cost sharing agreement - burlington · road for finalization and public posting; xii. the councils...

COST SHARING AGREEMENT

THIS AGREEMENT made this "Lÿ date of ÿ,-.k.. , 2012

BETWEEN:

CiTY OF HAMILTON

AND -

THE CORPORATION OF THE CITY OF BURLINGTON

WHEREAS:

I= The Town of Flamborough Official Plan was initially adopted by By-law No. 88-87-0 of The Corporation of the Town Of Flamborough on June 6, 1988;

II. Official Plan Amendment No. 28 ("OPA 28") to the Town of Flamborough OfficialPlan was initially adopted by Flamborough Town Council on May 4, 1992, andfollowing a series of appeals, a revised version of OPA 28 and a relatedMemorandum of Agreement was ultimately approved by Cabinet Order datedJune 19, 2002 by Order in Council 1262/2002, as shown on Schedule 'A'attached to this Agreement, all of which expanded the Urban Area of Waterdownin the Town of Flamborough;

III. On January 1, 2001, the Towns of Ancaster, Dundas and Flamborough (includingWaterdown), the Township of Glanbrook and the Cities of Hamilton and StoneyCreek were amalgamated and became the new City of Hamilton, therebyrestructuring the former City of Hamilton and the Regional Municipality ofHamilton-Wentworth;

IV. OPA 28, as approved by Cabinet Order, identifies development of the OPA 28urban expansion areas as Stage 3, all of which is identified on Schedule Battached to this Agreement;

Page 12 of Report TS-10-12 APPENDIX "A"

V. The Town of Flamborough Official Plan contains policies at Section A.1.8 whichidentify a list of further studies that are required to support the development andbuild-out of the OPA 28 lands, including the completion of a MasterEnvironmental Assessment Transportation study;

Vl. The Master Environmental Assessment Transportation Study (known as the"Waterdown/Aldershot Transporation Master Plan Study" or "WATMP Study")commenced in 2002;

Vll. Phase 1 of the WATMP prepared by SNC Lavalin Engineers and ConstructorsLtd. confirmed the need for additional north-south and east-west capacity in theoverall transportation network in the Waterdown/Aldershot area, including thewidening of Waterdown Road, to support the development contemplated in theOPA 28 lands in the City of Hamilton;

VIii. Hamilton, Burlington and the Regional Municipality of Halton jointly retainedDillon Consulting Ltd. ("Dillon") to undertake Phase 2 of the WATMP study,

IX. Phase 2 of the WATMP prepared by Dillon provided recommendations andmeasures to increase transportation capacity in the Waterdown/Aldershot areaand a recommendation to undertake Phase 3, 4 and 5 of the Municipal Class EAPlanning and Design Process for, among other things, road improvements in theWaterdown Road Corridor;

X, The Councils of Burlington and Hamilton endorsed the WATMP Phase 2 report in2007 and directed Phases 3 and 4 of the WATMP be completed. In particular,Burlington Council directed that Phases 3 and 4 of the WATMP be completed,subject to, among other things, the inclusion of an evaluation of an option for aphased implementation of a widened 4-lane Waterdown Road that would beinitially marked as a 3-lane road, and that a Cost Sharing Agreement betweenBurlington and Hamilton for the cost of imProvements to the Waterdown Roadcorridor be reached;

Xl. !n February 2010, Hamilton Council endorsed Environmental Study Report of theWATMP dated August 4, 2009, documenting the completion of Phase 3 andPhase 4 of the Class Environmental Assessment for the widening of WaterdownRoad for finalization and public posting;

XII. The Councils of Burlington and Hamilton have agreed to enter into this CostSharing Agreement, as indentified in the Council Resolutions attached toSchedules C and D to this Agreement, respectively. Burlington will beresponsible for 5% of the total cost, on an annual indexed basis, for the cost ofproperty acquisition, design, scheduling and construction of Road Works required


to be constructed in the portion of the Waterdown Road corridor located inBurlington. Hamilton will be responsible for 95% of the total cost, on an annualindexed basis, for the cost of property acquisition, design, scheduling andconstruction of Road Works required to be constructed in the portion of theWaterdown Road corridor located in Burlington.

XlII. Burlington will be responsible for 100% of the cost of a potential futureconversion of the portion of Waterdown Road located in Burlington from a roadmarked as 3-lane road to a road marked as a 4-lane roadi

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The Hamilton 2009 Development Charge Background Study in support ofHamilton's Development Charge By-law 09-143 identifies Waterdown Roadgrowth related road works in Burlington funded fully by growth based on arecoverable cost of 90% residential and 10% non-residential developmentcharges;

The Burlington 2009 Development Charge Background Study in support ofBurtington's Development Charge By-law 49-2009identifies capacityimprovements to Waterdown Road within Burlington funded by 5% non-growthrelated funding and 95% recovered from Hamilton;

Hamilton has granted draft plan of subdivision approval and entered intosubdivision agreements with some of the owners of land within the OPA 28Stage 3 Area. A number of those subdivision agreements contain a condition asshown at Schedule E of this Agreement requiring the payment of a per unitcharge toward the cost of road works to be undertaken in Burlington fornorth/south capacity improvements required for the development of the OPAStage 3 lands, with said charge collected by Hamilton at the time of buildingpermit issuance.

