HomeMy WebLinkAboutFCS-11-006 - Conestoga Cross Border AgreementStaff Re~p~r~
I~~rc~~nT~~ Finance and Corporate Services 1~eparfinent
REPORT TO:
DATE OF MEETING:
SUBMITTED BY:
PREPARED BY:
WARD(S) INVOLVED:
DATE OF REPORT:
REPORT NO.:
SUBJECT:
RECOMMENDATION:
Special Meeting of Council
January 10, 2011
www.kitchenerca
Steven D. S. Ross, Assistant City Solicitor, ext. 2266
Steven D. S. Ross, Assistant City Solicitor, ext. 2266
3
December 31, 2010
FCS -11- 006
Conestoga Forcemain Cross Border Agreement
THAT the Mayor and Clerk be authorized to enter into a Cross Border Agreement with the
City of Cambridge, substantially in the form of the Agreement attached hereto as
Schedule "A" and as approved by the City Solicitor, to address the operational,
maintenance and other requirements to construct and maintain a sanitary service main
from Conestoga College South Campus and Blair Business Park to the Kitchener
Wastewater Treatment Plant (the "Conestoga/Blair Forcemain";
AND THAT the Mayor and Clerk be authorized to execute such further documentation to
accept an easement in favour of the City of Kitchener and City of Cambridge over lands
owned by Conestoga College, substantially similar to those lands outlined in the
attached Schedule "B", Figure 1, and as approved by the City Solicitor, to permit the
construction and maintenance of the Conestoga/Blair Forcemain,;
AND THAT the Mayor and Clerk be authorized to execute such further documentation, if
necessary, to allow the existing easement registered as Instrument No. 416875 over
Grand River Conservation Authority in favour of the City of Kitchener, to be used by the
City of Cambridge, upon consent of the Grand River Conservation Authority, to permit
the construction and maintenance of the Conestoga/Blair Forcemain;
AND THAT the Mayor and Clerk be authorized to execute such further documentation to
accept an easement in favour of the City of Kitchener and City of Cambridge over lands
owned by the Grand River Conservation Authority, adjacent to the Old Mill Pumping
Station and substantially similar to those lands outlined in the attached Schedule "B",
Figure 2, and as approved by the City Solicitor, to permit the construction and
maintenance of the Conestoga/Blair Forcemain;
Staff Re~p~r~
I~~rc~~nT~~ Finance and Corporate Services 1~eparfinent w~+w.kitthenerca
AND THAT the Mayor and Clerk be authorized to execute such further documentation to
accept an easement in favour of the City of Kitchener and City of Cambridge over lands
owned by the Region of Waterloo, adjacent to the Kitchener Wastewater Treatment Plant
and substantially similar to those outlined in the attached Schedule "B", Figure 3, and as
approved by the City Solicitor, for the purposes of maintaining existing infrastructure
owned by the City of Kitchener and to permit the construction and maintenance of the
Conestoga/Blair Forcemain;
BACKGROUND:
Assessment study to identify the preferred means of providing sanitary service for Conestoga
College's South Campus and the Blair Business Park to the Kitchener Wastewater Treatment
Plant, including a location for a new sewage pumping station (in Cambridge), and the preferred
route for a sewage outlet from this new pumping station to the Treatment Plant.
It should be noted that for this project, sanitary sewage will be generated in the City of
Cambridge, flow through the City of Kitchener and be treated in the Regional Wastewater
Treatment Facility, located in Kitchener. The study outcome required careful review and
discussion with all parties throughout the Class EA process.
The preferred alternative includes a sanitary forcemain routing down Morningside Drive in
Cambridge, crossing Highway 401, then crossing the Conestoga (boon) North Campus,
continuing along Doon Valley Drive and Old Mill Road to the trail along the Grand River and
ultimately outletting to the Kitchener Wastewater Treatment Facility.
The selection of the preferred alternative was based on an evaluation of the natural, economic
and social conditions as well as public health and safety concerns as they apply to the proposed
work.
REPORT:
In May 2009, City Council directed staff to participate in the Class EA process and report back
the results of the study. In September 2009, City Council received report DTS 09-134 and
endorsed both the Class EA conducted by Cambridge through its consultants MTE which
determined the preferred route for the Conestoga/Blair Forcemain.
Legal Services has worked with the City of Cambridge, the Region of Waterloo and the
Engineering Department to prepare a draft Cross Border Agreement attached hereto as
Schedule "A".
The Cross Border Agreement with Cambridge includes the following highlighted provisions:
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I~~rc~~nT~~ Finance and Corporate Services 1~eparfinent w~+w.kitthenerca
- allows Cambridge to construct and maintain the Conestoga/Blair Forcemain within the
City of Kitchener right-of-way;
- provides for the approval by the City of Kitchener's Director of Engineering of all plans
associated with the Conestoga/Blair Forcemain;
- confirms that the City of Cambridge will be responsible for all costs with respect to the
construction and maintenance of the Conestoga/Blair Forcemain as well indemnifies the City of
Kitchener with respect to any damages arising therefrom;
There are a few special situations which will require the preparation of easements at various
locations along the preferred route that fall outside the City of Kitchener Right of Way. Firstly,
both the City of Cambridge and the City of Kitchener will require an easement from Conestoga
College for that portion of the Conestoga/Blair Forcemain located on lands owned by Conestoga
College. Secondly, the City of Cambridge requires an easement from the Grand River
Conservation Authority to mirror the existing easement in favour of the City of Kitchener for the
portion of the Conestoga/Blair Forcemain that crosses Grand River Conservation Authority
lands. Thirdly, an easement is required from the Region of Waterloo to recognize the existing
forcemain and infrastructure on Region lands adjacent to the Wastewater Treatment Plant.
In the event Cambridge desires to commence construction prior to the completion of these
easements, the parties involved have agreed to provide Cambridge with a consent to enter onto
lands. Notwithstanding this, the City of Kitchener legal department will continue to do what it
can to expedite the preparation of these ancillary easement documents.
FINANCIAL IMPLICATIONS:
None. The City of Cambridge is fully funding this project. Furthermore, the City of Cambridge
has agreed to cover costs associated with the preparation of the agreements, including internal
staff costs. Upon completion, legal will approximate how much time was spent on this matter
and provide a bill to Cambridge to recover some staff time.
COMMUNITY ENGAGEMENT:
None -all communications has occurred or will occur as part of the EA process.
CONCLUSION:
Providing the above authorizations at this time will allow for an expedited completion of the
various documents necessary for the construction of the Conestoga/Blair Forcemain.
Staff Re~p~r~
I~~rc~~nT~~ Finance and Corporate Services 1~eparfinent w~+w.kitthenerca
ACKNOWLEDGED BY: Dan Chapman, Deputy CAO -Finance and Corporate Services
SGHED[J1.,E "A"
CROSS BORDER ACCESS AGREEMENT
This Agreement made the day of December, 2010.
