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HomeMy WebLinkAboutEGD-035-04 . , CI!J!-IDgron REPORT ENGINEERING SERVICES Meeting: GENERAL PURPOSE AND ADMINISTRATION COMMITTEE Date: Monday, June 21,2004 Report #: EGD-35-04 File#: ~$~: c...pp'3.;wot.! By-Iaw#: ;:2O)'-f-/f,Lf c2C:::04 -1(,':5 Subject: CLARINGTON/OSHAWA BOUNDARY ROAD AGREEMENT CLARINGTON/SCUGOG BOUNDARY ROAD AGREEMENT RECOMMENDATIONS: It is respectfully recommended that the General Purpose and Administration Committee recommend to Council the following: 1. THAT Report EGD-35-04 be received; 2. THAT the Mayor and Clerk be authorized to execute the Boundary Road Agreement between the Municipality of Clarington and the City of Oshawa; 3. THAT the Mayor and Clerk be authorized to execute the Boundary Road Agreement between the Municipality of Clarington and the Township of Scugog; 4. THAT Council pass the appropriate by-laws confirming each of the agreements; and 5. THAT the Municipality's solicitor register the agreements and the by-laws in the proper Land Registry Office. jf{f~tJ_ O~~ Submitted by: Anthony Cannella, C.E.T. Reviewed by: Franklin Wu, Director of Engineering Services Chief Administrative Officer ASCfLJBfjw June 10, 2004 CORPORATION OF THE MUNICIPALITY OF CLARINGTON 40 TEMPERANCE STREET, BOWMANVILLE, ONTARIO L 1C 3A6 T 905-623-3379 F 905-623-9282 720 REPORT NO.: EGD-35-04 PAGE 2 1.0 BACKGROUND The purpose of this report is to seek Council approval to enter into a Boundary Road Agreement with the City of Oshawa and into a Boundary Road Agreement with the Township of Scugog. The Municipality had an agreement with each of Oshawa and Scugog; however, these agreements have both expired. 2.0 COMMENT 2.1 Clarington/Oshawa Agreement The Municipality of Clarington and the City of Oshawa abut one another along Townline Road. While parts of this road are under the jurisdiction of the Region of Durham, and parts are unopened, the majority of the road is the subject of the now-expired Boundary Road Agreement. Similar to the previous agreement, the new agreement outlines each municipality's obligations with respect to maintenance, repair, street lighting, construction and development. The content of the previous agreement and the proposed agreement is similar, but the document has been updated with respect to verbiage, with respect to the new Municipal Act and with respect to legalities and claims. The only change in jurisdiction is that the stretch of Townline Road from Taunton Road to 0.19 km north of Concession Road 6 will now become the responsibility of Oshawa while that part from the 9th Concession to the 10th Concession will now become the responsibility of Clarington. This is strictly for operational reasons which are mutually beneficial. 2.2 Clarington/Scugog Agreement Clarington and Scugog adjoin along Boundary Road. Parts of this road are unopened, parts are summer maintained only and parts are open and maintained year round. The new agreement outlines the obligations of each municipality and has been updated with respect to verbiage and the new Municipal Act. There has been no change in jurisdiction for each road authority except for one 50 metre stretch of summer maintained road. 721 REPORT NO.: EGD-35-04 PAGE 3 2.3 Input to the Preparation of the Agreements Engineering and Operations staff of each municipality have met, reviewed and revised (where agreed) the draft documents. Legal counsels of each municipality have collaborated on the final draft. All parties propose a ten year term for the new agreements. 3.0 CONCLUSION The Boundary Road Agreements between the Municipality of Clarington and City of Oshawa and between the Municipality of Clarington and the Township of Scugog have each expired. There is a need for current agreements to be put in place in order to clearly outline jurisdiction, duties and responsibilities of each road authority as they pertain to the boundary roads. Accurate legal descriptions of the segments of the road allowances and the corresponding jurisdictions should be registered with the appropriate Registry Office along with the confirming by-law. Attachments: Attachment No. 1 - ClaringtonfOshawa Boundary Road Agreement Attachment NO.2 - ClaringtonfScugog Boundary Road Agreement Attachment NO.3 - Confirming By-laws Interested