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HomeMy WebLinkAbout10 015 Huron-Kinloss Boundary Road Agreement By-LawTHE CORPORATION OF THE MUNICIPALITY OF KINCARDINE BY -LAW NO. 2010 — 015 BEING A BY -LAW TO AUTHORIZE THE SIGNING OF A BOUNDARY AGREEMENT BETWEEN THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE AND THE CORPORATION OF THE TOWNSHIP OF HURON - KINLOSS WHEREAS Section 29.1 (1) of the Municipal Act, 2001, S.O. 2001, c. 25, as amended, provides municipalities having joint jurisdiction over a boundary line highway may enter into an agreement under which each municipality agrees to keep any part of the highway in repair for its whole width; AND WHEREAS Subsection 29.1 (2) states that if municipalities enter into an agreement, each municipality has jurisdiction over that part of the highway that it has agreed to keep in repair and is liable for any damages that arise from failure to keep the highway in repair and the other municipality is relived from all liability in respect of the repair of that part; AND WHEREAS pursuant to the Municipal Act, S.O. 2001, c. 25, as amended, Sections 8 (1) and 9 provide that the powers of a municipality under this or any other Act shall be interpreted broadly so as to confer broad authority on the municipality to enable the municipality to govern its affairs as it considers appropriate and to enhance the municipality's ability to respond to municipal issues and that a municipality has the capacity, rights, powers and privileges of a natural person for the purpose of exercising its authority under this or any other Act; AND WHEREAS Council deems it advisable to enter into a boundary agreement (Schedule `A') with The Corporation of the Township of Huron - Kinloss for the repair and maintenance of the boundary line highways over which each municipality has joint jurisdiction; and being more particularly described in the attached schedule `A'; NOW THEREFORE the Council of The Corporation of the Municipality of Kincardine ENACTS as follows: 1. That The Corporation of the Municipality of Kincardine enter into a boundary agreement with The Corporation of the Township of Huron - Kinloss for the repair and maintenance of the boundary line highways over which each municipality has joint jurisdiction, and being more particularly described in the attached Schedule 'A'. 2. That the Mayor and Chief Administrative Officer be authorized and directed to sign and execute, on behalf of the Council of The Corporation of the Municipality of Kincardine, the boundary agreement with The Corporation of the Township of Huron - Kinloss, attached hereto as Schedule `A'. • • • • 3. This by -law shall come into full force and effect upon its final passage. 4. This by -law may be cited as the "Huron - Kinloss Boundary Road Agreement By -law ". READ a FIRST and SECOND TIME this 17 day of February, 2010 Page 2 Huron - Kinloss Boundary Road Agreement By -law By -law No. 2010 - 015 Clerk READ a THIRD TIME and FINALLY PASSED this 17 day of February, 2010. Clerk BOUNDARY ROAD MAINTENANCE AGREEMENT This Agreement made in triplicate as of the 1 s ` day of January, 2009 BETWEEN: THE CORPORATION OF THE TOWNSHIP OF HURON - KINLOSS (herein referred to as "Huron - Kinloss ") - and - THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE (herein referred to as "Kincardine ") WHEREAS pursuant to section 11 of the Municipal Act, 2001, Huron - Kinloss and Kincardine may pass by -laws respecting matters within the "highways" sphere of jurisdiction; 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 Huron - Kinloss and Kincardine wish to make provision for all matters relating to the maintenance, repair, capital improvements and the sharing of the costs thereof for the boundary line highways (the "Boundary Roads ") over which they have joint jurisdiction; 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 hereto agree as follows: 1. INTERPRETATION 1.01 In this Agreement where words appear with their first letter capitalized, the words are intended to 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. 3210252.1 (a) "Agreement" means this agreement, including its recitals and any schedules which form an integral part of it, as amended in writing and approved by the Councils of both parties from time to time. 3210252.1 - 2 - (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 Agreement, loss of life, personal injury (including, in all cases, personal discomfort and illness), and loss of and damage to property. (c) "Capital Improvements" includes road construction, reconstruction, gravelling, paving, surface treatment, resurfacing and excavating and includes the installation of engineered fill, subdrains, granular base, concrete curb and gutter, guiderails, topsoil, sod, street trees, storm sewers, catchbasins, culverts, bridge construction, traffic signalization, and any similar activities and materials in, under, over, upon, along, above or across the Boundary Roads, but does not include activities falling within the definition of Maintain and Repair as set out below. (d) "Maintain and Repair" means activities relating to the maintenance and repair of the Boundary Roads in accordance with and to the standards from time to time prescribed by by -law and policy, as applicable, of Huron - Kinloss or Kincardine, as the case may be, including, without limitation, regravelling, gravel patching, grading and seasonal maintenance, guiderail repair, sewer and catchbasin cleaning, grass and weed cutting, sweeping and flushing, traffic and regulatory sign maintenance, winter control measures (including snow plowing, snow removal, snow fencing, and sanding), litter control, tree trimming and removal, and road patrol. 