Loading...
3982 Schedule A - Boundary Road Maintenance AgreementTHE CORPORATION OF THE MUNICIPALITY OF BAYHAM BY-LAW 2015-128 A BY-LAW TO AUTHORIZE THE EXECUTION OF AN AGREEMENT BETWEEN THE THE CORPORATION OF THE MUNICIPALITY OF BAYHAM AND THE CORPORATION OF THE TOWN OF TILLSONBURG FOR A BOUNDARY ROAD MAINTENANCE AGREEMENT WHEREAS pursuant to section 11 of the Municipal Act, 2001, the Municipality of Bayham and the Town of Tillsonburg may pass by-laws respecting matters within the "highways" sphere of jurisdiction; AND WHEREAS pursuant to section 27(2) of the Municipal Act, 2001 a by-law in respect of the highway must be passed by all of the municipalities having jurisdiction over the highway; AND WHEREAS pursuant to section 29.1 of the Municipal Act, 2001, if parties having joint jurisdiction over a boundary line highway enter into an agreement under which each party agrees to keep any part of the highway in repair for its whole width and to indemnify the other party from any loss or damage arising from the lack of repair for that part, the agreement and a copy of the by-law authorizing the agreement may be registered in the land registry office for the area in which the highway is located; AND WHEREAS by this Agreement the Town of Tillsonburg and the Municipality of Bayham wish to make provision for all matters relating to the maintenance and repair, capital improvements and the sharing of the costs over a boundary line highway between them; NOW THEREFORE THE COUNCIL OF THE CORPORATION OF THE MUNICIPALITY OF BAYHAM ENACTS AS FOLLOWS: 1. THAT the Mayor and Clerk be and are hereby authorized to execute the Agreement attached hereto as Schedule "A" and forming part of this by-law between the Municipality of Bayham and the Town of Tillsonburg for a Boundary Road Maintenance Agreement; 2. THAT this by-law shall come into full force and effect upon final passing. READ A FIRST, SECOND AND THIRD TIME AND FINALLY PASSED THIS 171h DAY OF DECEMBER 2015. :w_z; BOUNDARY ROAD MAINTENANCE AGREEMENT This Agreement made this lZ_day of D£..,..11!;;,~ , 201 BETWEEN: THE CORPORATION OF THE TOWN OF TILLSONBURG (herein referred to as ''Tillsonburg") -and- THE CORPORATION OF THE MUNICIPALITY OF BAVHAM (herein referred to as "Bayham") WHEREAS pursuant to section 11 of the Municipal Act, 2001, Bayham and Tillsonburg may pass by-laws respecting matters within the "highways" sphere of jurisdiction; AND WHEREAS pursuant to section 27(2) of the Municipal Act, 2001 a by-law in respect of the highway must be passed by all of the municipalities having jurisdiction over the highway; AND WHEREAS pursuant to section 29.1 of the Municipal Act, 2001, if parties having joint jurisdiction over a boundary line highway enter into an agreement under which each party agrees to keep any part of the highway in repair for its whole width and to indemnify the other party from any loss or damage arising from the lack of repair for that part, the agreement and a copy of the by-law authorizing the agreement may be registered in the land registry office for the area in which the highway is located; AND WHEREAS by this Agreement Tillsonburg and Bayham wish to make provision for all matters relating to the maintenance and repair, capital improvements and the sharing of the costs over a boundary line highway between them; NOW THEREFORE in consideration of the mutual terms, conditions and covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. INTERPRETATION 1.1 The following defined terms shall have the following meanings: (a) "Agreement" means this agreement including the following Schedules: (Q Schedule A-Description of the Boundary Highways. (b) ~Boundary Highway" means the highways described in Schedule A. (c) "Capital Improvements" means improvements to a Boundary Highway that do not fall within the meaning of Maintain and Repair. (d) "Development" means any Capital Improvement to a highway that is required as a result of 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, R.S.O. 1990, c. P.13 (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; and (viii) the issuing of a permit under the Building Code Act, 1992 in relation to a building or structure. (e) "Emergency Works" may include any unforeseen works deemed urgent and where immediate action is required to make the condition safe or where the integrity of the road or drainage facilities may be compromised, or damage to private property is imminent if the condition is not attended to. (f) "Maintain and Repair" means activities relating to the routine maintenance and repair in accordance with Ontario Regulation 239102 Minimum Maintenance Standards for Municipal Highways ("0. Reg 239/02"'). 1.2 Terms used but not defined in this Agreement shall have the same meaning as defined terms in the applicable statute, regulation or by-law unless the context requires otherwise. All words not defined shall have the meaning ordinarily ascribed to them in the English language. 1.3 All words in this Agreement shall be deemed to include any number or gender as the context requires. 1.4 This Agreement shall be interpreted according to the laws of the Province of Ontario. 1.5 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. 1.6 Reference to an official shall be deemed to include a reference to the official of the party who, from time to time, performs the duties of such referenced person. 1.7 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 enacted after the date of this Agreement. 2. TERM AND RENEWAL 2.1 The term of this Agreement shall commence on the date noted above and shall expire on July 31" 2025. This Agreement shall be deemed to be automatically renewed for a further period of ten (1 0) years unless, not less than six (6) months prior to the expiration of the initial term, one of the parties provides written notice to the other party that it does not wish the Agreement to be renewed. 