THIS AGREEMENT WITNESSES that in consideration of the sum of Ten Dollars($10.00) and other good and valuable consideration, the receipt and sufficiency of whichis hereby acknowledged by the Parties, and the covenants herein contained, the Partieshereto covenant and agree as follows:

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- PART I - RECITALS AND DEFINITIONS

The Parties agree that the recitals are true and correct and form part of thisAgreement.


. In this Agreement, including in the recitals and definitions, the following terms aredefined as follows:

Agreement means this Agreement and all Schedules thereto and anydocuments incorporated by reference;

Burlington means The Corporation of the City of Burlington;

Cost of the Road Works means the cost of design, property acquisition,tendering, scheduling and construction of the Road Works;

Estimated Cost of the Road Works means the estimate of the cost of the RoadWorks prepared by Dillon Consulting Ltd., dated April 2012;

Hamilton means the City of Hamilton;

• Parties means Burlington and Hamilton;

Preferred Design means the design for the reconstruction of Waterdown Roadfrom a rural 2-lane section to an urban 4-lane section from North Service Road toMountain Brow Road in the City of Burlington identified in the Phase 2 WATMPand the Environmental Study Report dated April 2012 and prepared in support ofthe Phase 3 and 4 Class Environmental Assessment, and attached as ScheduleG to this Agreement;

Property Acquisition means all acquisition of land as set out in Part VIIinclusive of all costs including, but not limited to, appraisal, survey, legal, soiltesting, expropriation, consulting, Land Transfer Tax, HST, landscaping,damages, relocation costs and any other entitlements that may be required ascompensation pursuant to the Expropriations Act, R.S.O. 1990, c. E26, asamended, all as solely determined by Burlington, acting reasonably.

Road Works means the required road works to the Waterdown Road corridor, asdescribed in Schedule F.

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PART II- SCHEDULES

The following schedules are attached and form part of this Agreement:

Schedule A - OPA 28 approved by Order in Council 1262/2002

Schedule B - Map of Waterdown Urban Area Staging of Development

Schedule C - City of Burlington Council Resolution


Schedule D - City of Hamilton Council Resolution

Schedule E - OPA 28 Draft Plan of Subdivision Financial Condition

Schedule F - Detailed Description and Design Criteria of Road Works

Schedule G - Phase 3 and 4 WATMP and Environmental Study Report

Schedule H - Hamilton Share Cash Flow - Waterdown Road Capital Budget(2012-2017)

PART III - APPLICATION OF AGREEMENT

. The Parties agree that although the Road Works are physically located in Burlington,the necessity for the Road Works arises from the development of the OPA 28 landssituated in Hamilton as identified in the WATMP Environmental Assessmentprepared by Dillon Consulting Ltd.

. The Parties agree to utilize the authority under subsections 19(2) and 20(1) of theMunicipal Act, 2001 and subsection 2(6) of the Development Charges Act, 1997 topermit Hamilton to provide services outside of its geographical boundaries with theconsent of Burlington and to permit the Parties to enter into an agreement regardingsame.

, If a request is made by any individual or group or review agency to require thatHamilton and Burlington comply with Part 11 of the Environmental Assessment Actbefore proceeding with the Road Works (a "Bump Up"), the Parties agree that thisAgreement shall continue to apply and remain in force. In the event that thePreferred Design is modified by a Bump Up, the Parties agree that the Cost of theRoad Works, as potentially modified by a Bump Up, shall continue to be split on a- ÿ95%/5% basis between Hamilton and Burlington, respectively.

PART IV - INTER-MUNICIPAL TEAM

, Subject to the terms and conditions of this Agreement, the Parties agree thatBurlington will take the lead role in the property acquisition, detailed design,tendering, scheduling and construction of the Road Works, and will have the finalapproval authority over same.


. The Parties agree that Hamilton will have input, as described in paragraph 10 of theAgreement, into the property acquisition, design, tendering, scheduling andconstruction of the Road Works.

, To ensure that the interests, goals and concerns of both Parties are duly considered,and to provide for Hamilton's input into the process, the Parties agree to establish aninter-municipal team comprised of staff representatives from both cities.

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The inter-municipal team shall coordinate all matters concerning the approval,scheduling, design, funding, construction, operation and future maintenance of theRoad Works. The Parties agree that Hamilton and Burlington shall have equalrepresentation on the inter-municipal team. As soon as possible after the executionof this Agreement and the establishment of the inter-municipal team, it shall.cause aProject Charter to be prepared which shall set out the representation of each Partyon the team, the roles and responsibilities of each member of the team and adispute resolution mechanism and process internal to each Party to apply where theteam is unable to reach consensus on any issue within its mandate under thisAgreement. This Charter shall then be approved by the Team and forwarded toeach party in accordance with the notice provisions in Section 66 below.

The inter-municipal team shall monitor the progress and cost of each phase of theroad works and make recommendations regarding same as required

The inter-municipal team shall be made up of staff appointed by Burlington'sGeneral Manager of Community Services, or his/her designate, and Hamilton'sGeneral Manager of Planning and Economic Development or his/her designate.

.Meetings of the inter-municipal team shall be held as needed provided suchmeetings shall be held at least quarterly in each calendar year. The inter-municipalteam may provide written reports to the Council's of Burlington and Hamilton at thediscretion of the Parties.

The Parties agree that all information relating to any design detail, propertyacquisition, procurement process or contract shall be made available to the inter-municipal team forthwith upon request.

The inter-municipa! team shall be disbanded upon the substantial completion of theRoad Works.