parties to be advised of Council's decision: City of Oshawa Township of Scugog 722 THIS AGREEMENT made in triplicate as of the _ day of ATTACHMENT NO.: 1 REllOOlH NO.: EGD-35-04 BETWEEN: THE CORPORATION OF THE CITY OF OSHAWA (herein referreo 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. (I) 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 para9raphs 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 723 Page 1 of8 C:\Documents and Settings\lb06\Local Settings\Temporary Internet Files\OLK7F\oshawaclaringlontoYmline5.doc Revised 0910810312:49 PM 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 Clarington. (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 north em 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 Towniine Road but does not include Maintenance and Repair. (I) "Construction Costs" means all costs 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) "Deveiopment" 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. U) "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 Oshawa, 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, 724 Page 2 of 7 (:\DocumenlS and Setlings\lb06\Local Scttings\Temporary Internel Files\OLK7F\oshawaclaringtontownlineS.doc Revised 09f{l8l03 L2:49 PM pnming crack sealing, grass and weed cutting, sweeping and fiushing, 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 0 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 southern 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 ofthis Agreement. 1.05 References to federal or provincial statutes or regulations or municipal by-iaws 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, 1998,8.0.1998, 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 10'" 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 \ I 3.01 Oshawa covenants and agrees that it shall: \ , , ! (a) (b) Maintain and Repair to their full width Oshawa Roads; 725 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 Page 3 of 7 C:\Documents and Scttings\lb06\LocaI Senings'ITemporary Internet Files\OLK7F\oshawaclaringtontownlineS.doc Revised 09/0810) 12:49 PM 726 (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 an sing 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 regraveiling, 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 Towniine 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 Deveiopment, 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 oflhe 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: Page 4 of? C:\Documents and SClting:s\lb06\Local Scttings\Temporary Internet FileslOLK7F\oshawaclaringtOTltownline5.doc Revised 0910810312:49 PM 727 The Corporation of the Municipality of Clarington Attention: Director of Engineering Services 40 Temperance Street Bowmanville, ON l1 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 1H 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 ofthis Agreement and all the obligations contained herein. 7.03 The Municipalities shall jointly determine 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 determination is being made. In the event that the Municipalities do not jointly determine 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 Arbftration 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 ofthe 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 understandin9, 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. Page 5 of7 C;\Documents and Settings\lb06\Local Settings\Temporary IntemctFiles\OLK7F\oshawaclaringt011townline5.doc Revised 09/08103 12:49 PM 7.08 No supplement, amendment or waiver of or under this Agreement shail be binding unless executed in writing by the Municipality to be bound thereby. No waiver by a Municipality of any provision of this Agreement shail 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 duiy attested by the proper signing officers in that behalf. THE CORPORATION OF THE CITY OF OSHAWA MAYOR cis CLERK THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON MAYOR cis CLERK 728 ! Page 6 of 7 C:\Documents and Seltings\lb06\Local Settings\Temporary lntemctFiles\OLK7F\oshawaclaringtontownlineS.doc Revised 09/08/03 12:49 PM 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 "B" ("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 approximateiy 0.22 km south of Regional Road 3 (Columbus Road East in Oshawa) northerty 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 "e" ("Durham Roads") Those parts of Townline Road: (a) from Regional Road 22 (Bloor Street in Clarington) northerty 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. 