2.2 During the time period of June 1, 2016 to July 29, 2016 a one-time mutual review option shall exist where either Bayham or Tillsonburg may request the Boundary Highway, Maintain and Repair responsibilities, be reapportioned in an alternative manner to that which is contemplated within Section 3.1 of this Agreement. (a) If no change to Section 3.1 is affected the Agreement shall continue in full force and effect. (b) If a change to Section 3.1 is affected and mutually agreed upon the Agreement shall continue in full force and effect, as amended. (c) If a change to Section 3.1 is proposed and not mutually agreed upon during the time period contemplated in Section 2.2 the Agreement shall be terminated effective July 29, 2016. 3. MAINTENANCE AND REPAIR 3.1 Tillsonburg covenants and agrees to Maintain and Repair to its full width the portions of the highways identified in Schedule A. 3.2 All costs related to Maintenance and Repair shall be apportioned between the parties on a 50/50 basis. Tillsonburg shall invoice Bayham and Bayham shall reimburse Tillsonburg in accordance with section 5.1 below. 2 4. CAPITAL IMPROVEMENTS 4.1 A mm1mum of once per year the parties shall meet to determine the Capital Improvements to be undertaken for the following year and determine the party that shall be responsible for overseeing any Capital Improvements to be agreed upon. All costs related to Capital Improvements shall be apportioned between the parties on a 50/50 basis. The party responsible for overseeing any Capital Improvements shall pay all costs associated with such Capital Improvements, and shall recover such costs in accordance with section 5.1 below. 4.2 Capital Improvement costs include the casts of external professional engineers, consultants, or other professional services and may include either party's own resources and staff. 4.3 Capital Improvements shall not be undertaken without the prior written consent of both parties. 4.4 In the event any unforeseen Capital Improvements or Emergency Works are required that were not considered in the meeting set out in section 4.1 above, either party may undertake the unforeseen Capital Improvements or Emergency Works without the consent of the other party provided that the reasonable cost estimate for the unforeseen Capital Improvements or Emergency Works does not exceed $20,000.00. In the event the cost estimate does exceed $20,000.00, the unforeseen Capital Improvements or Emergency Works shall not be undertaken by either party without the prior written consent of the other party. The parties shall pay their proportionate shares in accordance with section 4.1 above. If either party undertakes Capital Improvements or Emergency Works that the other party does not consent to in writing if required as set out above, the party undertaking such works shall be solely responsible for the related costs. 4.5 For Emergency Works, the party normally responsible to Maintain and Repair for the applicable section of the Boundary Highway set out in section 3.1 and 3.2 above, will notify the other party when becoming aware of the condition. Should the condition require immediate action and the other party has not acknowledged receiving the notice, the party normally responsible to Maintain and Repair during that time shall take action and notify the other party as soon as it is practicable. If the action constitutes activities within the meaning of Maintain and Repair, the cost to take such action shall be paid by the party responsible to Maintain and Repair that portion of the Boundary Highway. If the action is considered Capital Improvements, the parties shall pay their proportionate shares in accordance with section 4.1 above. Where the costs are likely to exceed $20,000 and the other party has not acknowledged receiving the notice, the party normally responsible to Maintain and Repair shall take steps to make the situation safe and prevent further deterioration at as little cost as possible until such time that the other party acknowledges the notice, and permanent repairs can be undertaken. 4.6 Notwithstanding the above, in the event the parties are unable to agree upon the Capital Improvements to be undertaken in any instance, either party may undertake such Capital Improvements as it deems appropriate at its sole cost with six (6) months advance written notice to the other party. 5. REIMBURSEMENT 5.1 Annually, or on such intervals as the parties may agree, each party shall provide to the other party a detailed invoice of the actual works and charges incurred. Each party shall pay to the other the amounts owing within sixty (60) days of receipt of such invoices. 6. DEVELOPMENT 6.1 Each party shall provide to the other party notice of any proposed development within its municipality that fronts onto or has access from the Boundary Highway prior to approval and shall seek input from the other party to determine the Capital Improvements that shall be included as a condition of the development approval. 6.2 The responsible municipality shall require the developer to pay for all costs related to the Capital Improvements pursuant to section 6.1 above; and where such condition to pay is not imposed or enforced, the responsible municipality shall pay any costs not paid by the developer. 3 ·--·1-· 7. INDEMNIFICATION 7.1 The parties covenant and agree that each shall indemnify, defend and save harmless the other party from any liability, cost, demands, damages, expenses, claims and suits arising out of or in any way related to the obligations of the other party to carry out the work or otherwise meet the obligations provided for in this Agreement, including the failure to perform such work adequately or at all, except to the extent that same is caused by the negligence or wilful misconduct of the other party. This indemnity shall survive the early termination or expiry of this Agreement. 7.2 Notwithstanding anything to the contrary contained in this Agreement, and subject to any applicable legislation and the ability of a party to protect its own rights in the face of litigation against that party, each party agrees to assist the other party in a timely manner in terms of the provision of information relevant to any claims that are made against the other party with respect to either party's obligations assumed under this Agreement. 