PART V - COST SHARING AND FUNDING


16. The Parties agree that they will share the Cost of the Road Works required to beconstructed in the portion of the Waterdown Road corridor located in Burlington.Hamilton shall fund a 95% share of the Cost of the Road Works. Burlington shallfund a 5% share of the Cost of the Road Works.

17. The Parties agree that while Hamilton shall fund a 95% share of the Cost of theRoad Works and Burlington shall fund a 5% share of the Cost of the Road Works,the percentage of costs attributable to each of the Parties for the individual phasesthat make up the Cost of the Road Works shall be as follows:

a) Detailed Design - Hamilton 50% / Burlington 50%

b) Property Acquisition - Hamilton 100% / Burlington 0%

c) Tendering, Scheduling and Construction from North Service Road to north ofFlatt Road - Hamilton 100% / Burlington 0%

d) Tendering, Scheduling and Construction from north of Flatt Road to MountainBrow Road - Hamilton 93.15% / Burlington 6.85%

e) Conversion of Waterdown Road from 3-lane segment to 4-lane segment -Hamilton 0% / Burlington 100%

18. The Parties agree that the April 2012 Estimated Cost of the Road Works preparedby Dillon Consulting Ltd. is $14.09 million and that the estimated costs of theindMdual phases that make up the Cost of the Road Works are as follows:

a) Detailed Design- $0.45 million

b) Land Acquisition- $3.38 million

c) Tendering, Scheduling and Construction from North Service Road to north ofFlatt Road- $5.9 million

d) Tendering,Scheduling and Construction from north of Flatt Road to MountainBrow Road-$4.16 million

e) Conversion of Waterdown Road from 3-lane segment to 4-lane segment-$0.200 million

19. The Parties agree that the Cost of the Road Works shall be indexed annually inaccordance with the Annual Average of the Non-residential building ConstructionPrice Index - Toronto, Ontario, Stats-Can Catalogue No. 62-007-X to reflect priceincreases to the Cost of the Road Works.


20. The Parties agree that the Estimated Cost of the Road Works shall be revised afterthe Detailed Design has been completed.

21. The Parties agree that the payment of funds for the Road Works from Hamilton toBurlington shall be based on project actual costs as identified in sections 18, 19, 20,23 and 24of this Agreement. The timing and payment of funds shall be based on theproposed budgeted cash-flow for 2012 - 2017 as detailed in Scheduleÿ,H".However, in the event there is advancement in the year the Road Works commence,the respective project payments detailed in Schedule "H" will advance accordingly.Payment due dates shall be January 1 and July 1 of each year of the project, with50% of the annual project cost estimated amount being due on each of these dates.

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Hamilton agrees to pay to Burlington in the form of cash payments (Cheque ortransfer of electronic funds) on or before the required due dates of January and Julyof each year. For the calendar year 2012, 100% of the project cost estimates asprojected in Schedule "H" will be payable on July 1, 2012. The Parties further agreethat land acquisition costs to Hamilton will be determined net of appraised remnantland values which shall be deducted from gross land costs wherever possible.Hamilton agrees and acknowledges that the said amounts are estimates only andthe final payment shall be calculated on the basis of the actual costs incurred by theBurlington in completing the project works as specified in this agreement.

Subject to section 24 below, the Parties agree that in addition to any increases to theCost of the Road Works resulting fr.om annual indexing, if the actual cost of anyindividual phases identified in section 18 of this Agreement that make up the Cost ofthe Road Works for any reason exceeds the Estimated Cost of the Road Worksidentified in section 18, these additional costs shall be shaped by the Parties in thepercentage of costs attributable to each party as set out in section 17 of thisAgreement.

Where it becomes apparent that the actual or tendered cost of any phase of the roadworks has exceeded or will exceed the Estimated Cost of that individual phase of theRoad Works as set out in section 18 above by 15% or more, in addition to theannual indexing, the Parties agree that the inter-municipal team shall review thatphase of the Road Works to determine if the cost overrun is commerciallyreasonable in the circumstances. Where the inter-municipal team finds that anyactual or pending cost overrun is not commercially reasonable, it shall makerecommendations to each Party in order to limit the cost overrun. The Parties agreethat no binding Contracts for Works respecting that particular phase of the Roadworks shall be entered into pending the completion of the said review by the inter-municipal team.


25. Burlington acknowledges that Hamilton intends to fund its 95% share of the Cost ofthe Road Works through a charge for growth related road works for development ona city-wide basis imposed through the current Hamilton Development Charge By-law09-143 and future successor Development Charge By-laws.

26. Hamilton acknowledges that Burlington intends to fund its 5% share of the Cost ofthe Road Works through non-growth related funding.

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The Parties agree that each party shall be solely responsible for satisfying itsfunding obligations imposed by this Agreement.

The Parties agree that if a .party to the Agreement cannot for any reason satisfy itsfunding obligations imposed by this Agreement through its intended funding source,that party shall be solely responsible for obtaining an alternative funding source tosatisfy its funding obligations imposed by this Agreement.

City of Hamilton Development Charge By-law 09-143 has been appealed to theOntario Municipal Board. The Parties agree that Hamilton will defend the inclusionof Waterdown Road as a growth related road work.

Prior to the growth related works in Burlington being included in the BackgroundStudy for Hamilton's Development Charges By-law, Hamilton granted draft plan ofsubdivision approval and entered into subdivision agreements with certain owners oflands within the OPA 28 Stage 3 area. A number of those subdivision agreementscontain a financial condition requiring the payment of a per unit charge toward thecost of road works to be undertaken in Burlington for north/south capacityimprovements required for the development of the said OPA 28 Stage 3 lands, withsaid charge to be collected by Hamilton at the time of building permit issuance andpaid by Hamilton to Burlington.

