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HomeMy WebLinkAboutINS-17-060 - Guelph Street Underpass Illumination MTO Agreement REPORT TO: Community and Infrastructure Services Committee DATE OF MEETING: August 21, 2017 SUBMITTED BY: Ken Carmichael,Interim Director Transportation Services 519- 741-2200 x7372 PREPARED BY: Aaron McCrimmon-Jones,Transportation Planning Project Manager, 519-741-2200 x7374 WARD(S) INVOLVED: Ward 1 & Ward 10 DATE OF REPORT: July 21, 2017 REPORT NO.: INS-17-060 SUBJECT: Guelph Street Underpass Illumination, Ministry of Transportation of Ontario (MTO) Agreement ___________________________________________________________________________ RECOMMENDATIONS: That the Director of Transportation Services be authorized to execute an agreement satisfactory to the City Solicitor, with Her Majesty the Queen in right of the Province of Ontario as represented by the Minister of Transportation for the Province to operate, repair, maintain and use the illumination within the highway on the Guelph Street Underpass, and further That the Director of Transportation Services be authorized to execute future agreements with respect to operation, repair, maintenance, and use of illumination on highways. BACKGROUND: The Ministry of Transportation, at its sole expense and cost, designed and constructed municipal illumination within Highway No. 85 on the Guelph Street Underpass structure. Under the proposed agreement, the City of Kitchener would agree, at its sole expense and cost, to operate, repair, maintain and use the Illumination within the Highway. REPORT: As shown The Ministry of Transportation designed and constructed municipal illumination within Highway No. 85 on the Guelph Street Underpass. This lighting is required to illuminate sidewalks, bike lanes and roadway that extend approximately 70 meters within the underpass. *** This information is available in accessible formats upon request. *** Please call 519-741-2345 or TTY 1-866-969-9994 for assistance. 12 - 1 The City of Kitchener will be responsible for the provision of any and all operation, maintenance and repair of the illumination, and all other work or services incidental to operations, maintenance and repair, and for any and all costs for said operations, maintenance and repair, including power consumption.The City also takes on liability with respect to maintenance, use, and operation of the lighting. As per the terms of the Agreement, The Ministry has agreed to allow the City of Kitchener to maintain and use the illumination.The City shall apply for and obtain a permit from the Ministry before conducting any work on the illumination other than routine annual or periodic maintenance. It is common practice to illuminate municipal roadways within highway overpasses, and to utilize the overpass structure to mount fixtures and conduit. Similar occurrences at other locations within Kitchener will also require agreements with the Ministry of Transportation. As such, delegated authority is being requested to enter into future agreements to operate, repair, maintain and use the illumination within highway overpasses. The term of the Agreement is one (1) year automatically renewed for further periods of one year commencing on its anniversary date unless a party gives the other sixty (60) days prior written notice to terminate the Agreement at the end of the term. ALIGNMENT WITH CITY OF KITCHENER STRATEGIC PLAN: vision through the delivery of core service, the operation and maintenance of street lights. FINANCIAL IMPLICATIONS: The City of Kitchener will operate,repair, maintain and use the illumination within Highway No. 85 on the Guelph Street underpass. Costs to maintain and operate 20 additional luminaries, at an approximate annual cost of $100 per luminaire, can be accommodated within the Transportation Services existing street light maintenance account. COMMUNITY ENGAGEMENT: INFORM advance of the Standing Committee. COLLABORATE This initiative will be completed in collaboration with the Ministry of Transportation. ACKNOWLEDGED BY: Justin Readman, Interim Executive Director, Infrastructure Services Department Attached: Appendix A Agreement No. CM16 0005 *** This information is available in accessible formats upon request. *** Please call 519-741-2345 or TTY 1-866-969-9994 for assistance. 12 - 2 Agreement No: CM160005 THIS AGREEMENT made this day of , 2016 BETWEEN: HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO, REPRESENTED BY THE MINISTER OF TRANSPORTATIONFOR THE PROVINCE OF ONTARIO (hereinafter referred to as the "Ministry") OF THE FIRST PART - and - THE CORPORATION OF THE CITY OF KITCHENER (hereinafter referred to as the "Corporation") OF THE SECOND PART WHEREAS: A.The lands comprising a public highway, being the existing King’s Highway No. 85 (the “Highway”), are vested in the Ministry and are under the jurisdiction and control of the Ministry; B.The Ministryhas,at its sole expense and cost,designedand constructedmunicipal illumination (the “Illumination”) withinthe Highway on the Guelph Street Underpass structure as shown on the sketch attached as Schedule “A”. C.The Corporation has agreed, at its sole expense and cost, to operate, repair, maintain and use the Illumination within the Highway; D.The Ministryis of the opinion that the construction, operation, maintenance and use of the Illuminationcan be carried out without unduly interfering with the public use of the Highway; E.This Agreement is deemed to be a permit to the Corporation from the Ministry under section 38(2)(a)of the Public Transportation and Highway Improvement ActR.S.O. 1990, c. P.50 as amended (“PTHIA”); F.The Corporation shall apply for and obtain a more a specific permit (“Permit”) from the Ministrybefore conducting any work on the Illuminationother than routine annual or periodic maintenancein accordance with the requirements of section 38of thePTHIAas further specified herein; and G.The Ministry has agreed to allow the Corporation to repair, maintain and use the Illumination upon the terms and conditions of this Agreement. 