hereinafter called 'Hydro' of the First Part -and- THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON hereinafter called "CLARINGTON" of the Second Part WHEREAS Hydro by virtue of Instrument 115097 (Newcastle No. 10) reserved and continues to hold an easement as described and set out therein over Part 2 on Plan 1OR-928, and Part 5 on Expropriation Plan 88213, which easement is employed by Hydro to accommodate Hydro's existing 500, 000 volt transmission line; and "WHEREAS CLARINGTON has or is about to construct as part of CLARINGTON'S Graham Creek Bridge And Mill Street Reconstruction, `Newcastle'" being part of it' s Contract No. CL2001-12 (hereinafter called the Project' ) , and CLARINGTON wishes to enter upon the Strip for it's said purpose of construction and installation of the Project within the Strip in such manner as described and set-out in the text and drawings comprising the Plans thereof, and Hydro is agreeable thereto NOW THEREFORE WITNESSES that in consideration of the covenants and agreements herein contained and the lump sum of payment of: ONE THOUSAND, FIVE HUNDRED ($1,500 .00) DOLLARS (plus G.S.T. ) being the Consideration Herein now paid by CLARINGTON to Hydro, the receipt and sufficiency of which is acknowledged, the parties hereto covenant and agree as follows : Construction Terms and Conditions 1. For the purposes of this agreement, the following definitions shall apply: i) "Plan" means the scale plan prepared for CLARINGTON at it's sole expense by it' s consultant Totten Sims Hubicki Associates (their project No. 12-10912) showing the final Project as constructed relative to the limits of the Strip, and Hydro's works and equipment on the Strip as follows: The plan(s) /drawing(s) : Drawing No.1, titled "Existing Conditions And Removals" ; Drawing No.2, titled "New Construction" ; Drawing No.4, titled "Planting Plan And Details" ; and Town of Newcastle Public Works Department drawing No. N-632, titled Standard Horizontal Luminaire Detail" . ii) "Strip" means Hydro' s above noted 500, 000 volt electrical transmission lands, whether or not specifically identified and labelled as such on the Plan; iii) "Road" means Mill Street only as it is intended to be reconstructed so as to encroach within the Strip as described and shown on the Plan; iv) "Project" as noted above includes the supply, construction and installation of all facilities required to provide for the Road, as described and shown on Plan; v) "Commencement of Construction" means the point in time at which CLARINGTON or it' s independent contractors or appointees places any equipment or materials on the Strip or excavates any earth, save and except for equipment and work 2 required and approved of in writing by Hydro beforehand as necessary to carry out preliminary surveying, engineering and soil testing. vi) "Date of Final Approval" means the date at which Hydro provides written notification to CLARINGTON that it has, to Hydro' s satisfaction, conducted the construction to complete the Project. Vii) "Encroachment" means the encroachment of the Project generally and the Road specifically upon the Strip by CLARINGTON. 2. The Project will entail the supply, construction and installation, at the sole expense of CLARINGTON, of the following: i) Supply and installation of all services on and in the Strip associated with the Road including: clearing, grubbing, excavation, filling, compaction, grading, ditches, topsoiling, seeding, landscaping and planting. Not withstanding the text and illustration of the Plan the Road shall be designed and constructed to withstand the following loads a)moving heavy equipment - CS-300 loading according to CSA S6 b)moving mobile cranes set up for work with counterweights in place - 267 KN per tandem axle, dual wheel, 1.53m axle spacing, 360mm tires ii) Other miscellaneous work as may be included as part of the Project from time to time (hereinafter collectively called the "Construction") , save and except pole mounted facilities (not including lighting) for which approval CLARINGTON shall make separate submission to Hydro. 3 . Hydro grants to CLARINGTON exclusively, approval to install the Road strictly in compliance with the covenants, terms and conditions herein below set out. 4. The Parties covenant and agree that this construction portion of this agreement is effective for a One (1) year term commencing July 1, 2000 to and including June 3, 2002 . 5. CLARINGTON shall at all times at it' s sole expense to the satisfaction of Hydro during the term of this Agreement and any permitted extension(s) or renewal (s) thereof: a) be responsible for exclusively and shall and does hereby covenant and agree to indemnify and save harmless Hydro from and against all loss, damage or injury to property or persons whatever and howsoever caused (including loss of life) arising out of the permission hereby granted including without limitation the construction, operation and maintenance of the Road. Notwithstanding anything to the contrary contained in this agreement or otherwise, the provisions hereof shall survive the termination of this agreement and any and all permitted extension(s) or renewal (s) . b) reimburse Hydro on demand for all expenses incurred or paid or payable by Hydro associated with all of its engineering and inspection services respecting its approval of the location and installation of the Road and the subsequent restoration of any disturbed area of the Strip. 6. CLARINGTON covenants and agrees and does hereby undertake at it' s sole expense if required to cv/const .agree 3 a) act on Hydro's behalf as Hydro' s agent to secure the consent of the local Conservation Authority and/or any other authority having jurisdiction in any respect to the Project. b) act on Hydro' s behalf as Hydro' s agent to secure the appropriate change in designated zoning of the Strip to effect the appropriate zoning if required to permit the Project to proceed to realization. 