Rbrc 64 Avenue Rail Overpass Reg 1a
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REPORT TO MAYOR AND COUNCIL
PRESENTED: FROM: SUBJECT:
MARCH 2, 2009 - REGULAR MEETING REPORT: ENGINEERING DIVISION FILE: RBRC – 64 AVENUE RAIL OVERPASS AT HIGHWAY 10 PROJECT
09-26 5330-23-03
RECOMMENDATIONS:
That Council receive the RBRC – 64 Avenue Rail Overpass at Highway 10 Project (“the Project”) report; and That Council endorse the preliminary design; and further That Council authorize staff to enter into agreements with the Government of Canada, Contribution Agreement (“GOC Agreement”) and the Project Agreement, Roberts Bank Rail Corridor Program (“RBRC Agreement”) on behalf of the Township of Langley, subject to such modifications as may be deemed necessary by legal counsel. EXECUTIVE SUMMARY:
Public Consultation Process The Project has recently completed a public consultation process which involved three separate components: 1. Public Open Houses were held on January 31 and February 2 with 389 people attending. Based on the questionnaire the general comments are as follows: • The attendees were generally supportive of a road/rail overpass in the approximate location of the intersection at Highway 10 / 64 Avenue / Mufford; • The attendees were generally supportive of “Option J” however this option has technical and financial challenges and was found by the other Project partners to be inconsistent with the original project principles; and, • Of all the remaining options the Open House attendees found the preliminary design to be the next most acceptable alignment option. 2. Special Meeting of Township Council for the purpose of Public Input as to Mufford/64th Avenue Road / Rail Overpass. A total of 41 people spoke at the Public Input Meeting. From that 38 were opposed and 3 were in favour of the preliminary design. The meeting minutes are attached to this report. 3. Community Survey An independent research company, named Synovate, which were previously retained by the Township for Community Surveys, conducted a telephone survey from February 4 to 7, 2009 of residents living within the Township of Langley. From the 401 respondents the Community Survey (which, from the sample size of 401 has a minimum margin of error of +/- 5%, 19 times out of 20) provided the following results:
RBRC – 64 AVENUE RAIL OVERPASS AT HIGHWAY 10 PROJECT
Page 2 . . . • • •
Two-thirds of residents are aware of the proposal to build an overpass project in the Township of Langley; Support for the overpass project outweighs the opposition by 49% to 11% with 38% having no opinion either way; and, After reflecting on some of the positives and negatives of the overpass project support rose to 69% leaving 15% still opposed and 16% undecided.
As a result of the feedback heard from the community members at the Open Houses the preliminary design is being enhanced to account for several of the salient issues that were brought forward, including: 1. Accommodate the capacity issues at the intersection at Highway 10/216/Crush Crescent and as traffic volumes demand at the intersections of 64th and 224th, 232nd and 232nd Street and Springbrook Road; 2. Accommodate the safety issues (such as pedestrian safety) between 64 and intersection at Highway 10/216/Crush Crescent; 3. Accommodate the safety issues along 64 Avenue east of 216 (e.g., construct wider shoulders, installing traffic calming measures, enforcement); 4. Ensure farms have full access to the road network; 5. Ensure the viability of agriculture and farming operations; and, 6. Accommodate the heritage aspects and the archaeological significance of the Milner area. Funding Agreements The $51M Project is funded through two agreements, one with the Government of Canada, valued at $3.1M and the second with the Roberts Bank Railway Corridor Program, valued at $38.6M. Both agreements have been thoroughly reviewed by staff and the Township’s lawyers. PURPOSE:
To provide Council with a briefing on the outcome of the recent public questionnaires and community survey and to seek authority to enter into the Project funding agreements. BACKGROUND/HISTORY:
Public Open Houses: Two Open Houses were held by the Township in order to present the latest project preliminary design and have available project staff to answer questions, issues and concerns. The Open Houses were held on Saturday, January 31, 2009, 10am to 2pm at the Milner Community Hall and, Monday, February 2, 2009, 5:30pm to 8:30pm at the Township of Langley Civic Facility. In attendance with Township staff at the Open Houses were representatives from Ministry of Transportation and Infrastructure, TransLink, Roberts Bank Railway Corridor Program, Port Metro Vancouver, Environmental, Agricultural and Planning consultants In total 389 members of the public attended the Open Houses. A questionnaire was provided to each of the attendees and the results have been tabulated and summarized in the following tables:
RBRC – 64 AVENUE RAIL OVERPASS AT HIGHWAY 10 PROJECT
Page 3 . . . After reviewing the presentation materials, do you think an overpass is required? Possible responses No. of Respondents Results
Yes
No
No Answer
Total
144 72%
44 22%
15 6%
199 100%
If you said yes to question 2, which option best meets the needs of the Township of Langley? Design Options
Preliminary Design
North Route
South Route
“Option J”
Limit Hwy10/ Mufford to right in/out
Other
No Answer
Total
No. of Responses
39
9
9
78
11
22
27
195
Results
20%
5%
5%
40%
5%
11%
14%
100%
Public Input Meeting: A Public Meeting was held on Monday, February 9, 2009 from 7pm to 11:05 PM in a format similar to a Public Hearing. Staff provided a brief presentation that generally responded to questions that were raised at the Open Houses. Subsequently, 41 delegates approached Council and spoke to the Project. Stated preference No. of Speakers
In favour
Opposed
No Answer
Total
3
38
0
41
Summary of findings from Public Consultation Based on the public consultation process the general results are as follows: • • • • • •
Two-thirds of residents are aware of the proposal to build an overpass project in the Township of Langley; The public is generally supportive of a road/rail overpass in the approximate location of the intersection at Highway 10/64 Avenue/Mufford; Support for the overpass project outweighs the opposition by 49% to 11% with 38% having no opinion either way; After reflecting on some of the positives and negatives of the overpass project support rose to 69% leaving 15% still opposed and 16% undecided; The attendees were generally supportive of “Option J” however this option has technical and financial challenges and was found by the other Project partners to be inconsistent with the original project principles; and, Of all the remaining options the Open House attendees found the preliminary design to be the next most acceptable alignment option.
Based on the comments received from the Open Houses the Project learned from the residents of their issues and concerns. As such, the Project is working to enhance the preliminary design to reflect the key issues, such as:
RBRC – 64 AVENUE RAIL OVERPASS AT HIGHWAY 10 PROJECT
Page 4 . . . 1. Accommodate the capacity issues at the intersection at Highway 10/216/Crush Crescent and as traffic volumes demand at the intersections of 64th and 224th, 232nd and 232nd Street and Springbrook Road; 2. Accommodate the safety issues (such as pedestrian safety) between 64 and intersection at Highway 10/216/Crush Crescent; 3. Accommodate the safety issues along 64 Avenue east of 216 (e.g., construct wider shoulders, installing traffic calming measures, enforcement); 4. Ensure farms have full access to the road network; 5. Ensure the viability of agriculture and farming operations; and, 6. Accommodate the heritage aspects and the archaeological significance of the Milner area. As mentioned previously a large number of attendees were supportive of the “Option J”, however this Option is not recommended for the following reasons: • Fails to meet the transportation objectives (not an integrated solution, lacks network connectivity and redundancy, lacks added capacity); • Unacceptable to the Funding Partners; • Impact to the environmentally sensitive area; and, • Unacceptable to the City of Langley, as stated in Mayor Fassbender’s letter, dated February 3, 2009. Funding Agreements: The $51 million Project is funded through two Agreements, one with the Government of Canada, through Transport Canada, for $3.1 million, and the other through a partnership agreement with the Project funding partners, for the additional $38.6 million. The Township’s share is $9.3 million. The Agreements are the result of a thorough analysis by the Township and its Funding Partners of the technical and financial aspects of several alignment options which resulted in consensus on a preferred alignment option which is represented by the preliminary design. The table below indicates the contribution by individual agency. Agency TransLink BC MoT Township of Langley Transport Canada Port Metro Vancouver Total (2008 dollars)
Funding Contribution $24,300,000 $12,500,000 $ 9,300,000 $ 3,100,000 $ 1,800,000 $51,000,000
Government of Canada, Contribution Agreement (“GOC Agreement”) The GOC Agreement is a general purpose, standard template agreement that is used for infrastructure projects across Canada where GOC contributes funds to another level of government agency. The contribution is at $3.1 million with no flexibility for change and no exception. The Township, under the GOC Agreement, is obligated to deliver the Project to completion based on the subject terms and conditions. Contributions are available based on actual costs and on a quarterly basis up to the $3.1 million limit.