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 enacted after the date of this Agreement. 2. TERM AND RENEWAL 2.01 The term of this Agreement shall commence on January 1, 2009 and shall expire on December 31, 2018. Notwithstanding the foregoing, this Agreement shall be deemed to be automatically renewed for a further period of ten (10) 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. 2.02 Notwithstanding the foregoing, either party may terminate this Agreement upon providing six (6) months written notice to the other party. 3. MAINTENANCE AND REPAIR 3.01 Huron - Kinloss covenants and agrees that, during the term of this Agreement and any renewal thereof, it shall Maintain and Repair, at its sole cost, the following Boundary Roads: 3210252.1 (a) the northerly portion of the Boundary Road known as Huron Kincardine East extending from County of Bruce Road #7 east to the road known as Huron - Kinloss Boundary Road, a distance of approximately 6 kilometres; (b) the northerly portion of the Boundary Road known as Saratoga Road extending from Penetangore Row east to the road allowance commonly referred to by the Township of Huron - Kinloss as the Lake Range Drive Extension, a distance of approximately 1 kilometre; and (c) 3 the westerly portion of the Boundary Road known as Kincardine - Kinloss Boundary Road extending from the roadway known as Huron - Kincardine East northerly to Provincial Highway #9, a distance of approximately 2 kilometres. 3.02 Kincardine covenants and agrees that, during the term of this Agreement and any renewal thereof, it shall Maintain and Repair, at its sole cost, the following Boundary Roads: (a) the southerly portion of the roadway known as Huron - Kincardine West extending east from Provincial Highway #21 to Sideroad 20 (former Township of Huron), a distance of approximately 6 kilometres; and (b) the easterly portion of the roadway known as Kincardine - Kinloss Boundary Road extending north from Provincial Highway #9 to Bruce County Road #1, a distance of approximately 4 kilometres. 3.03 Kincardine covenants and agrees that, during the term of this Agreement and any renewal thereof, it shall Maintain and Repair, at its sole cost, the following Boundary Roads from November 1 of each year to March 31' of the following year, inclusive: 3.04 Huron- Kinloss shall indemnify and save harmless Kincardine from and against any Claims arising from or in any way relating to any alleged failure by Huron - Kinloss to Maintain and Repair the roads set out in sections 3.01 and 3.03 above. 3.05 Kincardine shall indemnify and save harmless Huron - Kinloss from and against any Claims arising from or in any way relating to any alleged failure by Kincardine to Maintain and Repair the roads as set out in sections 3.02 and 3.03 above. 3.06 Huron - Kinloss shall administer access and utility consents relating to the roads set out in sections 3.01 and 3.03 above. 3.07 Kincardine shall administer access and utility consents relating to the roads set out in sections 3.02 and 3.03 above. 4. CAPITAL IMPROVEMENTS 4.01 As required by either party Huron - Kinloss and Kincardine shall meet to determine what Capital Improvements will be undertaken the following year on the Boundary Roads, and which party shall be responsible for overseeing said Capital Improvements. All costs related to Capital Improvements shall be apportioned between the parties hereto on a 50/50 basis. Notwithstanding the foregoing, the party responsible for overseeing any Capital Improvements shall pay all costs associated therewith, and the parties shall reconcile accounts once yearly as set out in section 4.03 below. 4.02 In the event any unforeseen Capital Improvements are required to any portion of the Boundary Roads that were not considered in a meeting set out in section 4.01, either party hereto may undertake said unforeseen Capital Improvements with the consent of the other party hereto provided that the reasonable cost estimate for said unforeseen Capital Improvements does not exceed $20,000.00. In the event the cost estimate does exceed $20,000.00 the unforeseen Capital Improvements shall not be undertaken by either party without the written consent of the other party hereto, unless said party undertaking the unforeseen Capital Improvements agrees to be solely responsible for the costs associated therewith. In all other cases, all costs related to said unforeseen Capital Improvements shall be apportioned between the parties hereto on a 50/50 basis. 3210252.1 - 4 - Huron - Kinloss covenants and agrees that, during the term of this Agreement and any renewal thereof, it shall Maintain and Repair, at its sole cost, the following Boundary Roads from April 1 of each year to October 31st of the following year, inclusive: (a) the portion of the roadway known as Northline Avenue extending east from Kincardine - Kinloss Boundary Road to Bruce County Road 1, a distance of approximately 2.1 kilometres. 