12 - 3 NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the premises and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: TERM 1.The term of this Agreement shall be for one (1) year commencing on the day of the issuance of the Permit, provided that the term shall be automatically renewed for further periods of one year commencing on its anniversary date unless a party gives the other not less than sixty (60)days prior written notice of its intention to terminate this Agreement at the end of the term or current renewal term. USE 2.Upon execution of this Agreement by both partiesthe Corporationmayrepair, maintain and use the Illuminationin generalas more particularly set out herein. APPROVAL 3.The Ministry grants only permission pursuant to the provisions of the PTHIA, and the Corporation shall be responsible for obtaining all approvals required from any other authority in order to carry out any activitywith respect to the Illumination. CORPORATION’S RESPONSIBILITIES 4.The Corporation shall: (a)be responsible for the provision of any and all operation, maintenance and repair of the Illumination,and all other work or services incidental to operations, maintenance and repair, and for any and all costs for said operations, maintenance and repair, including power consumption; (b)ensure that any maintenance and repair performed with respect to the Illuminationis performed promptly and in such a manner so as to cause no interference with the Highway or the use of the Highway by the public; (c)compensate the Ministry in full for any damage caused or any harm done to the Highway and associated structures and road equipment as a result of maintenance and repair performed, or not performed, as the case may be, by the Corporation with respect to the Illumination; (d)shall not attach any signs to the Illumination withinthe Highwayproperty limits without the prior written approval and/or a Permit from the Ministry. The Ministry may remove and dispose of any such signs placed without the required approval; (e)obtain prior written approval in the form of a Permit from the Ministry and comply with the terms and conditions therein for work,other than routine annual or periodic maintenance,that is to be undertaken on the Illuminationby non-Ministry personnel. The Ministry may renew the Permit upon request of the Corporation. After obtaining 12 - 4 the Ministry’s approval, the Corporation shall notify the Ministry at least seven days before carrying out any such work; and (f)be responsible for the costs and maintenance of any modifications to the Highway or its structures necessitated because of the Illumination. EMERGENCY AND HIGHWAY PURPOSES 5.Notwithstanding any other provision of this Agreement, the Ministry may suspend or terminate this Agreement at any time before the expiry of its term, if the Ministry deems, in its sole discretion, that; (a)it requires the lands under the Highway occupied by the Illuminationfor an emergency or for the purposes of installing, repairing or maintaining the Highway, or other public needs; or (b)emergency work must be carried out by the Ministry on the Highway in order to protect the travelling public and/or preserve the integrity of the Highway right-of- way; on condition that the Ministry give the Corporation oral or written notice of such emergency or need to install, repair or maintain the Highway. The Ministry shall not be liable to the Corporation for any costs incurred by the suspension or termination of this Agreement, or any costs incurred by the Corporation to restore the Illumination by reason of this Section. LIABILITY 6.The Corporation shall indemnify and save harmless at all times, including after the termination of this Agreement, the Ministry, its Minister, servants, employees, and agents from and against any and all demands, losses, costs (including reasonable legal costs), damages, injuries (including death), claims, actions or causes of action, proceedings, in any manner arising due to, out of, from, or in connection with the existence of this Agreement. 7.The Corporation shall reimburse the Ministry for all costs reasonably incurred by the Ministry to repair and maintain the Highway when the need for such repair and maintenance can be reasonably attributed to the negligent failure by the Corporation to comply with the provisions of this Agreement. 8.The Ministry shall not be liable in any manner whatsoever for any loss, injury, or damage to person or property including loss of life, by whosoever suffered, that in any way is connected to the establishment, use or the operation of the Illuminationunless caused by the negligence or the wilful act of an employee or agent of the Ministry while acting within the scope of his or her employment or agency respectively. The Ministry shall not be liable for any incidental, indirect, special or consequential damages or loss of use, revenue or profit suffered by any party arising out of or in any way connected to this Agreement. These provisions shall survive the termination or expiry of this Agreement. 9.The terms of this Agreement are hereby deemed to be terms of a Permit from the Ministry to the Corporation, pursuant to section 38(11)of the PTHIA, allowing the Illuminationto be located within the Highway property limits, and the Illuminationshall be subject to the authority of the Ministryaccordingly. 