The Parties agree that Burlington shall be responsible for 100% of the cost of apotential future conversion of the portion of Waterdown Road located in Burlingtonfrom a road marked as 3-lane road to a road marked as a 4-lane road.

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PART Vl - DESIGN OF ROAD WORKS

The Parties agree that the reconstruction of Waterdown Road shall be based on thePreferred Design.

The Parties agree that Burlington will take the lead in the preparation of the detaileddesign of the Road Works.


34. The Parties agree that Burlington's existing tender procedures and policies will befollowed and utilized for the tendering of the design of the Road Works.

35. The Parties agree that the reconstructed Waterdown Road shall be configured to a3-lane cross section with on-road bike lanes and a centre left turn lane. The Partiesacknowledge that traffic growth resulting from the development of the Cabinetapproved OPA 28 Stage 3 lands necessitated the preparation of an environmentalassessment to consider the re-marking of the 3-lane cross section to provide a 4-lane section of roadway.

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The Parties agree that the Road Works will be designed and constructed inaccordance with Burlington standards or (where necessary) the TAC GeometricDesign Guides for Canadian Roads.

The Parties agree that the cost of the detailed design of the Road Worksshall besplit between Hamilton and Burlington on a 50% / 50% basis, respectively, pursuantto Part V of this Agreement.

The Parties agree that the Road Works are to be constructed based on the detaileddescription and design criteria attached as Appendix F to this Agreement.

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PART VII - PROPERTY ACQUISITION

The Environmental Study Report prepared in support of the Phase 3 and 4 ClassEnvironmental Assessment for the WATMP identified a number of properties andportions of properties that are needed to be acquired to accommodate the RoadWorks.

The Parties agree that the owners of those properties that are required to beacquired in whole or in part to accommodate the Road Works shall be compensatedfinancially.

The Parties agree that for the acquisition and determination of resultingcompensation for those properties in Burlington that are required to accommodatethe Road Works, Burlington will take the lead role in the negotiation, purchase andacquisition of the said properties in accordance with standard municipal propertyacquisition protocol. Burlington's Manager of Realty Services shall lead thisprocess, subject to any required approval by Burlington Council.

The Parties agree that the cost of the acquisition of those properties in Burlingtonthat are required to accommodate the Road Works shall be split between Hamilton


and Burlington on a 100% / 0% basis, respectively, pursuant to Part V of thisAgreement.

43. The Parties agree that the negotiations and processing of the acquisition of therequired properties may commence upon the execution of this Agreement, and inany event prior to the completion of the detailed design of the Road Works.

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Burlington agrees to use its best efforts to acquire lands for the subject road worksthrough dedications of land as a condition of development approval whereverpossible.

The Parties agree that, in the event lands are acquired that are surplus to therequirements of the Road Works, an independent appraisal of the reasonable valueof these surplus lands will be made and this amount will be deducted from any fundsowing by Hamilton to Burlington pursuant to this agreement as set out in Schedule"H". Burlington will then be free to retain or sell these excess lands at its solediscretion.

The Parties agree that Burlington will consult with the inter-municipal team regardingproperty acquisition for the purpose of monitoring costs as contemplated in section24 above at the following key milestones, namely:

i) upon completion of the appraisals of the properties to be acquired; and

ii) prior to any decision being made as to whether or not to proceed withexpropriation.

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PART VIII -TENDERING, SCHEDULING AND CONSTRUCTION OF. ROAD

The Parties agree that Burlington will take the lead in the tendering andscheduling of the construction of the Road Works.

The Parties agree that Burlington's current tender procedures and policies, asamended from time to time, will be followed and utilized for the tendering of theconstruction of the Road Works.

The Parties agree that Burlington will be solely responsible for resolving anydisputes or litigation arising out of its tender or procurement processes andprocedures related to the road works at no cost to Hamilton.

The Parties agree that the cost of tendering and scheduling the construction ofthe Road Works, and the cost of the construction of the Road Works, shall be


split between Hamilton and Burlington as follows, pursuant to Part V of thisAgreement:

a) Tendering, Scheduling and Construction from North Service Road to north ofFlatt Road - Hamilton 100% / Burlington 0%;

b) Tendering, Scheduling and Construction from north of Flatt Road to MountainBrow Road - Hamilton 93.15% / Burlington 6.85%.

PART iX - PHASING OF ROAD WORKS AND TIMING OF PAYMENTS

51. The Parties agree that the design, property acquisition, scheduling andconstruction of the Road Works shall be generally phased as follows:

a) Detailed Design of Road Works- to be completed in 2013.

b) Land Acquisition Required for Road Works- to be completed by 2014.

c) Construction of Road Works from North Service Road to north of Flatt Road-to be commenced once 1,700 new residential dwelling units have beenapproved by the City of Hamilton in the Cabinet approved OPA 28 Stage 3lands, as defined in Schedule B to this Agreement. The Parties estimate thatthis will occur in 2015.

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d) Construction of Road Works from north of Flatt Road to Mountain Brow Road-to be commenced once 3,000 new residential dwelling units have beenapproved by the City of Hamilton in the OPA 28 Stage 3 lands, as defined inSchedule B to this Agreement. The Parties estimate that this will occur in2017.

e) Conversion of Waterdown Road from 3-lane section to 4-lane section- to becommenced once traffic volumes and levels of service necessitate the re-marking of Waterdown Road.