RBRC – 64 AVENUE RAIL OVERPASS AT HIGHWAY 10 PROJECT
Page 5 . . . Eligible costs include all aspects of Project delivery including project management, professional services, engineering, design, materials, construction and approvals. The most significant exception is the cost of property acquisition that is covered under the partnership agreement. The Township’s ability to invoice under the GOC Agreement is conditional on the Project receiving the Canadian Environmental Assessment Authority approval, which we have been advised is imminent. Project Agreement, Roberts Bank Rail Corridor Program (“RBRC Agreement”) The RBRC Agreement is a partnership agreement between the following agencies: Ministry of Transportation and Infrastructure; TransLink; Port Metro Vancouver; and, Township of Langley In the RBRC Agreement the Township, as the Project delivery agent, is responsible to the project partners to delivery the Project in manner that complies with the stated terms, conditions and requirements. In kind, the partners are responsible to proportionately share on the risks and liabilities associated with cost, schedule, scope changes, regulatory approvals and any other unforeseen items associated with the Project. This is a significant shift from the GOC Contribution Agreement where cost risk is capped. The Township will invoice TransLink on a quarterly basis and subsequently TransLink receives payment from the other agencies through a separate program agreement. Key sections of the RBRC Agreement include the following: • • • • • • •
The Project is to be delivered as a design-build project; The procurement process is substantially the same as the Township’s usual procurement process (Request for Qualification, Request for Proposal, etc.); Project costs are reimbursed based on actual costs with supporting documentation Eligible costs include all aspects of Project delivery, including project development, project management, professional services, engineering, design, construction, materials, property; Cost for changes to the Project scope fall to the party responsible for the change request, unless otherwise agreed to; Project cost overruns are equally shared between the Province and the Township; All Project communications, including public events, must be vetted and approved by the RBRC Program;
DISCUSSION/ANALYSIS:
The Township has undertaken the following measures to ensure both Agreements are acceptable to the Township: 1. Project staff have fully vetted the Agreements to ensure that the obligations under these Agreements are acceptable and achievable; 2. Further, Project staff have ensured technical accuracy and the Agreements conform with best business practices; 3. Township solicitor (Bull Houser Tupper) have reviewed and edited the Agreements, where appropriate; and 4. Agreements have been reviewed to ensure that they are consistent and compliant with the Community Charter.
RBRC – 64 AVENUE RAIL OVERPASS AT HIGHWAY 10 PROJECT
Page 6 . . .
Respectfully submitted,
Colin Wright GENERAL MANAGER for ENGINEERING DIVISION ATTACHMENT A ATTACHMENT B ATTACHMENT C ATTACHMENT D ATTACHMENT E
64 AVENUE ROAD/RAIL OVERPASS SURVEY – FEB. 16, 2009 GOVERNMENT OF CANADA, CONTRIBUTION AGREEMENT (“GOC AGREEMENT”) PROJECT AGREEMENT, ROBERTS BANK RAIL CORRIDOR PROGRAM (“RBRC AGREEMENT”) OPEN HOUSE QUESTIONNAIRE SUMMARY MEETING MINUTES OF THE PUBLIC INPUT MEETING, DATED FEBRURARY 9, 2009
ATTACHMENT A
64th Avenue Road/Rail Overpass Survey • Prepared for: Township of Langley • Prepared by: Julie Winram • Date: February 16, 2009
© Synovate 2009
1
Executive Summary
Executive Summary Overall Awareness and Opinion • • •
Two-thirds of residents are aware of the proposal to build an overpass in the Township of Langley. Support for the proposed overpass outweighs opposition by a margin of 49% to 11%, with the remaining 38% not having an opinion either way. After hearing reasons for and against the overpass, support solidifies to 69%, leaving 15% still opposed and 16% undecided.