7• CLARINGTON covenants and agrees that prior to Commencement of Construction, CLARINGTON shall at all times at it's sole expense in a manner satisfactory to Hydro a) provide Hydro with and secure its consent to its proposed Construction schedule and not deviate therefrom without written notification and agreement in writing. b) arrange and maintain throughout the term of this Agreement or any extension thereof, the following insurance and pay all premiums during the term of this Agreement or any extension thereof with respect to such insurance: i) insurance of the type commonly called comprehensive general liability insurance which shall include coverage for personal injury, death and property damage, all on an occurrence basis with respect to all operations carried out upon the Strip or in any building and other facilities and CLARINGTON's use and occupancy of the Strip, with limits for any one occurrence or claim not less than $10, 000,000 . or such other amount as may be from time to time the equivalent thereto in real value or purchasing power. Such insurance shall name CLARINGTON and Hydro as insureds and contain a cross liability clause. CLARINGTON agrees that if CLARINGTON fails to take out or keep in force such insurance, Hydro will have the right to do so and to pay the premiums thereof, in which event CLARINGTON shall pay to Hydro the amount paid as premiums. A certified copy of such policy(ies) or satisfactory certificate (s) in lieu thereof shall be given to Hydro for approval on or before the commencement of this Agreement and any extension(s) or renewal (s) . Such insurance policies shall contain an endorsement clause that such policies shall not be cancelled or modified except upon 30 days notice in writing thereof to Hydro. c) comply with all statues, by-laws, regulations, orders and directions of all Governmental and regulatory authorities having jurisdiction, affecting the design, installation and operation of the Road, and provide evidence of such compliance upon request . d) inform all it's contractors of any special conditions in the construction area of the Strip including it being a high- voltage environment and insist on all the contractors and invitees complying with all safety and environmental laws and all rules and regulations applicable thereto and provide Hydro upon request to do so with the contractors ' and invitees ' acknowledgement of said laws, rules and regulations and satisfactory evidence of such compliance. e) make all necessary arrangements to Hydro' s satisfaction, with all relevant Hydro tenants, subtenants, licensees, occupants and other users and adjacent property owners respecting cv/const .agree 4 access routes, temporary work areas, fencing, movement and care of livestock, vehicles and equipment. f) give Hydro a minimum of seventy-two (72) hours' notice prior to Commencement of Construction so that Hydro may, at its sole discretion, may have its representatives present at CLARINGTON'S expense, to ensure conformity with Hydro's terms and conditions of Construction. 8. During construction of the Road CLARINGTON shall at all times, at it' s sole expense: a) obtain confirmation and approval in writing of all deviations to field approvals of the Road previously given by Hydro' s Inspectors. b) not erect or allow any structures, erections, buildings, installations, works, work shacks, materials, equipment, garbage, refuse, snow, ice, soil, to be erected, built, installed, accommodated, completed, stored, parked fuelled or located on the Strip or vehicles on the Strip except in those places or in such manner as shall be approved by Hydro's inspectors and subsequently confirmed satisfactory in writing. Further CLARINGTON shall not erect nor allow to be erected any aerial service lines including electrical power, telephone, cable television or other similar service within the Strip without prior written consent of Hydro. c) erect satisfactory temporary barriers on access routes and make all reasonable efforts to prevent use of these routes by private or commercial vehicles. d) erect satisfactory temporary perimeter barriers, set 3 meters out from, and around the base of all transmission towers and poles on the Strip to restrict all equipment and material from within the fenced area(s) , and remove such fencing immediately after the Project is completed. e) participate in and attend from time to time as requested, all Hydro arranged co-ordination meetings with representatives of CLARINGTON' s contractors, if required. f) comply satisfactorily with all instructions of Hydro's inspectors from time to time including without limitation, instructions to halt construction if, in the opinion of such inspectors, Hydro' s works from time to may be interfered with, or the safety of the public or such works may be in danger, or the Project is not being constructed in accordance with Hydro' s terms and conditions of Construction. g) contact Hydro immediately when Hydro' s buried counterpoise (ground wire (s) ) are exposed, damaged or cut through during Construction. h) include as part of the Project, provision for 2, 6m wide driveways for Hydro vehicular and equipment access to Hydro's corridor extending from each side of Mill Street as reconstructed into Hydro's corridor, which access driveways shall be properly designed and constructed, and adequately surfaced, and have no greater that 3 :1 slopes; i) during all blasting operations, ensure ground vibrations do not exceed a peak particle velocity rate of 50mm per second, and shall further ensure that appropriate blast-mats are in place during all blasting operations within 61m of any transmission line to eliminate damage or injury to Hydro's plant and equipment from blasted