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