Reasons For and Against the Overpass • • •
Alleviating congestion is the overwhelming reason why residents support building the overpass. The main grounds for opposing the overpass are that it is too large and would use too much farmland. Many of those initially undecided or against the planned overpass do acknowledge that it will reduce congestion and improve safety. Accordingly, when asked again for their opinion, 54% of those undecided became supportive as did 9% of those who were opposed.
Importance Of The Decision • •
Overall, one third of residents consider the overpass decision to be extremely or very important to them. Of those who consider the decision to be Important, more than 4 times as many support than reject it, both at the outset as well as after considering the reasons for and against it.
© Synovate 2009
3
Objectives & Methodology
Objectives and Methodology •
•
Synovate, an independent professional market research company, was commissioned by the Township of Langley on behalf of the project to conduct a poll on a proposed overpass. Questions were developed independently by Synovate staff and project partner input was sought for technical accuracy.
•
Township heads of households were asked about a proposal to build a new overpass at 64th Avenue/Mufford and Highway 10 to allow car traffic to be routed over the railway traffic.
•
The poll covered the following: - Overall awareness of the overpass - Initial opinion of the overpass - Positive and negative arguments about the overpass - Informed opinion of the overpass
© Synovate 2009
•
A total of 401 telephone interviews were conducted from February 4th to 7th, 2009.
•
Quotas were set by gender and age. Further, the sample was weighted by age to match the actual age distribution of household maintainers in the Township of Langley.
•
The maximum margin of error on the sample of 401 is +/-5%, 19 times out of 20. The margins on smaller subsamples are wider.
5
Findings
Overall Awareness Q1b. If yes, where did you hear about the plan to build the overpass?
Q1. Are you aware of the proposal to build a new road and overpass at 64th Avenue/Mufford and Highway 10 to allow car traffic to be routed over the railway traffic? Community Newspaper
79
Word of Mouth/Family No 36%
17
Daily Newspaper
7
TV
Yes 64%
4
Radio
2
Open House
1
Internet
1
Other
1
Don't Know/Refused
3 %
(n=401)
•
•
Overall, 64% of residents are aware of the proposal to build and new road and overpass at 64th Avenue/Mufford and Highway 10. Awareness rises with age and reaches 2/3 of those 35+ compared to 1/2 of those 18-34.
© Synovate 2009
(n=260)
•
Almost all of those aware of the proposed overpass heard about it from community newspapers. Less common sources include word of mouth, daily newspapers and TV.
7
Initial Overall Opinion Q2. Overall, do you support or oppose the plan to build the overpass or do you not have an opinion either way? Do you strongly or somewhat [support/oppose] it? Perceived Importance of Overpass Decision Strongly Support 29%
No Opinion 38%
Somewhat Support 20% Depends 2%
Strongly Oppose Somewhat 7% Oppose 4%
Extremely/Very Important
Somewhat Important
Not that/Not at all Important
Base
133 %
176 %
90 %
Strongly Support
56
20
9
Somewhat Support
11
30
14
Somewhat Oppose
2
5
4
Strongly Oppose
12
2
8
No Opinion
17
40
62
Depends
3
2
3
Don’t Know
-
2
-
(n=401)
•
By more than four to one margin, residents support the proposed overpass.
•
49% say they strongly or somewhat support the planned overpass, while 11% express opposition, including 7% who are strongly opposed. A large minority, 38%, have no opinion either way.
© Synovate 2009
•
Of those who consider the overpass decision extremely or very important, support outweighs opposition 67% to 14%. Furthermore, strong support stands at 56% among this group.
8
Reasons For Initial Overall Opinion Q3. Why do you [support/oppose] it? What does it depend on? Reasons For Opposing
Reasons For Supporting
It is a congested area (gen) The trains cause congestion/waits
30
24
Should be built elsewhere Already enough overpasses
18
Costs too much money
17
10
Improve safety Provide emergency access Improve access to Glover Rd Population is growing
32
Will take up farmland
47
9
13
Will be an eyesore 9 7
Will not reduce congestion
7
Design should be changed
6
% (Major Mentions) (n=197)
•
The overwhelming reason for supporting the proposed overpass is that it will alleviate congestion (47% citing congestion generally and 30% specifically citing trains as the cause of this waits).