BETWEEN:
THE CORPORATION OF THE CITY OF KITCHENER
("Kitchener")
-and-
THE CORPORATION OF THE CITY OF CAMBRIDGE
("Cambridge"}
WHEREAS, the Conestoga College intends to t 'buildings and other
infrastructure within the Cambridge City Limits (the "C ampus");
AND WHEREAS in order to accommodate wast~a'ter from Cambridge Campus,
Cambridge desires to build and maintain various sewerage works within Kitchener and
requires access to, in, on, over, under, across or along a portion of Kitchener's Rights-of-
Way;
AND WHEREAS Kitchener is willing to permit the use of a portion of its Rights-
of-Way where, in its judgement, such use will not interfere with its own service
requirements and the public use of the Rights-of--Way including the consideration of the
functionality and safety and any rights or privileges previously conferred or hereafter
conferred by Kitchener by contract or otherwise on others not parties to this Agreement to
use arty of the Rights-of--Way;
AND WHEREAS Kitchener and Cambridge have agreed that it would be mutually
beneficial to outline the terms and conditions pursuant to which said consent shall be
obtained;
NOW THEREFORE in consideration of the mutual terms, conditions and
covenants herein contained Kitchener and Cambridge each agree with each other as
follows:
DEFINITIONS
In this Agreement, the following words and phrases shall have the. following
meanings:
(a) "Agreement" means this Cross Border Access Agreement complete with
Schedule "A" attached hereto;
(b) "Director" means Kitchener's Director of Engineering Services ar
designated successor, or the person designated by him or her;
790758 Page 1 of 14
(c) "Emergency" means an unforeseen situation where immediate Work is
necessary because of imminent danger to life, health or property including,
but not limited to, unscheduled interruption of Cambridge's service;
(d}
(e}
(~
(g)
"Hazardous Substance" means any hazardous substance and includes, but is
not limited to, electromagnetic or other radiation, petroleum products or bi-
products, industrial wastes, contaminants, pollutants, dangerous substances,
and toxic substances, as defined in or pursuant to any applicable law,
ordinance, rule, regulation, bylaw or code, whether federal, provincial or
municipal;
"Municipal Consent" means the written
without conditions, for access to and use
subject to the obtaining of a Work Permit
Director, with or
Rights-of--Way,
"Plant" means any of Cambridge's many handwells, pipes, conduits,
pedestals, support structures or other relat facilities or structures as are
located or planned, as may be identified on a permit application submitted to
Kitchener, to be located in the Right-of--Way;
"Prime Rate" means the prime lending rate of Kitchener's principal financial
institution carrying on business in Kitchener;
(h} "Right-of--Way" or "Rights-of--Way" means, but is not limited to, a road, a
common and public highway, street, avenue, parkway, driveway, square,
place, bridge, viaduct or trestle, any part of which is intended for or used by
the general public for the passage of Vehicles and includes the area between
the lateral property lines thereof, under the jurisdiction of Kitchener, but for
the purposes of this Agreement, shall only mean those lands described on
Schedule "A";
(i} "Subsurface Utility Engineering" means the generic process of locating
underground facilities using locating techniques at varying levels of accuracy;
(j} "Third Party" means any individual, corporation, partnership,' association,
joint venture or organization of any kind and the lawful trustee, successor,
assignee, transferee or personal representative thereof that attaches to
Cambridge's Plant under an agreement with Cambridge but does not include
direct users of Cambridge's services;
(k} "Vehicle" includes, but is not limited to, a motor vehicle, trailer, traction
engine, farm tractor, road building machine, bicycle, and any vehicle drawn,
propelled or driven by any kind of power including muscular power; and
{1) "Work" means, but is not limited to, any activities related to Cambridge's
installation, construction, maintenance, testing, operation, repair,
replacement, relocation, removal, adjustment or other alteration of Plant in,
~so~5s Page 2 of 14
on, over, along, under, above or across any Right-of--Way, including
excavation, repair or restoration of the Right-of--Way
USE OF RIGHTS-OF-WAY
2. Kitchener hereby consents to Cambridge utilizing Rights-of--Way for the purpose of
Cambridge completing its Work subject to the terms and conditions set out in this
Agreement, the applicable Municipal Consent andlor Work Fermit and in accordance
with all applicable federal, provincial and local municipal and Municipality statutes,
laws and by-laws or other rules, regulations, policies, standards and guidelines
pertaining to the application and use of the Right-of--Way or the Plant provided that
the laws, by-laws, rules, regulations, policies, standards and guideli of Kitchener
are not in conflict with applicable federal statutes or regulation.
3. Cambridge shall not utilize any Rights-of--Way in whole for any purpose
other than that permitted under this Agreement, unless a agreed to by
Kitchener and Cambridge. Upon the written request o ener, Cambridge shall
forthwith remove any Plant installed without Municipal onsent or such other
permission as granted by Kitchener and repair and restore the Right(s)-of--Way in
accordance with the requirements and obligations of subsection 8(c) and compensate
Kitchener for any reasonable and verifiable costs incurred by Kitchener with respect
to the installation and removal of the subject Plant.
APPROVAL OF DIRECTOR
4. Subject to Section 5, Cambridge shall not enter, excavate, break up or otherwise break
the surface of any Right-of--Way far the purpose of its Work without first:
{a) Obtaining the Municipal Consent of the Director andlor Work Permit as are
required for the specific Work activity, identifying the proposed location of
the Plant and proposed number of installations of Plant in, on, over, under,
across or along any such Right-of--Way as described on Schedule "A";
(b) Providing detailed construction design drawings and tender documents to the
Director's satisfaction when such are required by the Director due to the
nature of the Work setting out the proposed location of the Plant within the
relevant Rights-of--Way; and
(c) Obtaining all applicable permits from other regulatory agencies.
5. In the event of an Emergency, Cambridge shall be permitted to carry out such Work
as is reasonably necessary, minimizing impact to the extent possible in the
circumstances and, subject to Section 2, complying with any applicable Municipality
policies or by-laws to the fullest practical extent possible, to restore its service prior
to satisfying subsection 4(a). Cambridge shall take all steps necessary to provide
verbal notice to Kitchener within three (3}business days of completing its Work to
restore its service in response to such Emergency Cambridge shall satisfy subsection
4(a) and if such Emergency situation was caused by Cambridge, Cambridge shall
7sa75a Page 3 of 14
provide details of the cause of the Emergency and the actions taken to resolve such
Emergency. Such work shall be completed forthwith. All costs associated with
repairs, including fines and fees levied by other levels of government in the event of
a spill, shall be paid by Cambridge.
b. Cambridge acknowledges and agrees that Kitchener may refuse to grant Municipal
Consent with regard to any proposed application for reasons of public health and
safety, conflicts with Kitchener's infrastructure, lack of space in the Right-of--Way,
proposed road reconstruction or the proper functioning of public s es identified
by the Director. The parties expressly acknowledge that this c plies to Works
not contemplated in the approved drawings. /1
7. Notwithstanding Section 4, Cambridge may carry out r amtenance, field
testing, without the Municipal Consent of Kitchener bu ' 1 notify Kitchener prior to
performing any Work on the system, other than emergency repairs where notification
will be provided as soon as reasonably possible.