The Parties agree to use their reasonable efforts to adhere to the phasingschedule and to reflect said schedule in their respective Capital Budget andForecasts.


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PART X - MAINTENANCE, IMPROVEMENT, AND REPAIR OBLIGATIONS

The Parties agree that Burlington shall continue to. be responsible for themaintenance, improvement and repair obligations to the portion of WaterdownRoad within Burlington, at its own expense.

PART Xll - TERMINATION AND MODIFICATION OF AGREEMENT

54. This Agreement constitutes the sole agreement between the Parties with respectto the subject matter hereof. There is no collateral agreement, condition or termapplicable thereto, other than as expressed or referred to in writing. The Partieshereto may only amend this Agreement by further agreement in writing executedby all Parties hereto.

This Agreement may be terminated on the consent of both Parties in writing.

The Parties acknowledge that the jurisdiction and responsibility for WaterdownRoad may be uploaded to the Region of Halton as part of a future Arterial RoadRationalization between the Region of Halton and the Parties.

PART XIII - DISPUTE RESOLUTION

57. In the event of a disagreement between the Parties, the party giving notice of thedispute shall within thirty (30) days of becoming aware of a dispute deliver to theother party a notice of dispute setting out the nature of the dispute and theproposed remedy together with any documents or reports upon which the partyintends to rely.

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58. The party receiving notice of a dispute shall, within thirty (30) days of receipt ofthe Notice of Dispute advise the other party in writing whether or not it acceptsthe existence of a dispute between the Parties and, if so, whether or not itaccepts the remedy proposed by the other party.

If the party receiving notice of a dispute does not accept the existence of adispute between the Parties or the remedy proposed by the other party, it shalldeliver to the other party a notice of objection setting out in writing the fullparticulars of its grounds for denying the existence of a dispute or the proposedremedy or both, as the case may be. If the party receiving the notice of thedispute fails to respond to the notice of dispute within the time frame specified inparagraph 55, it shall be conclusively deemed to have accepted both theallegation of the dispute set out in the notice of dispute and the remedy proposed


therein. In such circumstances, the party receiving notice of the dispute shallproceed, forthwith, to implement the remedy proposed by the other party.

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If the party receiving notice of a dispute serves a notice of objection, the disputeshall be submitted to mediation. The Parties shall, within ten (10) days of receiptby the party giving notice of the dispute Of the notice of objection, agree in writingupon a mediator to be appointed. Any mediator so appointed shall be deemedconclusively to have been irrevocably appointed by the Parties. The mediatorappointed pursuant to this Agreement shall determine all matters relating themediation, including, without limitation, all matters relating to procedure andscheduling of meetings. The mediation shall be completed within forty five (45)days of delivery of the notice of objection, unless extended by agreement of theParties. The Parties shall participate in the mediation in good faith and in amanner consistent with the principles of this Agreement. Costs of the mediationshall be borne equally by the Parties. Each party shall be responsible for its owncosts in respect of the mediation. The Parties acknowledge that mediationpursuant to this paragraph is a condition precedent to submission of the disputeto arbitration in accordance with paragraph 58 hereof. The Parties agree thatmediation sessions are settlement negotiations. Neither Hamilton or Burlingtonshall rely on, no introduce as evidence in any subsequent arbitration or courtproceeding any view expressed or Suggestion .made by a party regarding thepossible settlement of the dispute, any admission made by any party during thecourse of the mediation, nor the fact that any party had shown a willingness toaccept a proposal or recommendation for settlement made during the mediation.The Parties shall not subpoena or otherwise require the mediator to testify orproduce records, notes or other documents produced or used in the mediation.

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If the mediation does not result in the resolution of the dispute, or if the mediationis terminated, then the dispute shall be resolved by arbitration in the mannerdescribed below:

a) The Parties, acting reasonably, shall retain a mutually acceptable arbitratorwho is available to resolve the dispute within the time limits specified in thisAgreement;

b) The arbitrator:

Shall be given the notice of dispute and notice of objection,together with all relateddocuments and reports that have beendelivered by the Parties to each other;


62. All rights and obligations of Hamilton and Burlington under this Agreementcontinue during, and despite, the process provided for in Part XlII of thisAgreement, without prejudice of the right of each party to dispute such right orobligation.

PART XlV - INDEMNIFICATION AND INSURANCE

63. Hamilton and Burlington hereby indemnify and save each other harmless fromany third party claims arising by reason of a default of one of the Parties to thisAgreement.

64. Hamilton and Burlington shall obtain insurance which will cross insure the otherin an amount which shall be determined by the inter-municipal team. Eachparty's insurance policy shall include a cross-liability clause and severability ofinterest clause which insures each party from claims made by the other party.Each party shall be responsible for its own.insurance premium.

PART XV - GENERAL PROVISIONS

65. This Agreement and all of the terms, covenants, conditions and other previouscontained herein and all of the obligations under or pursuant to this Agreementshall be binding upon and shall enure to the benefit of the Parties hereto andtheir respective successors and assigns.