729 Page? of? C:\Documents and Settings\lb06\Local Settings\TeffillOl'11ry IntemetFiles\OLK7F\oshawaclar'ingtontoWTlline5.doc Revised 09108103 12;49 PM ScugogBouooaryRd SCHEDULE B (NORTH HALF) ,~ ',', BOUNDARY ROAD AGREEMENT ~~ " THECITYOFOSHAWA~~7~I~ALlTYOFCLARINGTON ,"-? ('! ~/"'OC"''' l ~' J'~ ! ,11,1 ~ ~>,/i '~ nr' CITY OF OSHAWA * MUNICIPALITY OF CLARING;ON '-.~ .11 "' · ' ,,' 'I . 'I' I.. ~ II ..' / I 9/ i, 'i I '., ~ I I<i. . ;' ~ " (', ' '5 I ~ ~___,/'.J l'l\/ \~ ( I '111 n l' i.1 ~"'. Iii ~i ~ \. , '~..' II ( ) ~. ,I ~'R" . \,J-- ? ~ .~~~ ~ ,~., I~b ~, 8 (I ; ~ ,/.. " II / ~ iil .." ~ ...,..~....... w I r ....." , -@.- I Reg. Rd. 3 ~ . Conc.Rd,7 ,I CI!J!igglOn ~ ~ I i LEGEND r l ~ I , I \~ I City of Oshawa Responsibility .............. Municipality of Clarington Responsibility ........................... Regional Road Reg.Rd, 4 730 Y.,i i,ll .1 ~ ,I J H .. I / ( \ h I ~.Ir' tl /1 E / / ~ !I I' I, ; I (.; 1\ t' I~ I :I;\~ r', / ',I \. ,I / I '[,11 ': \) J. \ (1t \ I f! ! c.Rd.6 ~ l. ) 'rs I \ \- ! ~ f I . I \ r. \ , . ~k~) l. I i f jJ , i i \ . , ?.. . , lB . \ ~~ \'I~I::::" ~ I j ; I, I I I ) ~I ~ ti~ I ~i' '\ ~ " .I i -'" :1/ J c 1 ~/"'(/?~~~ )' - 1 iZ P'bb""""'; : it -'^""'~ .-' I / if= tf ~i ~j 1;1' ) ,/ \ / '. ,.. /' 've ,J f./ ~i'l (tl ~ !, 9 'j I,I.'O:y.// .~, >J ~.' /' '.\" 1 ~~,.-- J ./ "I /- Y \ 'II,\, t~( / II/I'LL ~~ :/' "7 )~ ~r --------= ~ r__/----- I ?'~- c./ SCHEDULE B (SOUTH HALF) BOUNDARY ROAD AGREEMENT BETWEEN THE CITY OF OSHAWA & THE MUNICIPALITY OF CLARIN.GTON -' "'", }' , , --- CITY OF OSHAWA j .........---' T<..O, . r / ,i"'imer ~ )l/~UNICIPALITY OF CLARIN~r,r:,N I'j a::: '.----1: ~ }~.-"., u::: ,""'-" .~~ \) J .~ / ' :! ... .. Strohl Rd " ~ f, -I- r--/ J --@- I 1 ~ 1 ~ . ,.- -0 .. :-1 ./"j--~ r--I J ./ I , I - \ i! i' Clf}!:lllgron r"" \ .~ I \! . )--\ 'I \ . I \ I '~~I" il "'-iI' ",,' . : .:: E;.' / I ~ I ' . \ " " \ LEGEND City of Oshawa Resonsibility Ba~lineRd. ....... ......-r1I'"T"" Municipality of Clarington Responsibility ...--rr. ... '" ... ... ... .. ,. ... Regional Road 7~H y \ \ \1 ,I .. ~ I I ! )/ ( I I , \ i ~ I J P ~ ATTACHMENT NO.: 2 REPORT NO.: EGD-35-04 TillS AGREEMENT made in triplicate as of this day of ,2004. BETWEEN: THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON, (herein referred to as "' Clarington") -and- THE CORPORATION OF THE TOWNSillP OF SCUGOG, (herein referred to as UScugog") WHEREAS: (A) Section 11 of the Mnnicipal Act provides that by-laws may be passed by the councils of all single tier municipalities respecting highways. (B) And whereas Section 28 of the Municipal Act provides that a municipality has joint jurisdiction over all highways over which it had jurisdiction on December 31, 2003. (C) And whereas Section 29 ofthe Municipal Act provides that the corporations of adjoining municipalities, having joint jurisdiction over boundary roads, may enter into an agreement for the maintenance and repair of any highway forming the boundary between such municipalities under which each municipality may agree 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. (D) Clarington and Scugog are adjoining municipalities. (E) Boundary Road is a road forming part of the boundary between the northern limit of Clarington and the southern limit of Scugog. (F') By agreement dated November 29, 1993 between The Corporation of the Municipality of Clarington and The Corporation of the Township of Scugog, provision was made for the maintenance and repair of that part of Boundary Road forming part of the boundary between Clarington and Scogog Township. (G) By this Agreement, Clarington and Scugog 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 Boundary Road forming part of the boundary between Clarington and Scugog. (H) And whereas Subsection 29(4) of the Mnnicipal Act, provides for the registration of this agreement in the proper registry office for the area in which the highway is located. 