MANNER OF WORK
8. Cambridge agrees that it shall perform its Work in accordance with the following
conditions:
{a) All Work shall be conducted and completed to the satisfaction of the Director,
at the Director's sole discretion if in accordance with applicable industry
standards, this Agreement and, subject to Section 2, all applicable Federal,
Provincial and Municipal statutes, laws and by-laws or other rules and
regulations, policies, standards and guidelines as amended from time to time;
(b) The portions of the Plant which cross beneath streets, or existing buried utility
plant shall be installed in a manner satisfactory to the Director;
(c) If Cambridge breaks or disturbs the surface of aRight-of--Way, it shall repair
and restore the surface of the Right-of--Way to substantially the same or better
condition it was in before such Work was undertaken by Cambridge in
accordance with, subject to Section 2, without limitation, Kitchener's
policies, standards and by-laws, as amended from time to time, and to the
satisfaction of the Director. If Cambridge fails to repair and restore aRight-
of-Way to the satisfaction of the Director within seventy-two (72) hours of
being notified in writing by Kitchener, or such longer period as agreed to by
the parties, Kitchener may, in addition to any remedy available under
applicable by-laws, effect such necessary repairs and restoration and charge
all casts related thereto plus an overhead equal to fifteen percent (15%) to
Cambridge. In default of payment thereof, the amount of such cost with
interest equal to the Prime Rate shall be due and payable by Cambridge. Both
parties recognize that, weather permitting, final repair and restoration of the
Right-of--Way should be completed as soon as practical notwithstanding the
fact that in such instances Cambridge will have completed a temporary repair
79o~sa Page 4 of 14
or restoration to the Right-of--Way. If during the work Cambridge negatively
impacts Kitchener's existing infrastructure or a City of Kitchener facility (our
pumping station) then Cambridge is required to repair the damage at their sale
expense and to the satisfaction of the Director.
(d) Notwithstanding subsection S(c), in the event of an Emergency, Kitchener
may take appropriate measures determined necessary, by the Director, acting
reasonably, to re-establish a safe environment at the Work site. Where any
costs incurred by Kitchener in re-establishing a safe environment are
attributable to the Work of Cambridge or are a result of the presence of
Cambridge's Plant, these casts plus an overhead equal t een percent
(15%} shall be charged back to Cambridge. In defau yment thereof, the
amount of such cost with interest equal to the Prim all be due and
payable by Cambridge. ~~
(e) If Kitchener requires the Work to be stopped,~r the terms of an applicable
Work Permit, Cambridge shall cease all such ork forthwith upon receipt of
written notice from Kitchener, which notice shall contain reasons for the
Work stoppage, and leave the Work site in a safe and clean condition. Once the
reasons for the Work stoppage have been resolved to the Director's satisfaction,
the Director shall lift the stop work order in writing to Cambridge notifying
Cambridge that it may be allowed to resume its Work
{#} Cambridge shall be responsible for all excavation, installation, repair,
maintenance, replacement or removal of the Plant including the cost of such
Work when such Work is initiated by Cambridge. . In the event Kitchener
requires Cambridge to relocate the pipe for any reason, such relocation shall
be at Cambridge's cast;
(g) Cambridge shall use reasonable efforts to maintain all local traffic at all times
during construction and to coordinate work in the Rights-of--Way with
Kitchener; and
CAMBRIDGE'S WARRANTIES
9. Cambridge represents and warrants to, and covenants and agrees with, Kitchener
that:
(a) After completion of its Work, Cambridge shall leave the Right-of Way in a neat,
clean, and safe condition and free from nuisance, all to the reasonable
satisfaction of the Director and, subject to Section 2, in accordance with any
applicable policies or by-laws of Kitchener;
790758 Page 5 0# 14
{b) Cambridge warranties restoration Work performed by Cambridge within the
Right-of--Way to the reasonable satisfaction of Kitchener, for a period of two
{21) years from the date of completion.
(c) If, as per the terms allowed by this Agreement, this Agreement is terminated by
Kitchener, all the unfulf lied covenants, indemnities and obligations of
Cambridge herein shall survive such termination.
KITCHENER'SLAON-WARRANTY
10
Kitchener has made no representations or warranties as to the state of repair of the
Rights-of--Way or the suitability of the Rights-of--Way for any business, activity or
purpose whatsoever and Cambridge hereby agrees to accept Rights-of Way an an
"as is" basis. Without limiting the generality of the fore Kitchener shall not be
required to undertake any remediation or work for C s proposed work.
AS-CONSTRUCTED DRAWINGS
11.
When requested in writing by Kitchener at the ti~ of issuing Municipal Consent,
Cambridge shall at its expense and within three {3}~ months of completing the
installation of its Plant provide "as-constructed" drawings to the satisfaction of the
Director, which drawings, when created for engineered Plant, may include
appropriate certification requirements. All "as-constructed" drawings shall be
submitted in either/or a hard copy format and a digital format, to the satisfaction of
the Director.
EMERGENCY CONTACTS
12. Cambridge and Kitchener shall provide to each other a list of 24 hour emergency
contact personnel available at all times and shall ensure that the aforementioned list
is kept current.
LOCATES
13. In response to a request from Kitchener for locates for construction purposes, pre-
engineering purposes or any other reasonable purpose, or from any utility occupying
or intending to occupy the Right-of--Way, or by Cambridge as required for Work
under an approved Municipal Consent, Cambridge or Municipality, as applicable, or
its locate contractor shall, at the. expense of Cambridge or Kitchener as applicable, in
all cases subject to best efforts, complete field locates of its Plant within two {2)
weeks for construction related locates, two {2) weeks for pre- engineering purposes
or any other reasonable purpose, or otherwise within a mutually agreeable time
frame, calculated from the day of receiving such request. In the event of a valid
Emergency the locates shall be completed within four (4) hours by the appropriate
agency who is the owner of the Plant. In the event of an Emergency the party
requesting the locate will either have a representative on site or provide a contact
number for their representative in order to ensure that Cambridge, can complete the
required locates in the affected area.
~so~5a Page 6 of 14
PLANT VERIFICATION
14. Cambridge agrees to verify and validate the location of existing Plant to Kitchener for
Municipal capital planned projects using the following steps:
(a) Upon request from Kitchener, meet with Kitchener or its representatives to
identify potential design and construction conflicts;
(b) Where, in the design stage for such capital planned projects, Kitchener makes
a reasonable determination that, in order to avoid redesign work for such
project, pre-engineered field locates of Cambridge's Pl tare required,
Cambridge shall, at its cost and upon request from ener, complete such
pre-engineered locates within two (2) weeks su ' est commercial
efforts. ~
(c) Where, after Cambridge locating its plant, , ener determines that
Cambridge's Plant is not located in the ap" roved or marked-up line location
and thus the proposed project design maybe susceptible to a risk based on
Kitchener's perception of the actual location of the Plant, Cambridge shall, at
the request of Kitchener and the cost of Cambridge, undertake f eld
investigations using the appropriate daylighting or Subsurface Utility
Engineering method as agreed upon by Cambridge and Kitchener, to verify
the horizontal and vertical location of the buried Plant. Field investigations
will be undertaken using anon-destructive method, such as vacuum
excavation. The actual cost of such investigations shall be borne on a f fty
(50) percent each shared basis.
{d) If the results obtained from the field investigation demonstrate that the Plant
is not reasonably in the approved or marked up line location, Cambridge will
bear the associated full cost far the method used in the investigation.
15. If, during Municipal work or Work by Cambridge, Cambridge's Plant or Kitchener's
installations, as applicable, are found not to reasonably be in the approved or marked
up location and where Kitchener or Company determines it may or does incur any
additional costs as a result of the actual location of Cambridge's Plant or
Municipality's installations, as applicable, Kitchener or Company agrees to notify the
other party in writing of such within twenty-four (24) hours. If, after notice,
Cambridge or Municipality, as applicable, is unable to rectify the problem in a
reasonable time commensurate with the situation, Cambridge or Municipality, as
applicable, will compensate the other for any reasonable and verifiable additional
costs which the notifying party incurs resulting from the actual Plant or installation
location.