8. INSURANCE 8.1 During the term of this Agreement, each party shall obtain and maintain in full force and effect, Comprehensive General Liability Insurance naming the other party as an additional insured regarding their respective obligations under this Agreement of not less than Ten Million Dollars ($1 0,000,000) for any single occurrence with an aggregate limit of not less than Fifteen Million Dollars ($15,000,000) which shall include coverage for bodily injury, property damage, and personal injury and shall contain the following endorsements: contractual liability, broad form property damage, products and completed operations liab11ity, cross liability and a severability of interest clause, non- owned automobile liability with a limit not less than Two Million Dollars ($2,000,000) and shall include contractual non-owned coverage. Such policy shall be undeJWritten by an insurer licensed to conduct business in the Province of Ontario and shall include a 30 day written notice of cancellation, termination or material change. 8.2 Each party shall also obtain and maintain in full force and effect Automobile Liability Insurance covering third party property damage and bodily injury liability including accident benefits as may be required by Applicable Laws arising out of any licensed vehicle operated by the party in connection with this Agreement with limits of not less than Five Million Dollars ($5,000,000) per occurrence. Such policy shall be underwritten by an insurer licensed to conduct business in the Province of Ontario and shall include a 30 day written notice of cancellation, termination or material change. 8.3 Upon request, each party shall provide to the other party such evidence of its insurance as required under this Agreement. Each party shall take all reasonable steps to not do or omit to do anything that would impair or invalidate the insurance policies. 9. DISPUTE RESOLUTION 9.1 The parties agree to engage in good faith negotiations with a view to resolving any dispute that may arise from this Agreement. 9.2 In the event the parties are unable to resolve the dispute within thirty (30) days of written notice, the parties agree to submit to arbitration under the rules of the Arbitration Act, 1991, S.O. 1991, c.17, as amended and as it exists from time to time. This part of the agreement is not intended to apply to third party tort litigation. 9.3 Nothing contained herein shall be construed as waiving any additional rights in law or in equity of either party with respect to this Agreement. 10. GENERAL 10.1 Any notice to be given under this Agreement shall be sufficiently given if delivered by hand or courier or if sent by prepaid first class mail and addressed, to Tillsonburg at: The Corporation of the Town of Tillsonburg Attention: Clerk 200 Broadway, 2nd Floor, Suite 204 Tillsonburg, ON N4G 5A7 4 ---· ------~- and to Bayham at: The Corporation of the Municipality of Bayham Attention: Clerf< 9344 Plank Rd, PO Box 160 Straffordville, ON NOJ 1YO Receipt of notice shall be deemed to have occurred on the earlier of the date of delivery or five (5) days following the date of mailing of the notice. Either party may change its address for notice by giving notice of change of address pursuant to this section. 1 0.2 Neither party shall be in defautt 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, act of God, government regulations or controls, inability to obtain any material or service, or any cause beyond the reasonable control of the party (unless such lack of control results from a deficiency in financial resources). Otherwise, time shall be of the essence of this Agreement and all of the obligations contained herein. 10.3 The rights and liabilities of the parties shall enure to the benefit of and be binding upon the parties and their respective successors and approved assigns. Neither party may assign this Agreement without first obtaining the prior written consent of the other party. 10.4 This Agreement contains the entire agreement between the parties. 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 fully replaces and supersedes any practice, agreement or other contractual arrangement between the parties related to the subject matter of this Agreement. 1 0.5 Nothing in this Agreement relieves either party from any outstanding financial obligation to the other in respect of any prior agreement or other contractual arrangement between the parties related to the subject matter of this Agreement. 1 0.6 The parties acknowledge that this Agreement together with a copy of the by-laws authorizing the execution of this Agreement may be registered against title to the Boundary Highways and the cost of such registration shall be equally shared between the parties. 10.7 If any article, section, subsection, paragraph, clause or subclause or any of the words contained in this Agreement shall be held wholly or partially unlawful, invalid or unenforceable by any court of competent jurisdiction, the parties 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 statutory provision to the contrary. 1 0.8 No supplement, amendment or waiver of or under this Agreement shall be binding unless executed in writing by the party to be bound thereby. No waiver by a party 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. 5 IN WITNESS WHEREOF the parties have executed this Agreement under the hands of their duly authorized signing officers. THE CORPORATION OF THE TOWN OF TILLSONBURG (A/)fJPL oZ,a"u, 0/}'Y}tM -.l) CLERK DonnaWilson l!/'vfy C/erk We have authority to bind the Corporation of the Town of Tillsonburg. THE CORPORATION OF THE MUNICIPALITY OF BAYHAM ~ We have au!liori~nd the Corporation of the Municipality of Bayham. 6 Tillsonburg Bayham Drive Schedule A Description of the Boundary Highways North of Highway 3 Newell Road 4 7 Asphalt 60m of 1500mm 0 concrete pipe at Bayham Dr. and Newell Rd. 1.04