•
Another one in ten each mention that the overpass would improve safety, improve emergency access and improve access to Glover Road generally.
% (Major Mentions) (n=43*)
•
Residents against the overpass object on the grounds that it will take up farmland, should be built elsewhere, that there are enough overpasses already and that it is too expensive.
*Caution small base size © Synovate 2009
9
Reasons For the Proposed Overpass Q4. Please tell me whether you agree or disagree with the following reasons for or against the overpass. Positive Reasons The over pass will improve safety by separating rail traffic from car traffic and enhance emergency service response times The overpass will improve traffic flow and reduce the congestion and idling caused by cars waiting for railcars to pass by The overpass will assist to alleviate the congestion from the growth of rail and road traffic in the future
90
7
4
88
8
4
82
10
8
% (n=401)
Agree
•
More than eight in ten residents agree with each of the three reasons, namely, that it will alleviate congestion, improve traffic flow in the future, and improve safety.
© Synovate 2009
•
Disagree
Don't Know
The reasons in favour of the overpass also attract majority agreement from those who do not approve of it, at least when they were first asked for their opinion.
10
Reasons Against the Proposed Overpass Q4. Please tell me whether you agree or disagree with the following reasons for or against the overpass. Negative Reasons
The overpass will cause more traffic to use the local rural roads
32
The overpass is too large and uses too much farmland
31
The overpass will result in more rail traffic and noise pollution and change the character of Langley
53
15
48
29
21
58
13
% (n=401)
Agree
•
Three in ten residents agree that the overpass will cause more traffic to rural roads, use too much farmland, and create more rail traffic.
•
Residents that oppose the overpass are the most inclined to believe that the overpass is too large and uses too much farmland.
© Synovate 2009
Disagree
Don't Know
•
Those who live in the vicinity of the overpass (V2Y) express the most concern over the overpass causing more traffic to use the local rural roads. Still, they concur more with all of the reasons in favour of the overpass than with any of the objections.
•
Residents that initially were not sure how they felt about the overpass expressed the greatest concern with respect to the overpass using up too much farmland. 11
Informed Overall Opinion Q5. Now that you’ve heard some of the reasons for and against the overpass, would you prefer to see the project go ahead or be cancelled? Don't Know 16%
Initial Opinion Support
Oppose
No Opinion
197
43*
158
%
%
%
Go Ahead
94
9
54
Cancelled
2
76
14
Don’t Know
3
15
32
Base Cancelled 15%
Go Ahead 69%
(n=401)
•
After hearing reasons for and against the overpass, the margin of support to opposition stood at 69% to 15%.
•
16% remained undecided.
•
The majority of all demographic groups and all regions of the Township support the proposed overpass, including those who live in the area (69% of those living in V2Y are supportive).
•
54% of those residents initially undecided on the proposed overpass became supportive, while 14% became opposed and 32% remained unsure.
•
Almost all of those initially supportive of the overpass remained so (94%), and 76% of those initially opposed remained opposed.
*Caution small base size © Synovate 2009
12
Overall Importance of the Overpass Decision Q6. Overall, how important is the decision on the overpass to you?
Extremely Important
10%
6%
12%
8%
•
Overall, 1/3 of residents believe the decision on the overpass is extremely or very important.
•
Among those in the vicinity of the overpass (V2Y), 37% consider the decision to be extremely or very important.
•
Older residents view the overpass decision as more important than do younger residents.
19%
Very Important
23%
20%
29%
Somewhat Important
Not that Important
Not at all Important
Don't Know
44%
56%
47%
38%
15%
*Caution small base size © Synovate 2009
16%
11%
6%
8%
18% 3%
9% 1%
Total
18-34
35-54
55+
(n=401)
(n=36)*
(n=202)
(n=162)
Age 13
Demographic Profile Total Base
401 %
Gender Male
47
Female
53
Age 18-34
13
35-54
48
55+
38
Region V1M
32
V2Y
15
V2Z
18
V3A
14
V4W
21
© Synovate 2009
14
Demographic Profile Total Base
401 %
Main Transportation Car/Motor Vehicle
98
Transit
1
Walking
1
Home Ownership Own
90
Rent
8
Other
1
Don’t Know/Refused
1
© Synovate 2009
15
Our curiosity is yours. Thank you.