RELOCATION OF PLANT
16. Upon receipt of not less than ninety (9d) days written notice from Kitchener, or such
additional advance notice as is reasonable, having regard to the nature of the
relocation required, Cambridge shall relocate its Plant within aRight-of--Way, or
790758 Page 7 of 14
perform any other Work as maybe required as the direct result of the relocation in
connection with the Right-of--Way as may be required by Kitchener for municipal
purposes.
17. In cases of Emergency, both parties agree to work co-operatively and use their
commercially reasonable best efforts to relocate Plant immediately as directed by the
Director, provided that in cases of Emergency, Kitchener may take any measures
deemed necessary that may be required in the circumstances by the nature of the
Emergency to restore public safety with respect to the Plant.
18. Kitchener will make a good faith effort to provide alternativ tions for re-
routing the Plant affected by the relocation to assist Ca n i s efforts to ensure
uninterrupted service to its customers. ~ ,t
19. If Cambridge fails to complete the relocation or removal of the Plant in accordance
with Section 17 in a timely and expeditious manner to the satisfaction of the
Director, Kitchener may, at its option complete such relocation'or removal.
Cambridge shall pay the cost of such relocation or removal to Kitchener forthwith
plus an overhead equal to fifteen percent (15%) of such cost. In default of payment
thereof, the amount of such cost with interest equal to the Prime Rate shall be due
and payable by Cambridge;
INDEMNIFICATION AND LIABILITY
20. Cambridge shall indemnify and save harmless Kitchener from and against all actions,
causes of action, proceedings, claims and demands brought against Kitchener, and
from and against all losses, costs, damages or expenses suffered or incurred by
Kitchener, by reason of any damage to property, including property of Kitchener, or
injury, including injury resulting in death, to persons, including the employees,
servants, agents, licensees and invitees of Kitchener, caused by, resulting from or
attributable to the negligent act or omission of Cambridge or any of its employees,
servants, agents, licensees or invitees in the performance of this Agreement , or any
Third Party, its employees, servants, agents, licensees or invitees.
INSURANCE
21. Each of the parties hereto shall maintain insurance, naming the other as an additional
insured, in the amount and description as outlined in this Section as will protect the
other party from claims for damages, personal injury including death,-and for claims
from property damage which may arise under this Agreement, including but not
limited to the construction, maintenance ar operation of the Plant in, on, under, over,
along and across the Right-of--Way or any act or omission of Kitchener's or
Cambridge's employees, servants, agents, licensees or contractors. In addition to the
foregoing, each of the parties covenants and agrees that:
7so~ss Page 8 of 14
(a) the limits of liability for personal injury, bodily injury and property damage
combined shall be for not less than five million dollars ($5,000,000.00} for
each occurrence;
(b) the Commercial General Liability Insurance to include blanket contractual
liability;
{c) all policies to include cross liability with a severability of interest clause, and all
policies shall provide that they cannot be cancelled, intentionally lapsed without
at least thirty (30} days notice to the other party by registered mail;
(d) it shall maintain automobile third party liability insurance in the amount of two
million dollars ($2,000,000.00) covering all owned, leased and non-owned
automobiles used in connection with activities under this Agreement; and
(e) forward to the other a Certificate of Insurance evidencing th ance required
herein, both upon execution of this Agreement and upo newal of
insurance. ~
TERM
22. The initial term of this Agreement shall be fifty (50) years, commencing on
December 31, 2010 and shall automatically renew for two (2) additional consecutive
five (5) year periods upon the same terms and conditions contained herein, unless
terminated by either party in writing, at least ninety (90) days prior to the expiry of
the term. If the Agreement is terminated either by expiry of the term, without an
extension thereof or a replacement agreement, or as a result of default under Section
27, then, all rights and privileges under this Agreement shall come to an -end and
despite such termination, the Plant will continue to be the property of Cambridge and
Cambridge shall be permitted to maintain, test, repair and operate its Plant
Notwithstanding termination both Cambridge and .Kitchener shall continue to be
liable to the other and obligations incurred hereunder prior to the date of such
termination, except for termination as a result of Default whereupon the defaulting
party only shall continue to be liable to the non-defaulting party far all obligations
incurred under the Agreement prior to the date of such termination.
23. Cambridge shall reimburse Kitchener for Cambridge's share of the cost of waste
water treatment as charged Kitchener by the Regional Municipality of Waterloo.
Kitchener shall not assess any additional charges unless contemplated by the
Agreement herein. For greater certainty, the amount of money payable by
Cambridge shall be at the Regional Treatment Rate.
DEFAULTITERMINATION
24. Kitchener and Cambridge mutually agree that, should either party fail to
carry out any of the terms, covenants and conditions contained herein or
default in any of its obligations under the terms hereof and fail within thirty
7so~ss Page 9 of 14
(30) days after receiving written notice from the non-defaulting party to
correct or commence to correct in a fashion acceptable to the non-defaulting
party any such failure, then this Agreement may, at the option of the non-
defaulting party, be terminated by giving written notice to be effective upan
receipt. In addition to any other rights it may have under this Agreement,
the non-defaulting party shall have such other remedies as may be available
at iaw.
ASSIGNMENT
28.
This Agreement may not be sublicensed, granted, transferred or
entity other than another Municipality or similar public bo
consent of the other party. ~
~d to any
29.
upon the
Despite the sublicense, grant, transferor assignment ~fhis Agreement by
Cambridge, Cambridge will remain fully responsible to Kitchener for the
fulfillment of the obligations or liabilities of Cambridge hereunder to the date of
such sublicense, grant, transfer or assignment.
NO OWNERSHIP RIGHTS
30. No use of aRight-of--Way under this Agreement shall create or vest in Cambridge
any ownership or property rights in aRight-of--Way, and Cambridge shall be and
remain a mere non-exclusive occupant of the Right-of--Way. Placement of the
Plant in aRight-of--Way shall not create or vest in Kitchener any ownership or
property rights to the Plant, except as provided in this Agreement.
NOTICES
31. Any notice required or permitted to be given hereunder or any tender or delivery of
documents may be sufficiently given by personal delivery or, if other than the
delivery of an original document, by facsimile transmission to Kitchener at the
following address:
The Corporation of the City of Kitchener
P.O. Box 111 S
200 King Street West
Kitchener, ON N2G 4G7
Attention: Director of Engineering Services
and to Cambridge at the following address:
The Corporation of the City of Cambridge
PO BOX 669
790758 ~ Pale ~ ~ Of ~4
50 Dickson Street
Cambridge, ON N1R SW8
Attn: Director
Any notice may also be given by prepaid registered mail mailed within the
Province of Ontario and such notice shall be effective five (5) business days
following the date of mailing, except in the event that there shall be a disruption in
postal services at the date of mailing, in which case notice shall be effecti by
personal delivery or a facsimile transmission as stated above.
TREES
32. Cambridge is responsible for the costs of any remedial wc~il'~quired to rehabilitate
any trees damaged in the performance of its Work permitted by this Agreement or,
in the event any trees suffer irreparable damage as a result of the Work, Cambridge
shall replace the trees or compensate Kitchener for the value of the trees as
mutually agreed between the parties.
ENVIRONMENTAL LIABILITY
35. Cambridge agrees to assume all environmental liabilities relating to its use of the
Rights-of--Way including but not limited to any liability for clean-up of any
Hazardous Substance on or under the Rights-of--Way which result from:
{a) the operations of Cambridge in, on, under, over, above, along or across the
Rights-of--Way, or
(b) any Plant brought in, on, under, above, aver, along, or across the Rights-of-
Way by Cambridge, its contractors, agents or employees or by any person
with the express or implied consent of Cambridge.
