Bill No.

By-law No.

A By-law to authorize an Agreement between The Corporation of the City of London and Her Majesty the Queen in Right of represented by the Minister of Transportation, and to authorize the execution the Agreement.

WHEREAS section 5(3) of the Municipal Act, 2007 S.O. 2001, c.25, as amended, provides that a municipal power shall be exercised by by-law;

AND WHEREAS section 9 of the Municipal Act, 2001 provides that a municipality has the capacity, rights, powers and privileges of a natural person for the purpose of exercising its authority under this or any other Act;

AND WHEREAS section 23(1) of the Municipal Act, 2001 authorizes the municipality to delegate its powers and duties to a person;

AND WHEREAS it is deemed expedient for The Corporation of the City of London (the "City") to enter into an Agreement with Her Majesty the Queen in Right of Ontario represented by the Minister of Transportation for the reconstruction and rehabilitation of the Highway 401 and Highbury Avenue (the "Agreement");

AND WHEREAS it is deemed expedient to authorize the Acting General Manager Environmental and Engineering Services and City Engineer to execute the Agreement on behalf of the City;

NOW THEREFORE the Municipal Council of The Corporation of the City of London enacts as follows:

1. The Agreement substantially in the form attached as Schedule "A to this By-law, being an Agreement with Her Majesty the Queen in right of Ontario represented by the Minister of Transportation for the reconstruction and rehabilitation of the Highway 401 and Highbury Avenue interchange is hereby AUTHORIZED AND APPROVED.

2. The Acting General Manager Environmental and Engineering Services and City Engineer is hereby authorized to execute the Agreement authorized and approved under section 1 of this by-law.

3. This by-law shall come into force and effect on the day it is passed.

PASSED in Open Council ,2008

Anne Marie DeCicco-Best Mayor

Kevin Bain City Clerk First reading - Second reading - Third reading - SCHEDULE 'A'

THIS AGREEMENT is made this day of ,200 between: THE CORPORATION OF THE CITY OF LONDON ("LONDON") and: HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO, REPRESENTED BY THE MINISTER OF TRANSPORTATION FOR THE PROVINCE OF ONTARIO (the "MTO)

WHEREAS:

A. Attached Schedule "A illustrates:

the existing and proposed crossing of London's road known as Highbury Avenue over the King's Highway 401 by means of an underpass structure; access between Highbury Avenue and Highway 401 provided by the existing and proposed interchange (the "Interchange"); and the existing Highbury Avenue between the King's Highway 401 and Commissioner's Road;

B. London and MTO are desirous to rehabilitate the underpass structure and Highbury Avenue, and to reconstruct two Interchange ramps; and

C. It is deemed expedient to enter into this Agreement to deal with the highway improvements to the Interchange and Highbury Avenue specified in paragraph 4.1.

NOW THEREFORE in consideration for the terms of this Agreement and the sum of Ten Dollars ($10.00) of lawful money of paid by each of the parties of this Agreement to the other, the receipt whereof is hereby acknowledged, and other good and valuable consideration, London and the MTO agree as follows:

I. Definitions

In this Agreement:

1.I "cost" shall mean all the items of cost all howsoever styled inclusive of interest, inclusive of a cost sum or sums, and inclusive, but not limited to, consultant, construction, contractor, environmental remediation, real property and solicitor and his client costs, and includes the concept of expense and ail the items of expense all howsoever styled, inclusive of an expense sum or sums, unless specified otherwise. For purposes of certainty the cost of real property shall include the costs of any survey or plans required and any costs related to expropriation under the Expropriations Act, including all entitlements to compensation and costs under the said Act and all costs related to any Ontario Municipal Board or court proceeding, including any counsel fees for counsel representing the MTO.

1.2 "costs" shall mean the same as "cost", but in plural.

1.3 "cost of construction" shall mean those costs payable for the construction of the Work (as defined in paragraph 4.1), being all related hard costs, including without limitation costs for environmental remediation, surveys, utility relocations, geotechnical investigation, foundation investigation, placement of fill, granular lifts, concrete, asphalt, signals, illumination, bridge deck, sidewalk, pavement marking, signing, and contract administration.