© Synovate 2009
16
ATTACHMENT B Agreement for the 64th Avenue Extension from 204 St. to 216 St, Township of Langley 2008/2009-2011/2012
ASIA PACIFIC GATEWAY CORRIDOR INITIATIVE TRANSPORTATION INFRASTRUCTURE FUND CONTRIBUTION AGREEMENT FOR 64TH AVENUE EXTENSION FROM 204 ST. TO 216 ST, 2008/2009-2011/2012
RDIMS No. 2370671 version 5 CANADA – TOWNSHIP OF LANGLEY APGCITIF Page 1 of 44
Agreement for 64th Avenue Extension from 204 St. to 216 St, Township of Langley 2008/2009-2011/2012
TABLE OF CONTENTS 1.
Interpretation ........................................................................................................................ 6 1.1 Definitions ....................................................................................................................... 6 1.2 Entire Agreement ............................................................................................................ 8 1.3 Schedules ....................................................................................................................... 8 1.4 Counterpart Signature..................................................................................................... 8 1.5 Accounting Principles and Auditing Standards ............................................................... 8 1.6 Severability...................................................................................................................... 9 1.7 Amendments ................................................................................................................... 9 1.8 Survival ........................................................................................................................... 9 1.9 Computation of Time....................................................................................................... 9 2. Term of Agreement .............................................................................................................. 9 3. Purpose ................................................................................................................................. 9 3.1 Purpose of this Agreement.............................................................................................. 9 3.2 Project Overview ............................................................................................................. 9 4. Project Financing ............................................................................................................... 10 4.1 Contribution by Canada ................................................................................................ 10 4.2 Commitments by the Recipient ..................................................................................... 10 5. Recipient Obligations ........................................................................................................ 11 6. Compliance with Environmental Legislation................................................................... 12 6.1 Conditional Commitment............................................................................................... 12 7. Aboriginal Consultation..................................................................................................... 13 7.1 Conditional Commitment............................................................................................... 13 7.2 Aboriginal consultation information ............................................................................... 13 8. Management Committee.................................................................................................... 14 8.1 Establishment ............................................................................................................... 14 8.2 Co-chairs....................................................................................................................... 14 8.3 Meetings ....................................................................................................................... 14 8.4 Rules and Procedures .................................................................................................. 14 8.5 Recommendations and Decisions................................................................................. 14 8.6 Mandate ........................................................................................................................ 14 8.7 Changes During the Term of the Agreement ................................................................ 15 8.8 RBRC Partners Committee ........................................................................................... 16 9. Contract Procedures.......................................................................................................... 16 9.1 Awarding of Contracts................................................................................................... 16 9.2 Contract Provisions ....................................................................................................... 16 10. Claims and Payments ........................................................................................................ 17 10.1 Payment Conditions .................................................................................................. 17 10.2 Method of Payment ................................................................................................... 17 10.3 Claim Procedures ...................................................................................................... 17 10.4 HCoMS ...................................................................................................................... 18 10.5 Retention of Contribution........................................................................................... 18 10.6 Final Payment............................................................................................................ 18 10.7 Time Limits for Claims ............................................................................................... 19 11. Audit, Evaluation and Reporting....................................................................................... 19 11.1 Reporting – Audit Evaluation Guidelines ................................................................... 19 11.2 Record Keeping......................................................................................................... 19 RDIMS No. 2370671 version 5 CANADA – TOWNSHIP OF LANGLEY APGCITIF Page 2 of 44
Agreement for 64th Avenue Extension from 204 St. to 216 St, Township of Langley 2008/2009-2011/2012