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: l... INTERPRETATION 732 IIay. 2 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) "Bona Fide Farme~' means a member in good standing with the Ontario Federation of Agriculture. (C) "Boundary Road" is a road forming part of a boundary between the northern limit of Clarington and the southern limit of Scugog, including all intersections with local roads, as more particularly described in Schedule "A" and more particularly depicted in Schedule "B". (D) "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. (E) "Clarington" means The Corporation of the Municipality of Clarington, (F) "Construction" includes, but is not limited to, reconstruction, graveling, paving and excavating and includes the installation of engineered fill, subdrains, granular base, concrete curb and gutter, concrete sidewalk, guiderails,' topsoii, sod, street trees, storm sewers, catch basins, 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 Boundary Road but does not include Maintenance and Repair. (G) "Construction Costs" means all costs relating to Construction and includes, but is not limited to, 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) "Developing Municipality" means the Municipality in which a Development is proposed or occurs, (I) "Development" means any work on or to land or buildings, including redevelopment, which requires one of the following actions: vii. the passing of a zoning by-law, or an amendment to a zoning by-law under section 34 of the Planning Act; viii. Act;. the approval of a site plan under section 41 of the Planning 733 I1u'Y" 3 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 section 50 of the Condominium Act; or viii. the issuing of a permit under the Building Code Act, 1992, in relation to a building or structure. (J) "Maintain and Repair" includes, but is not limited to, 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 Scugog or Clarington, as the case may be, including, without limitation, ditching, culvert replacement, curb replacement, guiderail repair, pavement marking, reg ravelling, repaving, emulsion resurfacing, asphalt patching, gravel patching, shoulder maintenance, grading and seasonal maintenance, maintenance of existing road closure gates, sewer and catchbasin cleaning, priming crack sealing, grass and weed cutting, sweeping and flushing, traffic and regulatory sign maintenance, winter control measures litter control, tree trimming and removal and street lighting maintenance, (K) "Municipality" means Clarington or Scugog, as the case may be. (L) "Scugog" means The Corporation of the Township of Scugog. (M) "Summer Maintenance" means one (1) spring grading and one (1) fall grading undertaken at the request of a Bona Fide Farmer, as well as the picking up of debris, once annually, to be coordinated by the appropriate authorities on a cost sharing basis (for the debris pick up activity only). (N) "Term" means the term ofthis Agreement as specified in section 2.01 of this Agreement. 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, 8,0, 1992, c. 23 734 b. "Condominium Act" means the Condominium Act, S.D. 1998 c. c. "Municipal Act" means the Municipal Act, S.D. 2001 c.25 d. "Planning Act" means the Planning Act, R.S.O. 1990, c. P. 13 735 ITU'}'E 4 I1ays 5 ~ TERM 2.01 The term of this Agreement shall commence on the date that this Agreement has been execnted hy both parties. The term of this Agreement shall expire on the ruth (5th) anniversary of snch date. The Mnnicipalities 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 Omce of Durham (no. 40). 2.02 It is agreed that at the expiration of the Term of this Agreement, or any extension thereof, the Term shall deem to be extended for further periods of five (5) years each upon the same terms and conditions that are contained in this Agreement nnless either party to the Agreement, at least six (6) months before the expiration of such term or any extension thereof, shall have given to the other notice in writing of the intention of that party to terminate the Agreement at the expiration of the current Term. J., MAINTENANCE AND REPAIR 3.01 Clarington covenants and agrees that it shall: (A) Maintain and Repair to its fnll width, the portion of the Bonndary Road called the "Clarington Year Round Portion tI in SchedUle 11 A ". (B) Undertake Summer Maintenance, to its full width, the portion of the Boundary Road caUed the HClarington Summer