66. Any notices to be given under the terms of this Agreement shall be in writing andshall be given to the applicable party:

To:

To:

General Manager of Community Services, City of Burlington

City Hall

426 Brant Street, P.O. Box 5013

Burlington, Ontario

L7R 3Z6

General Manager of Planning and Economic Development, City ofHamilton


ii) May be given material by either party to the dispute, in addition tothe documents described in clause (i), provided such material isimmediately delivered to the other party;

iii)

d)

e)

c)

May determine the dispute by such procedure as the arbitrator inhis or her own discretion considers appropriate. It isacknowledged, and agreed to by Hamilton and Burlington, thatsuch procedure may not necessarily involve a formal hearing;

iv) May conduct such tests, make such inquiries, inspect suchdocuments and do such things as the arbitrator considersnecessary or desirable for the purpose of determining the disputeand Hamilton and Burlington shall co-operate fully andunreservedly with the arbitrator in respect of such tests, inquiries,inspections and things;

v) Shall render a decision in writing, with or without reasons, thatdetermines the dispute, including any remedy, as soon aspracticable after the dispute has been referred to the arbitrator and,in any event, no later than fifteen (15) days after the dispute hasbeen so referred, provided that failure to render a decision inrespect of any dispute referred to arbitration hereunder within thetime specified herein shall not vitiate any decision rendered afterthe time limit has expired; and

vi) Shall not alter, modify or amend any part of this Agreement andshall not make any decision inconsistent with the principles in, andthe provisions of, this Agreement.

The determination of the dispute by the arbitrator is final and binding and shallnot be subject to appeal or review;

Burlington and Hamilton shall be equally responsible for the fees anddisbursements, including taxes, of the arbitrator. The Parties shall each beresponsible for all of their own costs incurred in respect of the arbitration ofthe dispute; and

Burlington and Hamilton shall promptly .take every action necessary to fullyand unreservedly implement the decision of the arbitrator and shall refrainfrom taking any action that is contrary to the decision of the arbitrator in anyway whatsoever.


Attn: Director of Growth Management

71 Main Street West

Hamilton, Ontario

L8P 4Y5

67. If any individual provision(s) of this Agreement is or are determined by a Court orTribunal of competent jurisdiction to be illegal or beyond the power, jurisdiction orcapacity of any party bound hereby and any appeal period has expired and anyappeals commenced during that period have been finally determined, suchprovision shall be severed from this Agreement and the remainder of theAgreement shall continue in full force and effect. In such case, the Parties agreeto negotiate in good faith to amend this Agreement in order to implement theintentions as set out herein.

68. The Parties covenant and agree with each other not to call into question orchallenge, directly or indirectly, in any proceeding or action in court, or before anyadministrative tribunal, the party's right to enter into and enforce this Agreement.

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Nothing herein contained shall be deemed or construed so as to make, render orconstitute any of the Parties hereto partners with one another.

Notwithstanding any other provisions in this Agreement, the Parties hereto agreewith each other that none of the provisions of this Agreement is intended tooperate, nor shall have the effect of operating, in any way to fetter eitherMunicipal Council which authorized the execution of this Agreement or any oftheir successor councils in the exercise of Council's discretionary powers, dutiesor authorities.

This Agreement shall be governed by the laws of the Province of Ontario and thelaws of Canada applicable therein.

Words importing the singular include the plural and vice versa. Words importinggender include all genders.

Each agreement and obligation of each party hereto in this Agreement, eventhough not expressed as a covenant, shall be considered for all purposes to be acovenant.

All references to currency in this Agreement shall be deemed to be references toCanadian dollars.


Time shall be of the essence of the Agreement and every part thereof.

This Agreement may be executed in counterpart, and where each party heretohas executed a copy hereof, then all executed copies shall together form a singleand binding agreement between the Parties.

77. The Parties covenant and agree that at all times and from time to time hereafterupon every reasonable written request so to do, they shall make, execute, deliveror cause to be made, done, executed and delivered, all such further acts, deeds,assurances and things as may be required for more effectively implementing andcarrying out the true intent and meaning of this Agreement.

IN WITNESS HEREOF, the Parties have hereunto executed this Cost SharingAgreement by the hands of their authorized officers:

• THE CORPORATION OF THE CITY OF BURLINGTON

Per:

Mayor

Per:

CITY OF HAMIL"

Per:

tÿ,. Mayor

Per:

APPROVED

Clerk

l/We have the authority to bind the Corporation.

Clef

I/We have the authority to bind the Corporation.

t OFFICE OF THE CLERKI AP.PROVED BY COUNCIL

I AUTHORITYÿ,=ÿ-,.Jjÿ" ÿtZ'L- 1,.¥, ,,.'L-ÿ_ Sq t .


SCHEDULE "B" Map ofWaterdown Urban AreaStaging of Development

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WATERDOWNURBANARENA

STAGING OFDEVE, LOPMEN]

SCIIEDIJLE G" "lOOP|=ICIAL PI.At4AMEIIDMEI|ÿ" tlO. 20

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SCHEDULE "C"-.City of Burlington Council Resolution

REGULAR MÿEETING OF COUNCIL NO. 4-10 FEBRUARY 22, 2010 PAGE 13

14pprove th.e Buriington Youth Sÿlub Canadlaa S1ÿield Tomÿamerÿ at Shmmy6-dÿForest Park, July 27 through August 1, 2010, subjectto the terms and conditionsSpecial Event Team; and. . . " S

Approve the following road race events, subject to the terms and condiÿ6 .ns of the Special--Event Team: . j" "