11.3 Public Accounts ......................................................................................................... 19 11.4 Annual Financial Compliance Audit........................................................................... 19 11.5 Audit Plan .................................................................................................................. 19 11.6 Annual Report ........................................................................................................... 19 11.7 General Compliance Audit......................................................................................... 19 11.8 Other Audit ................................................................................................................ 20 11.9 Evaluation by the Parties........................................................................................... 20 11.10 Evaluation by Canada ............................................................................................... 20 12. Access................................................................................................................................. 20 13. Communications ................................................................................................................ 20 14. Indemnification................................................................................................................... 20 15. Dispute Resolution............................................................................................................. 21 15.1 Dispute Resolution .................................................................................................... 21 15.2 Referral...................................................................................................................... 21 16. Suspension and Default .................................................................................................... 21 16.1 Suspension................................................................................................................ 21 16.2 Notice of Suspension ................................................................................................ 22 16.3 Default ....................................................................................................................... 22 16.4 Remedies on Default ................................................................................................. 22 17. Disposal and Abandonment of Assets............................................................................. 23 17.1 Disposal of Fixed and Non-Fixed Assets................................................................... 23 17.2 Abandonment of Fixed and Non-Fixed Assets .......................................................... 25 17.3 Notice ........................................................................................................................ 25 18. Revenues from Assets....................................................................................................... 26 18.1 Public Benefit ............................................................................................................ 26 18.2 Tolling........................................................................................................................ 26 19. General ................................................................................................................................ 27 19.1 Governing Law .......................................................................................................... 27 19.2 Federal Crown Prerogative........................................................................................ 27 19.3 Compliance with Laws............................................................................................... 27 19.4 Financial Administration Act ...................................................................................... 27 19.5 Binding Obligations ................................................................................................... 27 19.6 Debts Due to her Majesty in Right of Canada ........................................................... 27 19.7 Interest on Debts Due to her Majesty in Right of Canada ......................................... 27 19.8 Set-Off by Canada..................................................................................................... 27 19.9 No Benefit.................................................................................................................. 27 19.10 No Partnership, No Joint Venture, No Agency, etc. .................................................. 28 19.11 No Authority to Represent ......................................................................................... 28 19.12 No Actions or Proceedings ........................................................................................ 28 19.13 Assignment................................................................................................................ 28 19.14 Waiver ....................................................................................................................... 28 19.15 Conflict of Interest ..................................................................................................... 28 19.16 Intellectual Property................................................................................................... 29 19.17 Consequential Measures........................................................................................... 29 19.18 Lobbyists and Agent Fees ......................................................................................... 29 19.19 Successor.................................................................................................................. 29 19.20 Official Languages Act .............................................................................................. 29 20. Notices, Document and Information................................................................................. 29 RDIMS No. 2370671 version 5 CANADA – TOWNSHIP OF LANGLEY APGCITIF Page 3 of 44
Agreement for 64th Avenue Extension from 204 St. to 216 St, Township of Langley 2008/2009-2011/2012
20.1 Notice Deemed Given ............................................................................................... 30 20.2 Documents and Information ...................................................................................... 30 20.3 Addresses for Canada and the Recipient.................................................................. 30 Signatures .................................................................................................................................. 32 Schedule A – Eligible and Ineligible Costs ............................................................................. 33 Schedule B – Detailed Project Description and Cash Flow................................................... 35 Schedule C – Communications Protocol ................................................................................ 36 Schedule D – Audit Framework................................................................................................ 39 Schedule E – Information ......................................................................................................... 42 Schedule F – Solemn Declaration of Substantial Completion .............................................. 44
RDIMS No. 2370671 version 5 CANADA – TOWNSHIP OF LANGLEY APGCITIF Page 4 of 44
Agreement for 64th Avenue Extension from 204 St. to 216 St, Township of Langley 2008/2009-2011/2012
ASIA PACIFIC GATEWAY CORRIDOR INITIATIVE TRANSPORTATION INFRASTRUCTURE FUND CONTRIBUTION AGREEMENT FOR 64TH AVENUE EXTENSION FROM 204 ST. TO 216 ST 2008/2009-2011/2012 This Contribution Agreement made in duplicate entered into on the __[INSERT st/rd/th]__ day of ___________, 20__.
BETWEEN:
HER MAJESTY IN RIGHT OF CANADA, represented by the Minister of Transport, Infrastructure and Communities (hereinafter “Canada”).