12 - 5 10.The Corporation warrants that it has taken all necessary steps, done all acts, passed all by- laws and obtained all approvals within its power required to give it authority to enter into this Agreement. TITLE IN THE MINISTRYPROPERTY LIMITS/PTHIA SECTION 33(1) UNDERTAKING 11.The parties agree that: (a)no provision of this Agreement, nor any construction, repair, maintenance or useof the Illuminationis to be construed as creating in the Corporation any right, title or interest in the Ministry’sproperty limitsor fixtures erected thereon other than the right to construct, repair, maintain and use the Illuminationin accordance with the terms of this Agreement; and (b)the Illuminationis hereby deemed to be, also a municipal undertaking of the Corporation within the Highway property limitsunder the end portion of section 33(1) of the PTHIA whereby the Corporation is liable for want of repair of the municipal undertaking whether the want of repair is the result of nonfeasance or misfeasance, in the same manner and to the same extent as in the case of any other like work constructed by the Corporation. INSURANCE 12.The Corporation shall, during theterm of this Agreement, have in place at its cost, with insurers having a secure A.M. Best rating of B+ or greater or the equivalent, a fully paid-up commercial general liability policy of insurance covering third party property damage, bodily injury and personal injury. TERMINATION 13.The Ministry may terminate this Agreement at any time, without cause, upon sixty (60) days written notice being provided to the Corporation. 14.The Ministry may terminate this Agreement, immediately upon providing notice to the Corporation, if the Corporation fails to fulfil any of the terms and conditions of this Agreement. 15.Notwithstanding Section 14,the Ministry may, in its reasonable discretion, give written notice to the Corporation of a breach of the terms and conditions of this Agreement and allow the Corporation a reasonable period of time in which to remedy the breach. 16.The Ministry’s rights under Section 14 and Section 15shall not in any manner be prejudiced even if the Ministry has overlooked or condoned any non-compliance with the terms and conditions of this Agreement by the Corporation. 12 - 6 MINISTRY’S RIGHTS ON TERMINATION 17.In the event of the termination of this Agreement, the Ministry shall be under no further obligation to the Corporation, except to recover from the Corporation anydamages, costs and expenses incurred as a result of such termination. 18.Upon the termination of this Agreement, the Corporation shall, at its sole cost and expense, remove entirely any fixtures, unless otherwise instructed by the Ministry, and restore the lands upon which the Illuminationis located to a condition at least as good as their former condition, including the replacement of any fences or other barriers present at the commencement of this Agreement. 19.Should the Corporation fail to comply with Section 18of this Agreement, the Ministry may undertake to do anything that will remedy the default and may, without foregoing any other remedies, perform the removal, restoration or replacement work and the Corporation shall be required to pay the Ministry for all reasonable costs to perform the said work. COSTS 20.The Corporation agrees to pay all costs and expenses in connection with the repair, maintenance and use of the Illuminationas set out in this Agreement. CONFLICTS 21.Where there is a conflict between this Agreement and the terms and conditions contained in a Permit issued to the Corporation, the terms and conditions contained in this Agreement shall govern. Such Permit shall have annotated on it: “this Permit is subject to the terms of anAgreementdated the day of ,2016 between the Ministry of Transportation and the Corporation.” 22.Where there is a conflict between this Agreement and the terms and conditions of other agreements that the Corporation may have entered into with another party, this Agreement shall govern. NOTICES 23.Any notices to be given under the provisions of this Agreement shall be in writing and shall be given by personal delivery or sent by facsimile or mailed by prepaid registered mail. Subject to change by either party with written notice, notice shall be addressed as follows: The Ministry: Corridor Management Section, West Region Head, Corridor Management 519-873-4578 519-873-4228 Corporation: Transportation Services 200 king St w, Kitchener, on n2g 4g7 care of Director of Transportation Services (519) 741-2200 x 7738 (519) 741-2747 12 - 7 Such notices, invoices, demands, or correspondence as aforesaid shall be deemed to have been received by the party to whom it is mailed on the third business day following theday of posting, or on the day of delivery or transmission if provided by personal delivery, or facsimile, unless delivered or transmitted on a weekend or a holiday, in which case such notice shall be deemed to have been received on the next business day. In the event in an interruption in the postal service, notice shall be given by personal delivery or facsimile. SUCCESSORS AND ASSIGNS 24.This Agreement shall enure to the benefit of, and be binding upon, the parties hereto and their respective successors and permitted assigns. 25.This Agreement may not be assigned by the Corporation without the prior written consent of the Ministry. SEVERABILITY 26.If any provision of this Agreement or portion thereof or the application thereof to any person or circumstances shall to any extent be invalid or unenforceable: (a)the remainder of this Agreement and its application to any person or circumstances shall not be affected thereby; and (b)the parties hereto will negotiate in good faith to amend this Agreement to implement the intentions set forth herein. 27.Each provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. NO PARTNERSHIP 28.The parties understand and agree that nothing contained in this Agreement shall constitute or be deemed to create a partnership or joint venture between the parties hereto. 12 - 8 APPLICABLE LAW 29.This Agreement shall be governed by the laws of the Province of Ontario and the federal laws of Canada. IN WITNESS OF ALL contained in this Agreement: Datedthisday of , 20 . HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO, REPRESENTED BY THE MINISTER OF TRANSPORTATIONFOR THE PROVINCE OF ONTARIO Head, Corridor Management Datedthis day of , 20 . THE CORPORATION OF THE CITY OF KITCHENER c.s. 12 - 9 Schedule "A" to an Agreement between the Ministry of Transportation and theCity of Kitchener Meter # KWH -191587 12 - 10