1. Run-for.-Water fundraising walk/run by Water-for-Life,sOÿtario in North B.urlingtonon May 29, 2010, "

2. The Amazing Bed Race by the Rotary Club of B/ÿftington North in downtownBurlington on Sunday September 26, 2010y/

Approve the expansion of the Burlington Art/(24ntre' s Festival of Fine Art and Craft toinclude a one lane road closure of Nelsonÿenue between Lakeshore Road and Elgin Streeton June 11, 12, and 13, 2010, subject t/o'ihe terms and conditions of the Special Event Team;

Approve the extension of beyond 11 p.m. for fireworks on Thursday June 17,Friday June 18, and ffft/ÿn minutes beyond 11 p.m. on Saturday June 19, 2010 at the Sound0fMusic Festival, sÿect to the terms and conditions of the Special Events Team and thatthe request fo.//y.,000 of additional funds be forwarded to the curreht budget process; and

Do nÿival and event programmingand activities, including licensed areas, onthud T avelodge Hotel within the Brant Street Pier District including

oarÿ, construction period. (PR- 11-10-1)

APPROVAL OF THE WATERDOWN ROAD, K]NG ROAD, AND KERNS ROADENVIRONMENTAL ASSESSMENT AND UPGRADE RECOM2vÿNDATIONS

Approve the draft Environmental Study Report (ESR) dated August 4, 2009 by Dilloncorisÿlting Ltd. documenting the completion of Phase 3 and 4 of the Class EnvironmentalAssessment for the widening of Waterdown Road between the North Service Road andMountain Brow Road for finalization and for presentation to the residents on WaterdownRoad at a Public Information Centre (PIC) to be held before final issuance of the "Noticeof Completion" as per the Municipal Class Environmental Assessment" document; and

Approve the .King Road Feasibility Assessment dated November 20Q9 by DillonConsulting Ltd. documenting the preliminary alternative designs and evaluations of KingRoad between the North Service Road and Mountain Brow Road; and

Approve the recommended alternative of "rehabilitation" of King Road to a two laneroad standard from the base of the escarpment to the Mountain Brow Road as presentedin the King Road Feasibility Assessment as ÿ/Class Environrrlental Assessment"Schedule A+" undertaking; and

Approve the recommended traffic management scheme (one way restriction) on KemsRoad at the top of the escarpment for implementation in 2010 as presented in EngineeringDepartment report E-04-!0, dated January 15, 2010; and


REGULAR MEETING OF COUNCIL NO. 4-10 FEBRUARY 22, 2010 PAGE 14

Approve the recommended cost-sharing of the widening and improvements toWaterdown Road between the North Service Road and Mountain Brow Road with theCity of Hamilton as presented in Engineering Department report E-04-10, dated January15, 2010 in principle; and

Approve a copy of this report to be circulated to the City of Hamilton, ConservationHalton, the Niagara Escarpment Commission, all of the affected residents on WaterdownRoad and King Road and all the participants and contacts from previous Kerns RoadPublic Information Centres (PIC's). (E-04-10)

.. - T REQUEST Iÿ,rG APPROWÿ

Refer consideration of Engineering Department report E-24-10, date/d/January 22, 2010regarding maintaining the present three lane section of Lakeshoÿ,Koad, to the March 3,2010 Community Services Committee. /

DIRECTION TO REPORT ON THE RESULTS OF THE WA/TERDOWN ROAD PUBLICINFORMATION CENTRES (PIC)

/Direct the Director of Engineering to report o/n4he results of the Waterdown Road PICprior to the issuance of the "Notice of Completion" for the Phase 3 and 4 ClassEnvironmental Assessment for the widen)fig of Waterdown Road. (Councillor Craven)(CC-5-10) /

ELEVEN ITEMS FOR RECEIPT:/

THAT the following eleven items, haj4ng been given due consideration by the Community andCorporate Services Committee, b./ÿceiTed 7d filed:

• Burlington Sound of Music Festival Power Point presentation by Gerry Murphy,President, Sound of 1Vÿuÿsic Festival, regarding the report requesting approval of the 2009outdoor festivals an0/events annual report and proposed May 2010-May 2011 festivalsand events program. (PR-11-10-2, February 9, 2010)/

• Delegation matÿial from Brian Coleman, Burlington Transit Advisory Committee, ..ÿ.regarding the/report recommending approval of a fare increase for Burlington Transit.(Tr-01-10/ÿ Feb.re.7 10, 2010)

,, Delegatiÿin material from Joan Gallagher- Bell and Kathy Bonham Brown, MayorsSeniors/Advisory Committee regarding the report recommending approval of a fareincreÿe for Burlington Transit. (TT-01-10-3, February 10, 2010)

/_• Djffegation material from Doug Brown regarding }he report recommending approval of a

rlington Transit. (TT-01- i 0-47February i


. .÷

SCHEDULE "D" - City of Hamilton Council Resolution

Public Works CommitteeMinutes

3 February i, 2010

4, Waterdown Road Corridor Class Environmental Assessment '- Environmental Study Report (PW10010) (Ward 15) (Item 7.2)

(McCarthy/Jackson)(a) That the Waterdown Road Corridor Class Environmental Assessment

Phases 3 and 4, Environmental Study Report (ESR). be endorsed and theGeneral Manager of the Public Works Department be authorized anddirected to file the ESR, as pei the Municipal Class EnvironmentalAssessment (October 2007), on the public record with the MunicipalClerk for a forty-five day public review;