1.4 "Design"shall mean both the preliminary and detail engineering design of the Work and also means that design is pursuant to the criteria and standards of the MTO and is approved by the MTO.

2. Illustration of Work

2.1 Reference is made to the attached Schedule "A which illustrates the Work described in paragraph 4.

3. Responsibilities

3.1 London will, at the cost and expense of the parties as set out in paragraph 6: A. undertake and complete the Design using a qualified engineering consultant retained by London and registered on MTOs Registry Appraisal and Qualification System;

B. submit the final drawings and specifications to MTO for its review and approval prior to MTO's tendering date; and

C. obtain the necessary environmental approvals as proponent under the Environmental Assessment Act, undertake utility relocations as necessary, and complete the Design.

3.2 London represents and warrants that the Design is free from faults and defects, and any negligence associated with the Design and that the MTO is entitled to rely on the Design for the purposes of administering and constructing the Work.

3.3 London shall save harmless and indemnify the MTO from all claims, demands, proceedings, obligations, costs, costs that are inclusive of solicitor and client costs, and interest, all howsoever styled, that the MTO may suffer or incur in any way arising from or attributable to the Design.

3.4 MTO will, at the cost and expense of the parties as set out in paragraph 6, effect and administer the Work including all required tendering and contract administration in accordance with Ministry of Transportation and London standard specifications, design and construction criteria as further described in paragraph 6.1. 8 3.5 MTO shall save harmless and indemnify London fro$ all claims, demands, proceedings, obligations, costs, costs that are inclusive of solicitor and client costs, and interest,,I all howsoever styled, that London may suffer or incur in any way arising from or attributable to the tendering and contract administradon of fhe Work. I I 4. Contract Work ~

4.1 The work (the "Work) to be effected and administerqdi by MTO, pursuant to a tendered contract, and including paragraph 3 matters, is further described as follows:

A. rehabilitation of the Highbury Avenue underpa s structure at Highway 401; 1 6. reconstruction and widening of the E-NIS and iW-NIS ramps at Highway 401 and Highbury Avenue, including permanept signals and illumination; ! C. reconstruction of Highbury Avenue with concrete pavement between the E-NIS and W-NIS ramp terminals; I 1 D temporary signalization at the E-NIS and W-N S ramp terminals at Highbury Avenue; I E. concrete pavement repairs to Highbury Avenue from the E-N/S ramp terminal northerly to Commissioner's Road; add

F. pavement repairs to all ramps at both the Bra ley Avenue and Commissioners Road interchanges.

4.2 The MTO and London agree to allocate or share the Iesponsibility for the following undertakings as noted to ensure the succeqsful completion of the Work; ! A. London through its engineering consultant sh provide the Design for the Work; B. MTO shall provide overall design and liaison for the Work; C. MTO through its contract administrator shall be responsible for all materials testing and quality assurance, excepting that London will provide quality control inspection on Work items notedlin subparagraphs 4.1 E and 4.1 F; and D. MTO and London will jointly undertake a Information Centre for this project. I 5. Commencement of Work

5.1 Subject to the availability of funding from the Ontario ilegislature, MTO shall arrange for the commencement of the Work in an manner following the completion of the matters identified in

5.2 MTO shall use all reasonable efforts to bring the Woi[ to completion in an expeditious manner within one (1) year from the com encement of the Work. 6. Specifications, Financial Contributions and Condr itions for Payment 6.1 For the purposes of the application of design standards and specifications, for the purposes of providing construction administration, and for the purposes of the financial obligations pertaining to the Work outlined in paragraph 4.1, the Work shall be considered to be divided between MTO and London based on the actual cost of the matters as follows: A. MTO, items A and B of paragraph 4.1,

' 6. London, item F of paragraph 4.1, and ~ C. MTO and London, item D of paragraph 4.1, being shared on a 50/50 D.' MTO and London, items C and E of paragraph 4.1, being shared on a 35/65 basis

In apdition London shall pay a fixed sum of one hundred thousand ($100,000) dollars towards the cost, including the cost of construction of the Work, of item B of paragraph 4.1. I

6.2 MTO shall pay a fixed sum of four hundred fifty-seven thousand seven hundred seventy ($457,770) dollars toward the cost of the completed De4ign.