Maintenance Portion" in Schedule II A" . (C) Indemnify and save harmless Scngog from and against any Claims arising from or in any way related to any alleged failure by Clarington to maintain and repair these portions of the Boundary Road. 3.02 Scugog covenants and agrees that it shall: (A) Maintain and Repair to its fnII width, the portion of the Bonndary Road called the "Scugog Year Round Portionll in Schedule "A". (B) Undertake Summer Maintenance, to its fnII width, the portion of the Boundary Road called the IIScugog Summer Maintenance Portion" in Schedule II A" . (C) Indemnify and save harmless Clarington from and against any Claims arising from or in any way related to any alleged failure by Scngog to maintain and repair these portions of the Boundary Road. 3.03 Clarington and Scugog shall, subject to each Mnnicipality's bndget approval, share the cost of Maintaining and Repairing the Boundary Road consistent with the activities detailed in clauses 3.01 and 3.02 of this Agreement. 3.04 The parties shall administer municipal access and consent to the Boundary Road, 00 the portions under their respective jurisdictions. 4. CONSTRUCTION 736 4.01 Subject to Section 6 of this Agreement, and subject to each Municipality's budget approval, Clarington and Scngog will contribnte equally Ilcx'fE 6 to the Construction costs (including design, engineering and all associated costs) related to improvements to the Bonodary Road. This work shall be nndertaken by Clarington, and Clarington sball provide Scngog with at least Ii months written notice prior to the commencement of Construction. Clarington covenants and agrees that it shall not undertake any Construction on the Boundary Road except with Scugog's written consent. Scugog agrees to pay Clarington tbeir sbare of the cost of construction within 30 days of receipt of invoice. ~ DEVELOPMENT 5.01 If Construction relates to a Development, tbe 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. 5.02 Nothing in section 6.01 shall derogate from Clarington's and Scngog's obligation to Maintain and Repair the Boundary Road pursuant to the terms of this Agreement. ~ FINANCIAL 6.01 Clarington and Scugog will coordinate and supervise all Maintenance, Repair and Construction Work for their respective portions of the Boundary Road (except for clause 6.01 related to development related Construction and annual collection and disposal of debris) and be responsible for payment of all related expenses. 'b GENERAL 7.01 Any notice to be given onder this Agreement shall be sufficiently given if delivered or if sent by prepaid first class mail and addressed to Scugog at: The Corporation of tbe Township of Scugog 181 Perry Street, P. O. Box 780 Port Perry Ontario L9L 1A7 to the attention of the Township Clerk, with a copy to the Director of Public Works. and to Clarington at: The Corporation of the Municipality of Clarington 40 Temperance Street Bowmanville, Ontario L1C 3Ab 737 to the attention of the Municipal Clerk, with a copy to the Direetor of Operations and Director of Engineering. Receipt of notice shall be deemed ou the earlier of the date of delivery or live (5) days following the date of mailing of the notice. Either Municipality may I1aYE 7 change its address for notice by giving notice of change of address pursuant to this section. 8.02 Notwithstanding anything in this Agreement, neither Municipality shall he in defanlt with respect to the performance of any of the terms of this Agreement if any Don-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. 8.03 The rights aud Iiahilities' of the Municipalities shall ennre to the henefit of and be binding upon the Municipalities and their respective successors and approved assigns. 8.04 Snbjectto section 8.05 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 fnlly replaces aud snpersedes any agreement or other contractnal arrangement hetween tbe Municipalities related to the subject matter of this Agreement. 8.05 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 malter of this Agreement. 8.06 If any article, section, subsection, paragraph, clause or subclause or any of the words contained in this Agreement shaU be held whoUy or partia1Iy illegal, invalid or unenforceable by any court of competent jurisdiction, the Mnnicipalities agree that the remainder of this Agreement shall not he affected by the jndicial holding, but shall remain in fnll force and effect. The provisions of this Agreement shall have effect, notwithstanding any statute to the contrary. 