(b) That upon the completion of the forty-five daY Publicreview, the GeneralManager of the Public Works Depa'rtment be authorized and directed toprogram and include the recommended projects road design in theEnvironmental Study Report in the capital budget for future years,provided no comments or "bump-ups" are received that cannot beresolved, or Part I1 Orders issued;

(c) That the Cities of Hamilton and Burlington enter into a legal agreementon the cost funding arrangement for the portion of construction roadworks in the City of Burlington limits for the Waterdown Road Corridorand that the General Manager, Public Works, be authorized to enter intoand negotiate the agreements; and,,

(d) That the Citiesof Hamilton and Burlington enter into a legal agreementfor the scheduling of works related to property acquisition and roadconstructio:n including detailed design for the road works that fall withinthe City of Burlington and that the General Manager, Public Works, beauthorized to enter into and negotiate the agreements;

(e) That the Mayor and City Clerk be authorized and directed to execute theagreements referred to in sub-sections (c) and (d), in a form satisfactoryto Legal Services. CARRIED as amended

, Chamber Of Commerce Correspondence respecting Transit Governance(PW10002) (City Wide) (Outstanding Business Item)(Item 8.1)

(Ferguson/Collins)(a) That the presentation, by .Dan Rodrigues, Chair of the Transportation

Committee of the Hamilton Chamber of Commerce, be received;

(b) That Report PW10002 respecting Chamber of CommerceCorrespondence respecting Transit Governance, be received.

CARRIED


Schedule E - OPA 28 Draft Plan of Subdivision Financial Condition

20. That, prior to registration of the final plan of subdivision, the Owner agrees topay the following toward the cost of road works to be undertaken in the City ofBurlington as approved by the Council of the City of Burlington for thenorth/south capacity improvements which are required for the development of theOPA 28 lands, to be collected by the City of Hamilton at the time that buildingpermits are issued, and to be paid to the City of Burlington at the time that theconstruction tender for the road works is approved:

(a) $2,500.00 per single detached dwelling or semi-detached dwelling; and,

(b) $1,980.00 per multiple unit dwelling which includes but is not limited totownhouses, street townhouses, or stacked townhouses, duplexes orlive/work units.

This condition is designed to address the City of Burlington's concerns respectingneed for north/south capacity road improvements located in the City ofBurlington. The Ontario Municipal Board has approved this specific condition onthe understanding that it is not to be considered as a precedent nor to in any wayprejudice the rights or positions of any persons as to the appropriate amounts orprocess for any future development charges or similar requirements relating toimprovements to be undertaken in the City of Burlington relating toimprovements to OPA 28 lands. Specifically, the issues of required facilities andcosts, and whether any such development charges should be determined on anarea specific or city wide basis are issues that remain to be determined during anyDevelopment Charges By-law process, or other cost apportioning process,independentlyÿofthis decision. Further, Condition 20 is approved on theunderstanding that Silverwood Homes Ltd. Shall be subject to any futurerevisions of development charges or this condition that may be determinedrelating to improvements to be undertaken in the City of Burlington, whether thisresuks in increases or decreases in the amounts set out in Condition 20.


//'/

// , 1/

fI MOUNTAIN BROW RD

iJ; - /

i .ÿ._______..ÿ Waterdown Roaÿ

/ Construction Limits

" ' o ' ! ÿ

Schedule F - Detailed Description and DesignCriteria of Road Works

*The detailed description and design criteria of roads works can be found within theWaterdown Road Corridor Class Environmental Assessment Environmental StudyReport (April 2012).

4ÿ

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Schedule H -Waterdown Road Capital Project, Hamilton's Share of Capital Budget

WÿfÿrdiOÿnÿ Road Budgeted CashflowHamilton Share - Cash Flow Capital Budget ($'s)

i T0tal EstimatedExpenses (note 1) C6st atApril 2012 Totals Pre-2012 2012 2013 2014

$ 450,0001':' ' 225,000 225,000• I $ '3,3801000:i 3,380,000 .ri',690,000 ÿ1 690,000 .

Detailed DesignLand Acquisition (note 2)

Conversion to 4 laneTotals

2015 2016 "4 L

$: '.- 1 !0 060,000 9,775,000$. }: 200,000$ 14,090,000 13,380,000 1,915,000 1,690,000

i75,.900,000 3 87.51Q00

5,900,000 3,875,000

Note 1iApnt!a!"Payÿent D'rue datesÿill be january 1 and July !, with 50% of theannual budgeted cost estimate amounts dueoq .each:0f these dates.F6ÿ20:.,1217:i00% Of the project COSt budgeted amount will be due andpayable on Juiy":ÿ/; 2012. ::ÿ . -ÿ ÿ . . .". , "-/,' ÿ :i.,B..ÿ'ÿJiÿÿiÿiiÿnld::' Harnilt0n agreeÿand"ÿcknowledge the pr0jfÿct budget costs are estimates.onlyÿ iFinal paÿiment from Hamilton shallbe calculated on the,'ÿbÿasiÿ,:6f:Jtb"e aCtUal iÿbsts incurred bylthe: Burlington in c0mpieting: the :Project works as Specified inthis :agreement;with final tender/contract awards,i .:ÿ,Note 2Land acquisition costs are to be determined net of appraised remnant land revenues. Example; Cost of land = $1 million.Land size required for road = 50%. Cost of land to Hamilton would be only for the land required for road.Appraised value for any remnant pieces to be deducted from Gross land costs.


cost sharing agreement - burlington · road for finalization and public posting; xii. the councils...

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