THIRD PARTY ACKNOWLEDGEMENT
36. Cambridge agrees that it shall provide in agreements with Third Parties, a provision
that requires the Third Party to comply with all applicable laws, statues, by-laws
(including, but not limited to, obtaining a Work Permit as applicable), codes,
ordinances, rules, orders and regulations of all governmental authorities in farce,
and that the Third Party shall obtain and maintain any and all permits, licenses,
official inspections or any other approvals and consents necessary or required for
the placement or operation of the Third Party's equipment. Kitchener shall have no
obligation to notify any Third Party under any provision of this Agreement.
JOINT PLANNING
37. Each of Cambridge and Kitchener agree to joint planning sessions between users of
the Rights-of--Way and shall make reasonable efforts to promote and attend the
790758 Page 11 of 14
Same.
GENERAL
38.
39.
40.
This Agreement is the entire agreement between Kitchener and Cambridge
regarding the subject of this Agreement. This Agreement may only be amended or
supplemented by a document executed in writing by bath Kitchener and
Cambridge. ,
This Agreement benefits and binds Kitchener and Cambridge
and permitted assigns of each of them.
If any term of this Agreement is found to be invalid, illeg~c~ unenforceable by a
court having the jurisdiction to do so, that term is to be considered to have been
severed from this Agreement and this Agreement remains in force unaffected by
that finding or by the severance of that term.
41. This Agreement creates contractual rights only between Kitchener and Cambridge
and not an interest in the Rights-of--Way and Cambridge covenants and agrees with
Kitchener that Cambridge shall cease and desist from any registration of this
Agreement or of any right howsoever arising under it.
42. No amendments or waiver of any provision of this Agreement shall be binding on
either party unless consented to in writing by such party. No waiver of any
provision of this Agreement shall constitute a waiver of any other provision, nor
shall any waiver constitute a continuing waiver unless expressly provided.
43. In this Agreement, unless the context otherwise requires, the singular includes the
plural and the masculine includes the feminine gender and a corporation.
44. This Agreement shall be governed by and construed and enforced in accordance
with the laws of the Province of Ontario and the laws of Canada which may be
applicable to a party in the Province of Ontario and bath parties irrevocably attorn
to the jurisdiction of the Courts of the Province of Ontario.
45. In the performance of obligations and the exercising of rights under this
Agreement, or whenever the approval, consent or a decision is requested or
required from either party under this Agreement each party agrees that it shall at
all times act reasonably.
46. Time shall be of the essence in this Agreement.
47. Any obligation of Cambridge or Kitchener to indemnify, andlor to make any
payments or satisfy obligations incurred prior to the expiration or termination of
this Agreement, shall survive the said expiration or termination of this Agreement.
~sa75a Page 12 of 14
IN WITNESS WHEREOF the parties hereto have executed this Agreement by
their duly authorized representatives.
Dated:
THE CORPORATION OF THE CITY OI"
HITCHENER
Per:
Per:
THE CO I
CAMBRIDGE
Per:
Per:
79D758 Page 13 of 14
SCHEDULE "A"
RIGHTS OF WAY TO BE USED BY CAMBRIDGE
79fl758 Page 14 of 14
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SGHED[J1.,E "A"
CROSS BORDER ACCESS AGREEMENT
This Agreement made the day of December, 2010.
BETWEEN:
THE CORPORATION OF THE CITY OF KITCHENER
("Kitchener")
-and-
THE CORPORATION OF THE CITY OF CAMBRIDGE
("Cambridge"}
WHEREAS, the Conestoga College intends to t 'buildings and other
infrastructure within the Cambridge City Limits (the "C ampus");
AND WHEREAS in order to accommodate wast~a'ter from Cambridge Campus,
Cambridge desires to build and maintain various sewerage works within Kitchener and
requires access to, in, on, over, under, across or along a portion of Kitchener's Rights-of-
Way;
AND WHEREAS Kitchener is willing to permit the use of a portion of its Rights-
of-Way where, in its judgement, such use will not interfere with its own service
requirements and the public use of the Rights-of--Way including the consideration of the
functionality and safety and any rights or privileges previously conferred or hereafter
conferred by Kitchener by contract or otherwise on others not parties to this Agreement to
use arty of the Rights-of--Way;
AND WHEREAS Kitchener and Cambridge have agreed that it would be mutually
beneficial to outline the terms and conditions pursuant to which said consent shall be
obtained;
NOW THEREFORE in consideration of the mutual terms, conditions and
covenants herein contained Kitchener and Cambridge each agree with each other as
follows:
DEFINITIONS
In this Agreement, the following words and phrases shall have the. following
meanings:
(a) "Agreement" means this Cross Border Access Agreement complete with
Schedule "A" attached hereto;
(b) "Director" means Kitchener's Director of Engineering Services ar
designated successor, or the person designated by him or her;
790758 Page 1 of 14
(c) "Emergency" means an unforeseen situation where immediate Work is
necessary because of imminent danger to life, health or property including,
but not limited to, unscheduled interruption of Cambridge's service;
(d}
(e}
(~
(g)
"Hazardous Substance" means any hazardous substance and includes, but is
not limited to, electromagnetic or other radiation, petroleum products or bi-
products, industrial wastes, contaminants, pollutants, dangerous substances,
and toxic substances, as defined in or pursuant to any applicable law,
ordinance, rule, regulation, bylaw or code, whether federal, provincial or
municipal;
"Municipal Consent" means the written
without conditions, for access to and use
subject to the obtaining of a Work Permit
Director, with or
Rights-of--Way,
"Plant" means any of Cambridge's many handwells, pipes, conduits,
pedestals, support structures or other relat facilities or structures as are
located or planned, as may be identified on a permit application submitted to
Kitchener, to be located in the Right-of--Way;
"Prime Rate" means the prime lending rate of Kitchener's principal financial
institution carrying on business in Kitchener;
(h} "Right-of--Way" or "Rights-of--Way" means, but is not limited to, a road, a
common and public highway, street, avenue, parkway, driveway, square,
place, bridge, viaduct or trestle, any part of which is intended for or used by
the general public for the passage of Vehicles and includes the area between
the lateral property lines thereof, under the jurisdiction of Kitchener, but for
the purposes of this Agreement, shall only mean those lands described on
Schedule "A";
(i} "Subsurface Utility Engineering" means the generic process of locating
underground facilities using locating techniques at varying levels of accuracy;
(j} "Third Party" means any individual, corporation, partnership,' association,
joint venture or organization of any kind and the lawful trustee, successor,
assignee, transferee or personal representative thereof that attaches to
Cambridge's Plant under an agreement with Cambridge but does not include
direct users of Cambridge's services;
(k} "Vehicle" includes, but is not limited to, a motor vehicle, trailer, traction
engine, farm tractor, road building machine, bicycle, and any vehicle drawn,
propelled or driven by any kind of power including muscular power; and
{1) "Work" means, but is not limited to, any activities related to Cambridge's
installation, construction, maintenance, testing, operation, repair,
replacement, relocation, removal, adjustment or other alteration of Plant in,
~so~5s Page 2 of 14
on, over, along, under, above or across any Right-of--Way, including
excavation, repair or restoration of the Right-of--Way
USE OF RIGHTS-OF-WAY
2. Kitchener hereby consents to Cambridge utilizing Rights-of--Way for the purpose of
Cambridge completing its Work subject to the terms and conditions set out in this
Agreement, the applicable Municipal Consent andlor Work Fermit and in accordance
with all applicable federal, provincial and local municipal and Municipality statutes,
laws and by-laws or other rules, regulations, policies, standards and guidelines
pertaining to the application and use of the Right-of--Way or the Plant provided that
the laws, by-laws, rules, regulations, policies, standards and guideli of Kitchener
are not in conflict with applicable federal statutes or regulation.