flyrock. cv/const .agree S 9• After Construction and completion of the Project, CLARINGTON shall, at all times at it' s sole expense and to the satisfaction of Hydro: a) advise Hydro, with seventy-two (72) hours prior notice in writing, that all Construction on the Land has been completed and ready for Hydro's inspection. b) repair and restore all fences, gates and improvements (including, without limitation, field tiles and wells) to a condition equivalent to that existing prior to installation of the Road. c) restore all earth, topsoil and ground cover disturbed by Construction and, if necessary or requested, replace destroyed or damaged trees and shrubs, and do all requested or necessary grading to ensure soil and slope stability to the satisfaction of Hydro and guarantee Landscaping and Plantings for a subsequent term of three (3) years. d) compensate Hydro tenants on demand for any damages, such as crop loss or injury to livestock, caused by CLARINGTON, its servants or agents as a result of the construction, operation and maintenance of the Road. e) pay Hydro all its costs of replacing, relocating or repairing all or any of Hydro's works, where Hydro has incurred these costs because of the Project and Construction or presence of the Road and/or the entering into of this Agreement. f) send to Hydro for its records, satisfactory copies of properly executed final releases of claims for damages executed by Hydro tenants, subtenants, licensees, occupants and other users. 10. CLARINGTON acknowledges, covenants and agrees that if there is insufficient room within the Strip for the Road or appurtenances thereto Hydro is under no obligation to provide alternate lands or compensation to accommodate the Road and Hydro is and shall be released of any and all liability to CLARINGTON of any kind whatever as a result or in connection therewith. 11. Any renewal of this construction portion of this Agreement and the terms and conditions associated therewith, are at the sole discretion of Hydro. Request for renewal must be submitted in writing by CLARINGTON to Hydro at least two months prior to the expiration of the agreement. Encroachment terms and Conditions 13. a) CLARINGTON and Hydro covenant and agree that the Agreement shall and does serve as a binding and irrevocable encroachment agreement, accommodating the Encroachment of the Road as part of the Project within the Strip for and during the intended operational life of the Road described and shown on the Plan; b) Hydro hereby acknowledges the intention of the said Encroachment of the Road and hereby agrees that CLARINGTON shall be permitted to maintain the Road in the form and position described and shown on the Plan, provided that no portion of the Road and/or Construction shall be permitted to extend further onto the Strip than as described and shown on the Plan; and provided that the Encroachment will not interfere with any Hydro works on the Strip or any future changes or additions made thereto. If the Encroachment does in the opinion of Hydro, acting reasonably, interfere with any Hydro works or additions thereto on the Strip, then the Agreement may be terminated at the option of Hydro. cv/const .agree 6 c) CLARINGTON covenants that it shall execute any further assurances as Hydro in it's sole discretion may from time to time require with regard to the Encroachment. 14. CLARINGTON shall not perform nor allow to be performed any act which shall cause further encroachment over or upon the Strip and without limiting the generality of the foregoing, CLARINGTON shall: a) not increase the size nor alter the position of the Road, nor erect any erection or temporary or permanent structure of any nature whatsoever, on or upon the Strip. b) not use any equipment on the Strip closer than 4.572 metres (15 feet) to all Hydro electrical wires. 15. The Road and all other property of CLARINGTON at any time within the Strip shall be at the sole risk of CLARINGTON and Hydro shall not be liable for any loss or damage thereto howsoever occurring and CLARINGTON fully releases Hydro from all claims and demands in respect of any such loss or damage, except and to the extent to which such loss or damage is caused or contributed to by the neglect or default of Hydro, its servants or agents. 16. CLARINGTON shall in respect of the Encroachment assume all liability and obligation for any and all loss, damage or injury to property or persons (including loss of life) which would not have happened but for the Encroachment or anything done or maintained by CLARINGTON under this Agreement or intended so to be, and CLARINGTON shall at all times indemnify and save harmless Hydro from and against all such loss, damage, or injury and all actions, suits, proceedings, costs, charges, damages, expenses, claims or demands arising therefrom or connected therewith; provided that CLARINGTON shall not be liable under this paragraph to the extent to which such loss, damage, or injury is caused or contributed to by the neglect or default of Hydro, its servants or agents. 17. The rights and easement set out and described in the easements reserved in Instruments No. 115097 are hereby ratified and confirmed. is. The provisions hereof shall enure to the benefit of the undersigned and be binding upon their respective successors and assigns. 19. Time shall in all respects be of the essence hereof, provided that the time for doing or completing any matter provided for herein may be extended or abridged by an agreement in writing signed by the parties SIGNED, SEALED AND DELIVERED THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON Per (name & p sition) John Mutton, Mayor ) Per *pi Patti L Barrie, Clerk ) ) HYDRO ONE -NTin�ORR INC. ) f J Per r erreest, Senior Rea Estate Administrator, Real Est a Services "I have authority to bind CLARINGTON" cv/const .agree