4.03 The Director of Public Works or Manager of Public Works, as the case may be, of Huron - Kinloss and Kincardine shall prepare each year a detailed statement of the Capital Improvements undertaken by each on the Boundary Roads, and such statements shall be verified by a statutory declaration of the Director of Public Works or Manager of Public Works, as the case may be. Said statement shall be submitted to the other party hereto no later than the fifteenth day of January in the year following that in which the expenditure was made. Reconciliation of accounts, on a 50/50 basis, shall be completed by the parties hereto no later than February 15 of each year for expenditures made in the previous year. 5. GENERAL 5.01 Any notice to be given under this Agreement shall be sufficiently given if delivered by prepaid first class mail and addressed, 3210252.1 to Huron- Kinloss at: and to Kincardine at: - 5 - The Corporation of the Township of Huron - Kinloss P.O. Box 130 21 Queen Street Ripley, ON NOG 2R0 Attention: Mary Rose Walden, Administrator The Corporation of the Municipality of Kincardine 1475 Concession 5 R.R. #5 Kincardine, ON N2Z 2X6 Attention: John deRosenroll, CAO Receipt of notice shall be deemed to have occurred 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. 5.02 Notwithstanding anything in this Agreement, neither party 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, 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. 5.03 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. 6 5.04 Subject to section 5.05 of this Agreement, 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. 5.05 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. 5.06 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 Roads. 5.07 If any article, section, subsection, paragraph, clause or subclause or any of the words contained in this Agreement shall be held wholly or partially 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. 5.08 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. 5.09 For the convenience of the parties, this Agreement may be validly executed in several counterparts, each of which when so executed shall be deemed to be an original instrument and such counterparts together shall constitute one and the same instrument, and notwithstanding the date of execution, shall be deemed to bear date as of the date written at the beginning of this Agreement. 5.10 For the convenience of the parties, delivery of this Agreement may be validly made by a party by facsimile transmission to the other party. A party who delivers the executed Agreement by facsimile transmission shall, as soon as reasonably practicable, deliver a 3210252.1 IN WITNESS WHEREOF the parties have executed this Agreement under the hands of their duly authorized signing officers. THE CORPORATION OF THE TOWNSHIP OF HURON - KINLOSS MAYOR – Mitch Twolan DEPUTY CLERK – Joanna Malott We have authority to bind the Township. THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE -L rry Kraemer ER 0 nhr 12osenyi1I We have authority to bind the Municipality. 3210252.1 - 7 - copy of the executed Agreement bearing the original signature(s) of such party to the other party. . , . sclpectule. 'A' -I- &i lain 60. Quo-Ns BOUNDARY ROAD MAINTENANCE AGREEMENT This Agreement made in triplicate as of the 1 day of January, 2009 BETWEEN: THE CORPORATION OF THE TOWNSHIP OF HURON - KINLOSS (herein referred to as "Huron - Kinloss ") - and - THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE (herein referred to as "Kincardine ") WHEREAS pursuant to section 11 of the Municipal Act, 2001, Huron - Kinloss and Kincardine may pass by -laws respecting matters within the "highways" sphere of jurisdiction; 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 Huron - Kinloss and Kincardine wish to make provision for all matters relating to the maintenance, repair, capital improvements and the sharing of the costs thereof for the boundary line highways (the "Boundary Roads ") over which they have joint jurisdiction; 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 hereto agree as follows: 1. INTERPRETATION 1.01 In this Agreement where words appear with their first letter capitalized, the words are intended to 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. 3210252.1 (a) "Agreement" means this agreement, including its recitals and any schedules which form an integral part of it, as amended in writing and approved by the Councils of both parties from time to time. 2. TERM AND RENEWAL 2.01 The term of this Agreement shall commence on January 1, 2009 and shall expire on December 31, 2018. Notwithstanding the foregoing, this Agreement shall be deemed to be automatically renewed for a further period of ten (10) 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. 2.02 Notwithstanding the foregoing, either party may terminate this Agreement upon providing six (6) months written notice to the other party. 3. MAINTENANCE AND REPAIR 3.01 Huron- Kinloss covenants and agrees that, during the term of this Agreement and any renewal thereof, it shall Maintain and Repair, at its sole cost, the following Boundary Roads: 3.02 Kincardine covenants and agrees that, during the term of this Agreement and any renewal thereof, it shall Maintain and Repair, at its sole cost, the following Boundary Roads: 3.03 Kincardine covenants and agrees that, during the term of this Agreement and any renewal thereof, it shall Maintain and Repair, at its sole cost, the following Boundary Roads from November 1 of each year to March 30 of the following year, inclusive: 3210252.1 -3 (a) the northerly portion of the Boundary Road known as Huron Kincardine East extending from County of Bruce Road #7 east to the road known as Huron - Kinloss Boundary Road, a distance of approximately 6 kilometres; (b) the northerly portion of the Boundary Road known as Saratoga Road extending from Penetangore Row east to the road allowance commonly referred to by the