3. Cambridge shall not utilize any Rights-of--Way in whole for any purpose
other than that permitted under this Agreement, unless a agreed to by
Kitchener and Cambridge. Upon the written request o ener, Cambridge shall
forthwith remove any Plant installed without Municipal onsent or such other
permission as granted by Kitchener and repair and restore the Right(s)-of--Way in
accordance with the requirements and obligations of subsection 8(c) and compensate
Kitchener for any reasonable and verifiable costs incurred by Kitchener with respect
to the installation and removal of the subject Plant.
APPROVAL OF DIRECTOR
4. Subject to Section 5, Cambridge shall not enter, excavate, break up or otherwise break
the surface of any Right-of--Way far the purpose of its Work without first:
{a) Obtaining the Municipal Consent of the Director andlor Work Permit as are
required for the specific Work activity, identifying the proposed location of
the Plant and proposed number of installations of Plant in, on, over, under,
across or along any such Right-of--Way as described on Schedule "A";
(b) Providing detailed construction design drawings and tender documents to the
Director's satisfaction when such are required by the Director due to the
nature of the Work setting out the proposed location of the Plant within the
relevant Rights-of--Way; and
(c) Obtaining all applicable permits from other regulatory agencies.
5. In the event of an Emergency, Cambridge shall be permitted to carry out such Work
as is reasonably necessary, minimizing impact to the extent possible in the
circumstances and, subject to Section 2, complying with any applicable Municipality
policies or by-laws to the fullest practical extent possible, to restore its service prior
to satisfying subsection 4(a). Cambridge shall take all steps necessary to provide
verbal notice to Kitchener within three (3}business days of completing its Work to
restore its service in response to such Emergency Cambridge shall satisfy subsection
4(a) and if such Emergency situation was caused by Cambridge, Cambridge shall
7sa75a Page 3 of 14
provide details of the cause of the Emergency and the actions taken to resolve such
Emergency. Such work shall be completed forthwith. All costs associated with
repairs, including fines and fees levied by other levels of government in the event of
a spill, shall be paid by Cambridge.
b. Cambridge acknowledges and agrees that Kitchener may refuse to grant Municipal
Consent with regard to any proposed application for reasons of public health and
safety, conflicts with Kitchener's infrastructure, lack of space in the Right-of--Way,
proposed road reconstruction or the proper functioning of public s es identified
by the Director. The parties expressly acknowledge that this c plies to Works
not contemplated in the approved drawings. /1
7. Notwithstanding Section 4, Cambridge may carry out r amtenance, field
testing, without the Municipal Consent of Kitchener bu ' 1 notify Kitchener prior to
performing any Work on the system, other than emergency repairs where notification
will be provided as soon as reasonably possible.
MANNER OF WORK
8. Cambridge agrees that it shall perform its Work in accordance with the following
conditions:
{a) All Work shall be conducted and completed to the satisfaction of the Director,
at the Director's sole discretion if in accordance with applicable industry
standards, this Agreement and, subject to Section 2, all applicable Federal,
Provincial and Municipal statutes, laws and by-laws or other rules and
regulations, policies, standards and guidelines as amended from time to time;
(b) The portions of the Plant which cross beneath streets, or existing buried utility
plant shall be installed in a manner satisfactory to the Director;
(c) If Cambridge breaks or disturbs the surface of aRight-of--Way, it shall repair
and restore the surface of the Right-of--Way to substantially the same or better
condition it was in before such Work was undertaken by Cambridge in
accordance with, subject to Section 2, without limitation, Kitchener's
policies, standards and by-laws, as amended from time to time, and to the
satisfaction of the Director. If Cambridge fails to repair and restore aRight-
of-Way to the satisfaction of the Director within seventy-two (72) hours of
being notified in writing by Kitchener, or such longer period as agreed to by
the parties, Kitchener may, in addition to any remedy available under
applicable by-laws, effect such necessary repairs and restoration and charge
all casts related thereto plus an overhead equal to fifteen percent (15%) to
Cambridge. In default of payment thereof, the amount of such cost with
interest equal to the Prime Rate shall be due and payable by Cambridge. Both
parties recognize that, weather permitting, final repair and restoration of the
Right-of--Way should be completed as soon as practical notwithstanding the
fact that in such instances Cambridge will have completed a temporary repair
79o~sa Page 4 of 14
or restoration to the Right-of--Way. If during the work Cambridge negatively
impacts Kitchener's existing infrastructure or a City of Kitchener facility (our
pumping station) then Cambridge is required to repair the damage at their sale
expense and to the satisfaction of the Director.
(d) Notwithstanding subsection S(c), in the event of an Emergency, Kitchener
may take appropriate measures determined necessary, by the Director, acting
reasonably, to re-establish a safe environment at the Work site. Where any
costs incurred by Kitchener in re-establishing a safe environment are
attributable to the Work of Cambridge or are a result of the presence of
Cambridge's Plant, these casts plus an overhead equal t een percent
(15%} shall be charged back to Cambridge. In defau yment thereof, the
amount of such cost with interest equal to the Prim all be due and
payable by Cambridge. ~~
(e) If Kitchener requires the Work to be stopped,~r the terms of an applicable
Work Permit, Cambridge shall cease all such ork forthwith upon receipt of
written notice from Kitchener, which notice shall contain reasons for the
Work stoppage, and leave the Work site in a safe and clean condition. Once the
reasons for the Work stoppage have been resolved to the Director's satisfaction,
the Director shall lift the stop work order in writing to Cambridge notifying
Cambridge that it may be allowed to resume its Work
{#} Cambridge shall be responsible for all excavation, installation, repair,
maintenance, replacement or removal of the Plant including the cost of such
Work when such Work is initiated by Cambridge. . In the event Kitchener
requires Cambridge to relocate the pipe for any reason, such relocation shall
be at Cambridge's cast;
(g) Cambridge shall use reasonable efforts to maintain all local traffic at all times
during construction and to coordinate work in the Rights-of--Way with
Kitchener; and
CAMBRIDGE'S WARRANTIES
9. Cambridge represents and warrants to, and covenants and agrees with, Kitchener
that:
(a) After completion of its Work, Cambridge shall leave the Right-of Way in a neat,
clean, and safe condition and free from nuisance, all to the reasonable
satisfaction of the Director and, subject to Section 2, in accordance with any
applicable policies or by-laws of Kitchener;
790758 Page 5 0# 14
{b) Cambridge warranties restoration Work performed by Cambridge within the
Right-of--Way to the reasonable satisfaction of Kitchener, for a period of two
{21) years from the date of completion.
(c) If, as per the terms allowed by this Agreement, this Agreement is terminated by
Kitchener, all the unfulf lied covenants, indemnities and obligations of
Cambridge herein shall survive such termination.