8.07 No supplement, amendment or waiver of or under this Agreement shall be binding nnless executed in writing by the Municipality to be hound thereby. No waiver hy 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. 8.08 Any dispnte that may arise under or in relation to this Agreement shall be determined by arbitration in accordance with and pursuant to the provisions of the Arbitration Act, S.O. 1991, c. 17. WITNFSS WHEREOF the Municipalities hereto have hereunto affixed their corporate seals dnly attested by the proper signing officers in that behalf. THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON 738 MAYOR cis ITay. 8 739 CLERK ITU'}'E 9 THE CORPORATION OF THE TOWNSlllP OF SCUGOG MAYOR cis CLERK 740 Schedule" A" ("Boundary Road") Those parts of the Bouudary Road: (a) from west Boundary Road easterly to Enfield Road, a distance of approximately 2,000 m (herein called "Clarington Summer Maintenance Portion") (b) from Enfield Road, easterly a distance of approximately 4,050 m (herein called "Unopened Portion") (c) from the easterly limit of the Unopened Portion easterly a distance of approximately 1,250 m to Regional Road 57 (herein called "Clarington Year Round Maintenance Portion") (d) from Regional Road 57 easterly a distance of approximately 2,000 m (herein called "Scugog Summer Maintenance Portion") (e) from the easterly limit of the Scugog Summer Maintenance Portion, easterly a distance of approximateiy 800 m (herein called "Scugog Year Round Maintenance Portion") (I) from the easterly limit of the Scugog Year Round Portion, easterly a distance of approximately 4,110 m to the Clarington/City of Kawartha Lakes boundary road (herein called the "Scugog Summer Maintenance Portion") 741 <( :r: f- 0::: <( f-5: z<( C)wY: 02u... C)tJO =:Jo:::>- Uc..')f- UJ<(_ '-..... U 00 Z<(f- 00 f-O:::O C)>-<( Zo:::O 0:::<(0::: <(Ow ...JZZ U=:J- O...J CD~ o f- f- UJ w 5: 2 o 0::: u... 742 I +---------- I --+~----~~-- I ; I 1 --r' : ; I I t --+-------- . ; I . ~--+--------I=- ; I 1 ------ _-+______.-Z. ).-- 0::: <( o Z =:J o CD UJ W y: <( ...J J5 ~_~ "::t . ~ - C) o (:) =:J8 o 00 U if) :- al ; E .1- l....i...o >_ ~o: g i- ~<l oNor. . , ~:-- ~ 0... :r:8 ~ N UJ- Z 5: o f- E .::<. I .... I E .. g . . ~ II-~ I . ~ .". ~ I H ~ ~ u -+---------- ; -- -,- -------~ 0::: , ~~~~~~ -~ ...J -------u " . u... o ~-~ ----)=.. -~-~ ...J . , -~""b__ " cL1--- , 1___ ------ -1----- i ru- -- ___ Ir-- o o o N ----- <; -- o o o o o ~ E E~ o N o o ~ o w ~ < u v> E ~ ~ ~ ~ E g';o :.a ~ c: '-'" .~ ^e <u E &. ....... u ~ g] g ~ I ~~ ~ g C 2~.e 2 '0 ~ g'~ '"0- ::E 5 ';: () E "'0 C ~_ e ~~~UO~ E 0:: '0 'E'=t 0- E 0;1 :::!; ~~ ~ ~ ~ Q) 0>. 5 ~ ~ ~ :~ ~ ii :a (f) g ~ '0 "w 'qj :>. 0;1 0 ::E ~ ~ ~ ~! ~ ~ Q) Ul 5 a:: a:: l5""88' a:: 5 2 ~ ~a g 0. (71 ct: "UVI >- "E "E en ~ . (71 oog,e.~O U 13 a E~ B -g '0 '0 !II 'cc III -g & ~ ~ '0 ~~ 0 o 0 0 "0 a. io a. a::: c 0.. a.:C c :c 3'g,:~:~~~~~ .3 ~ ~ ~ (!. 5~ ~ ~ IHIIi ,,;;r? ~~~Ij~.' r&l =df il;;l, . If ~i ATTACHMENT NO.: 3 REPORT NO.: EGD-35-04 THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON BY-LAW NO. 2004-_ 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 behaif 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 Municipality of Clarington and the City of Oshawa, dated the day of , 2004, in the form attached hereto as Sched ule "X". 2. THAT Schedule "X" attached hereto forms part of this by- law. BY-LAW read a first and second time this 28'" day of June, 2004. BY-LAW read a third time and finally passed this 28th day of June, 2004. John Mutton, Mayor Patti L. Barrie, Municipal Clerk 743 THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON BY-LAW NO. 2004-_ being a by-law to authorize the execution of a Boundary Road Agreement wrth the Corporation of the Township of Scugog. 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 seai, a Boundary Road Agreement for the roads forming the boundary between the Municipality of Clarington and the Township of Scugog, dated the day of , 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. John Mutton, Mayor Patti L. Barrie, Municipal Clerk 744