Township of Huron - Kinloss as the Lake Range Drive Extension, a distance of approximately 1 kilometre; and (c) the westerly portion of the Boundary Road known as Kincardine - Kinloss Boundary Road extending from the roadway known as Huron - Kincardine East northerly to Provincial Highway #9, a distance of approximately 2 kilometres. (a) the southerly portion of the roadway known as Huron - Kincardine West extending east from Provincial Highway #21 to Sideroad 20 (former Township of Huron), a distance of approximately 6 kilometres; and (b) the easterly portion of the roadway known as Kincardine - Kinloss Boundary Road extending north from Provincial Highway #9 to Bruce County Road #1, a distance of approximately 4 kilometres. - 5 - 4.03 The Director of Public Works or Manager of Public Works, as the case may be, of Huron - Kinloss and Kincardine shall prepare each year a detailed statement of the Capital Improvements undertaken by each on the Boundary Roads, and such statements shall be verified by a statutory declaration of the Director of Public Works or Manager of Public Works, as the case may be. Said statement shall be submitted to the other party hereto no later than the fifteenth day of January in the year following that in which the expenditure was made. Reconciliation of accounts, on a 50/50 basis, shall be completed by the parties hereto no later than February 15 of each year for expenditures made in the previous year. 5. GENERAL 5.01 Any notice to be given under this Agreement shall be sufficiently given if delivered by prepaid first class mail and addressed, to Huron - Kinloss at: The Corporation of the Township of Huron - Kinloss P.O. Box 130 21 Queen Street Ripley, ON NOG 2R0 Attention: Mary Rose Walden, Administrator and to Kincardine at: The Corporation of the Municipality of Kincardine 1475 Concession 5 R.R. #5 Kincardine, ON N2Z 2X6 Attention: John deRosenroll, CAO Receipt of notice shall be deemed to have occurred 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. 5.02 Notwithstanding anything in this Agreement, neither party 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, 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. 5.03 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. 3210252.1 IN WITNESS WHEREOF the parties have executed this Agreement under the hands of their duly authorized signing officers. THE CORPORATION OF THE TOWNSHIP OF HURON - KINLOSS 1j�Qrn� - MAYOR — " Wig= 6,rvn6i_s karAu Malott <S PN yA vs1 l ani We have authority to bind the Township. THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE • MA OR — copy of the executed Agreement bearing the original signature(s) of such party to the other party. C am , IV1(L J .j452411 C.Pt John de CID SPnrD11 We have authority to bind the Municipality. 3210252.1 -7- The Corporation of the Township of Huron - Kinloss 1 Huron - Kinloss BY -LAW 2010 -33 BEING A BY -LAW TO AUTHORIZE THE SIGNING OF A BOUNDARY AGREEMENT BETWEEN THE CORPORATION OF THE TOWNSHIP OF HURON KINLOSS AND THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE WHEREAS Section 29.1 (1) of the Municipal Act, 2001, S.O. 2001, c. 25, as amended, provides municipalities having joint jurisdiction over a boundary line highway may enter into an agreement under which each municipality agrees to keep any part of the highway in repair for its whole width; AND WHEREAS Subsection 29.1 (2) states . that if municipalities enter into an agreement, each has jurisdiction over that part of the highway that it has agreed to keep in repair and is liable for any damages that arise from failure to keep the highway in repair and the other municipality is relieved from all liability in respect of the repair of that part; AND WHEREAS pursuant to the Municipal Act, S.O. 2001, c. 25, as amended, Sections 8 (1) and 9 provide that the powers of a municipality under this or any other Act shall be interpreted broadly so as to confer broad authority on the municipality to enable the municipality to govern its affairs as it considers appropriate and to enhance the municipality's ability to respond to municipal issues and that a municipality has the capacity, rights, powers and privileges of a natural person for the purpose of exercising its authority under this or any other Act; AND WHEREAS Council deems it advisable to enter into a boundary agreement (Schedule 'A') with the Corporation of the Municipality of Kincardine for the repair and maintenance of the boundary line highways over which each municipality has joint jurisdiction; and being more particularly described in the attached Schedule 'A'; NOW THEREFORE the Municipal Council of the Corporation of the Township of Huron - Kinloss enacts as follows: 1.0 That the Corporation of the Township of Huron Kinloss enter into a boundary agreement with the Corporation of the Municipality of Kincardine for the repair and maintenance of the boundary line highways over which each municipality has joint jurisdiction and being more particularly described in the attached Schedule 'A'. 2.0 That The Mayor and Clerk are hereby authorized to sign, on behalf of the Council for The Corporation of the Township of Huron - Kinloss, the boundary agreement with the Corporation of the Municipality of Kincardine, attached hereto as Schedule 'A'. 3.0 This By -law shall come into force and effect upon its final passage. 4.0 This By -law may be citied as the " Municipality of Kincardine Boundary Road Agreement By -law" READ a FIRST, SECOND and THIRD TIME and FINALLY PASSED this 15 day of March, 2010.