KITCHENER'SLAON-WARRANTY
10
Kitchener has made no representations or warranties as to the state of repair of the
Rights-of--Way or the suitability of the Rights-of--Way for any business, activity or
purpose whatsoever and Cambridge hereby agrees to accept Rights-of Way an an
"as is" basis. Without limiting the generality of the fore Kitchener shall not be
required to undertake any remediation or work for C s proposed work.
AS-CONSTRUCTED DRAWINGS
11.
When requested in writing by Kitchener at the ti~ of issuing Municipal Consent,
Cambridge shall at its expense and within three {3}~ months of completing the
installation of its Plant provide "as-constructed" drawings to the satisfaction of the
Director, which drawings, when created for engineered Plant, may include
appropriate certification requirements. All "as-constructed" drawings shall be
submitted in either/or a hard copy format and a digital format, to the satisfaction of
the Director.
EMERGENCY CONTACTS
12. Cambridge and Kitchener shall provide to each other a list of 24 hour emergency
contact personnel available at all times and shall ensure that the aforementioned list
is kept current.
LOCATES
13. In response to a request from Kitchener for locates for construction purposes, pre-
engineering purposes or any other reasonable purpose, or from any utility occupying
or intending to occupy the Right-of--Way, or by Cambridge as required for Work
under an approved Municipal Consent, Cambridge or Municipality, as applicable, or
its locate contractor shall, at the. expense of Cambridge or Kitchener as applicable, in
all cases subject to best efforts, complete field locates of its Plant within two {2)
weeks for construction related locates, two {2) weeks for pre- engineering purposes
or any other reasonable purpose, or otherwise within a mutually agreeable time
frame, calculated from the day of receiving such request. In the event of a valid
Emergency the locates shall be completed within four (4) hours by the appropriate
agency who is the owner of the Plant. In the event of an Emergency the party
requesting the locate will either have a representative on site or provide a contact
number for their representative in order to ensure that Cambridge, can complete the
required locates in the affected area.
~so~5a Page 6 of 14
PLANT VERIFICATION
14. Cambridge agrees to verify and validate the location of existing Plant to Kitchener for
Municipal capital planned projects using the following steps:
(a) Upon request from Kitchener, meet with Kitchener or its representatives to
identify potential design and construction conflicts;
(b) Where, in the design stage for such capital planned projects, Kitchener makes
a reasonable determination that, in order to avoid redesign work for such
project, pre-engineered field locates of Cambridge's Pl tare required,
Cambridge shall, at its cost and upon request from ener, complete such
pre-engineered locates within two (2) weeks su ' est commercial
efforts. ~
(c) Where, after Cambridge locating its plant, , ener determines that
Cambridge's Plant is not located in the ap" roved or marked-up line location
and thus the proposed project design maybe susceptible to a risk based on
Kitchener's perception of the actual location of the Plant, Cambridge shall, at
the request of Kitchener and the cost of Cambridge, undertake f eld
investigations using the appropriate daylighting or Subsurface Utility
Engineering method as agreed upon by Cambridge and Kitchener, to verify
the horizontal and vertical location of the buried Plant. Field investigations
will be undertaken using anon-destructive method, such as vacuum
excavation. The actual cost of such investigations shall be borne on a f fty
(50) percent each shared basis.
{d) If the results obtained from the field investigation demonstrate that the Plant
is not reasonably in the approved or marked up line location, Cambridge will
bear the associated full cost far the method used in the investigation.
15. If, during Municipal work or Work by Cambridge, Cambridge's Plant or Kitchener's
installations, as applicable, are found not to reasonably be in the approved or marked
up location and where Kitchener or Company determines it may or does incur any
additional costs as a result of the actual location of Cambridge's Plant or
Municipality's installations, as applicable, Kitchener or Company agrees to notify the
other party in writing of such within twenty-four (24) hours. If, after notice,
Cambridge or Municipality, as applicable, is unable to rectify the problem in a
reasonable time commensurate with the situation, Cambridge or Municipality, as
applicable, will compensate the other for any reasonable and verifiable additional
costs which the notifying party incurs resulting from the actual Plant or installation
location.
RELOCATION OF PLANT
16. Upon receipt of not less than ninety (9d) days written notice from Kitchener, or such
additional advance notice as is reasonable, having regard to the nature of the
relocation required, Cambridge shall relocate its Plant within aRight-of--Way, or
790758 Page 7 of 14
perform any other Work as maybe required as the direct result of the relocation in
connection with the Right-of--Way as may be required by Kitchener for municipal
purposes.
17. In cases of Emergency, both parties agree to work co-operatively and use their
commercially reasonable best efforts to relocate Plant immediately as directed by the
Director, provided that in cases of Emergency, Kitchener may take any measures
deemed necessary that may be required in the circumstances by the nature of the
Emergency to restore public safety with respect to the Plant.
18. Kitchener will make a good faith effort to provide alternativ tions for re-
routing the Plant affected by the relocation to assist Ca n i s efforts to ensure
uninterrupted service to its customers. ~ ,t
19. If Cambridge fails to complete the relocation or removal of the Plant in accordance
with Section 17 in a timely and expeditious manner to the satisfaction of the
Director, Kitchener may, at its option complete such relocation'or removal.
Cambridge shall pay the cost of such relocation or removal to Kitchener forthwith
plus an overhead equal to fifteen percent (15%) of such cost. In default of payment
thereof, the amount of such cost with interest equal to the Prime Rate shall be due
and payable by Cambridge;
INDEMNIFICATION AND LIABILITY
20. Cambridge shall indemnify and save harmless Kitchener from and against all actions,
causes of action, proceedings, claims and demands brought against Kitchener, and
from and against all losses, costs, damages or expenses suffered or incurred by
Kitchener, by reason of any damage to property, including property of Kitchener, or
injury, including injury resulting in death, to persons, including the employees,
servants, agents, licensees and invitees of Kitchener, caused by, resulting from or
attributable to the negligent act or omission of Cambridge or any of its employees,
servants, agents, licensees or invitees in the performance of this Agreement , or any
Third Party, its employees, servants, agents, licensees or invitees.
INSURANCE
21. Each of the parties hereto shall maintain insurance, naming the other as an additional
insured, in the amount and description as outlined in this Section as will protect the
other party from claims for damages, personal injury including death,-and for claims
from property damage which may arise under this Agreement, including but not
limited to the construction, maintenance ar operation of the Plant in, on, under, over,
along and across the Right-of--Way or any act or omission of Kitchener's or
Cambridge's employees, servants, agents, licensees or contractors. In addition to the
foregoing, each of the parties covenants and agrees that:
7so~ss Page 8 of 14
(a) the limits of liability for personal injury, bodily injury and property damage
combined shall be for not less than five million dollars ($5,000,000.00} for
each occurrence;
(b) the Commercial General Liability Insurance to include blanket contractual
liability;
{c) all policies to include cross liability with a severability of interest clause, and all
policies shall provide that they cannot be cancelled, intentionally lapsed without
at least thirty (30} days notice to the other party by registered mail;
(d) it shall maintain automobile third party liability insurance in the amount of two
million dollars ($2,000,000.00) covering all owned, leased and non-owned
automobiles used in connection with activities under this Agreement; and
(e) forward to the other a Certificate of Insurance evidencing th ance required
herein, both upon execution of this Agreement and upo newal of
insurance. ~
TERM
22. The initial term of this Agreement shall be fifty (50) years, commencing on
December 31, 2010 and shall automatically renew for two (2) additional consecutive
five (5) year periods upon the same terms and conditions contained herein, unless
terminated by either party in writing, at least ninety (90) days prior to the expiry of
the term. If the Agreement is terminated either by expiry of the term, without an
extension thereof or a replacement agreement, or as a result of default under Section
27, then, all rights and privileges under this Agreement shall come to an -end and
despite such termination, the Plant will continue to be the property of Cambridge and
Cambridge shall be permitted to maintain, test, repair and operate its Plant
Notwithstanding termination both Cambridge and .Kitchener shall continue to be
liable to the other and obligations incurred hereunder prior to the date of such
termination, except for termination as a result of Default whereupon the defaulting
party only shall continue to be liable to the non-defaulting party far all obligations
incurred under the Agreement prior to the date of such termination.