6.3 Longon shall pay to MTO any costs of the Work associated with additional design changes requested by London following the tendering of the contract for construction of the Work.

6.4 Theifinancia1 obligation of London under this Agreement shall not be eligible for any form of subsidy from MTO, excepting qny potential funding whi 4 h may arise from the Federal Government of Canada. 7.

...... wnership of the signalization and e.ram.p terminals shall be deemed hall .be responsible for the operat:on ti.on.'and;related illumination.

7.2 Notyithstanding paragraph 7.1, the MTO agrees to allow the traffic signal system to be interconnected with that of London and that the operation of the interchange ramp terminal signals shall be determined through mutual cooperation to best serve each party's interests without compromising the other's interests.

~~i~~~~~~e-~n~~Repairof Highbury Avenue within the

cknowledges that MTO intends to he Public Transportation and f Highbury Avenue that is h:of the S-E Ramp bullnose Ramp bullnose of the ury $venue between Station 19+300 arly show_n on Schedule"B. 7. Warranty

.. 7.1 all necessary steps, done all acts, passed a.1 1s:irequired to:give it the authority to enter 'nto

8. Addresses

8.1 The address of MTO under this Agreement, unless otherwise advised, is:

Regional Director, Southwestern Region Ministry of Transportation 659 Exeter Road London, Ontario, N6E 1L3 Telephone: (519) 873-4333, fax: (519) 873-4236

8.2 The address of London under this Agreement, unless otherwise advised, is:

General Manager of Environmental & Engineering Services and City Engineer The Corporation of the City of London 300 Dufferin Avenue London, Ontario N6A 4L9

8.3 Notices under this Agreement shall be in writing and sent by personal delivery, facsimile transmission ("Fax") or by registered mail. Notices by registered mail shall be deemed to have been received on the fourth business date after the date of mailing. Notices by personal delivery or by Fax shall be deemed to have been received at the time of the delivery or transmission unless delivered or transmitted on a weekend or holiday, in which case such notice shall be deemed to have been received on the next business day. In the event of an interruption in postal service, notice shall be given by personal delivery or Fax.

9. Dispute Resolution

9.1. In the event of any dispute between London and the MTO as to any matter under this Agreement, the dispute shall be dealt with in the following manner and sequence:

A. The parties will meet to discuss the dispute in good faith and use all reasonable efforts to resolve the matter by negotiation;

8. If the dispute cannot be resolved by negotiation within a reasonable period of time, then the parties shall submit the matter to non-binding arbitration and the provisions of the Arbitrations Act, 1991,S.0. 1991, c.17 as amended, shall apply; and

C. If the dispute is not resolved through non-binding arbitration, then the parties may pursue their strict legal rights available at law.

1O.Entire Agreement

10.1. This Agreement, including any schedules attached hereto, constitutes the entire understanding and agreement between the parties with respect to the subject matter hereof and there are no representations, understandings or agreements, oral or written, with respect to the subject matter hereof which are not included herein.

IN WITNESS OF ALL contained in this Agreement:

Dated this day of ,200

THE CORPORATION OF THE CITY OF LONDON

C.S.

Dated this day of ,200

HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO, REPRESENTED BY THE MINISTER OF TRANSPORTATION FOR THE PROVINCE OF ONTARIO

Minister of Transportation SCHEDULE "A" TO AGREEMENT BETWEEN THE CORPORATION OF THE CITY OF LONDON AND THE MTO

RE: HIGHWAY 401 I HIGHBURY AVENUE INTERCHANGE