23. Cambridge shall reimburse Kitchener for Cambridge's share of the cost of waste
water treatment as charged Kitchener by the Regional Municipality of Waterloo.
Kitchener shall not assess any additional charges unless contemplated by the
Agreement herein. For greater certainty, the amount of money payable by
Cambridge shall be at the Regional Treatment Rate.
DEFAULTITERMINATION
24. Kitchener and Cambridge mutually agree that, should either party fail to
carry out any of the terms, covenants and conditions contained herein or
default in any of its obligations under the terms hereof and fail within thirty
7so~ss Page 9 of 14
(30) days after receiving written notice from the non-defaulting party to
correct or commence to correct in a fashion acceptable to the non-defaulting
party any such failure, then this Agreement may, at the option of the non-
defaulting party, be terminated by giving written notice to be effective upan
receipt. In addition to any other rights it may have under this Agreement,
the non-defaulting party shall have such other remedies as may be available
at iaw.
ASSIGNMENT
28.
This Agreement may not be sublicensed, granted, transferred or
entity other than another Municipality or similar public bo
consent of the other party. ~
~d to any
29.
upon the
Despite the sublicense, grant, transferor assignment ~fhis Agreement by
Cambridge, Cambridge will remain fully responsible to Kitchener for the
fulfillment of the obligations or liabilities of Cambridge hereunder to the date of
such sublicense, grant, transfer or assignment.
NO OWNERSHIP RIGHTS
30. No use of aRight-of--Way under this Agreement shall create or vest in Cambridge
any ownership or property rights in aRight-of--Way, and Cambridge shall be and
remain a mere non-exclusive occupant of the Right-of--Way. Placement of the
Plant in aRight-of--Way shall not create or vest in Kitchener any ownership or
property rights to the Plant, except as provided in this Agreement.
NOTICES
31. Any notice required or permitted to be given hereunder or any tender or delivery of
documents may be sufficiently given by personal delivery or, if other than the
delivery of an original document, by facsimile transmission to Kitchener at the
following address:
The Corporation of the City of Kitchener
P.O. Box 111 S
200 King Street West
Kitchener, ON N2G 4G7
Attention: Director of Engineering Services
and to Cambridge at the following address:
The Corporation of the City of Cambridge
PO BOX 669
790758 ~ Pale ~ ~ Of ~4
50 Dickson Street
Cambridge, ON N1R SW8
Attn: Director
Any notice may also be given by prepaid registered mail mailed within the
Province of Ontario and such notice shall be effective five (5) business days
following the date of mailing, except in the event that there shall be a disruption in
postal services at the date of mailing, in which case notice shall be effecti by
personal delivery or a facsimile transmission as stated above.
TREES
32. Cambridge is responsible for the costs of any remedial wc~il'~quired to rehabilitate
any trees damaged in the performance of its Work permitted by this Agreement or,
in the event any trees suffer irreparable damage as a result of the Work, Cambridge
shall replace the trees or compensate Kitchener for the value of the trees as
mutually agreed between the parties.
ENVIRONMENTAL LIABILITY
35. Cambridge agrees to assume all environmental liabilities relating to its use of the
Rights-of--Way including but not limited to any liability for clean-up of any
Hazardous Substance on or under the Rights-of--Way which result from:
{a) the operations of Cambridge in, on, under, over, above, along or across the
Rights-of--Way, or
(b) any Plant brought in, on, under, above, aver, along, or across the Rights-of-
Way by Cambridge, its contractors, agents or employees or by any person
with the express or implied consent of Cambridge.
THIRD PARTY ACKNOWLEDGEMENT
36. Cambridge agrees that it shall provide in agreements with Third Parties, a provision
that requires the Third Party to comply with all applicable laws, statues, by-laws
(including, but not limited to, obtaining a Work Permit as applicable), codes,
ordinances, rules, orders and regulations of all governmental authorities in farce,
and that the Third Party shall obtain and maintain any and all permits, licenses,
official inspections or any other approvals and consents necessary or required for
the placement or operation of the Third Party's equipment. Kitchener shall have no
obligation to notify any Third Party under any provision of this Agreement.
JOINT PLANNING
37. Each of Cambridge and Kitchener agree to joint planning sessions between users of
the Rights-of--Way and shall make reasonable efforts to promote and attend the
790758 Page 11 of 14
Same.
GENERAL
38.
39.
40.
This Agreement is the entire agreement between Kitchener and Cambridge
regarding the subject of this Agreement. This Agreement may only be amended or
supplemented by a document executed in writing by bath Kitchener and
Cambridge. ,
This Agreement benefits and binds Kitchener and Cambridge
and permitted assigns of each of them.
If any term of this Agreement is found to be invalid, illeg~c~ unenforceable by a
court having the jurisdiction to do so, that term is to be considered to have been
severed from this Agreement and this Agreement remains in force unaffected by
that finding or by the severance of that term.
41. This Agreement creates contractual rights only between Kitchener and Cambridge
and not an interest in the Rights-of--Way and Cambridge covenants and agrees with
Kitchener that Cambridge shall cease and desist from any registration of this
Agreement or of any right howsoever arising under it.
42. No amendments or waiver of any provision of this Agreement shall be binding on
either party unless consented to in writing by such party. No waiver of any
provision of this Agreement shall constitute a waiver of any other provision, nor
shall any waiver constitute a continuing waiver unless expressly provided.
43. In this Agreement, unless the context otherwise requires, the singular includes the
plural and the masculine includes the feminine gender and a corporation.
44. This Agreement shall be governed by and construed and enforced in accordance
with the laws of the Province of Ontario and the laws of Canada which may be
applicable to a party in the Province of Ontario and bath parties irrevocably attorn
to the jurisdiction of the Courts of the Province of Ontario.
45. In the performance of obligations and the exercising of rights under this
Agreement, or whenever the approval, consent or a decision is requested or
required from either party under this Agreement each party agrees that it shall at
all times act reasonably.
46. Time shall be of the essence in this Agreement.
47. Any obligation of Cambridge or Kitchener to indemnify, andlor to make any
payments or satisfy obligations incurred prior to the expiration or termination of
this Agreement, shall survive the said expiration or termination of this Agreement.
~sa75a Page 12 of 14
IN WITNESS WHEREOF the parties hereto have executed this Agreement by
their duly authorized representatives.
Dated:
THE CORPORATION OF THE CITY OI"
HITCHENER
Per:
Per:
THE CO I
CAMBRIDGE
Per:
Per:
79D758 Page 13 of 14
SCHEDULE "A"
RIGHTS OF WAY TO BE USED BY CAMBRIDGE
79fl758 Page 14 of 14
_. SCHIDULE "B"
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