AND:
THE TOWNSHIP OF LANGLEY a corporation legally incorporated under the [NAME OF ACT] by [INSERT APPROPRIATE INSTRUMENT] dated [DATE], having its head office at 20338 65 Avenue, Langley in the province of BC, represented by [NAME, TITLE] duly authorized under [BY-LAW NO. and/or RESOLUTION OF ITS BOARD OF DIRECTORS DATED X], (hereinafter “Recipient”).
PREAMBLE WHEREAS the Parties recognize that investments in public infrastructure are fundamental to the quality of life of Canadians and necessary to ensure continued economic growth; WHEREAS the Minister of Transport, Infrastructure and Communities is responsible for the Program entitled the Asia Pacific Gateway Corridor Initiative Transportation Infrastructure Fund (hereinafter “APGCITIF and/or “Program”); WHEREAS the Township of Langley is authorized to execute this Agreement;
WHEREAS the Roberts Bank Rail Corridor Road/Rail Interface Study findings were used to develop nine new crossing locations to be constructed along a 70km stretch of Railway in the Lower Mainland of British Columbia that connects to the Deltaport Container Terminal. WHEREAS Canada and the Township of Langley, along with the other stakeholder organizations, agree to complete the Roberts Bank Rail Corridor Program as described in the Agreement-InPrinciple, dated June 28 2007 AND WHEREAS the Township of Langley agrees to carry out the Project and Canada wishes to provide financial support for the Project and its objectives;
RDIMS No. 2370671 version 5 CANADA – TOWNSHIP OF LANGLEY APGCITIF Page 5 of 44
Agreement for 64th Avenue Extension from 204 St. to 216 St, Township of Langley 2008/2009-2011/2012
NOW THEREFORE, in accordance with the principles set out above, Canada and the Township of Langley hereby agree as follows: 1.
INTERPRETATION
1.1
DEFINITIONS In addition to the terms defined in the recitals and elsewhere in this Agreement, a capitalized term has the meaning given to it in this section. “Agreement” means this contribution agreement and all schedules, as may be amended from time to time. “Agreement End Date” means March 31, 2012. “Canada’s Contribution” means Canada’s contribution to Eligible Costs as described in subsection 4.1 (a) (Contribution) of this Agreement. “Canada’s Original Contribution” means Canada’s Contribution to Eligible Costs for a Project Component as described in Schedule B of this Agreement as the Effective Date. “Committee” means Management Committee established pursuant to section 8. “Contract” means an agreement between the Recipient and a Third Party whereby the latter agrees to supply a product or service to the Project in return for financial consideration. “Disposed Asset” means the Fixed and/or Non-Fixed Asset as further described in subsection 16.1 a) i) and/or ii). “Effective Date” means the date this Agreement is signed by the last Party. “Electronic Instruction for Payment” means an instruction for payment, issued electronically on media or by on-line transfer, to a financial institution to credit the account of the Recipient with a specific payment. “Eligible Costs” means costs of the Project eligible for reimbursement by Canada as defined in Schedule A of this Agreement. “Final Project Component Claim Date” means the earlier of twelve (12) months after the Project Component Completion Date or two (2) months before the Agreement End Date. “Fiscal Year” means the period beginning April 1 of a year and ending March 31 of the following year. “Fixed Asset” means any non-movable asset constructed, rehabilitated, or improved, in whole or in part, with funds contributed by Canada under the terms of this Agreement.
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“Fixed Asset Disposal Period” means a period of twenty-five (25) years commencing from the Project Component Completion Date. “HCoMS” means a secure, self-contained, collaborative website developed by Canada, for the financial management of each agreement. Functions include, but are not limited to, Schedule B adjustments, Project and contract monitoring and claims processing. “Joint Communications Material” means all public information material prepared jointly by Canada and the Recipient regarding the Project including, but not limited to, news releases, backgrounders, publications, invitations, signage and media advisories, and as further outlined in Schedule C of this Agreement. “Non-Fixed Asset” means any movable asset, including but not limited to vehicles, purchased, constructed, rehabilitated, or improved, in whole or in part, with funds contributed by Canada under the terms of this Agreement. “Non-Fixed Asset Disposal Period” means a period of ten (10) years commencing from the Project Component Completion Date. “Party” or ”Parties” means Canada and/or the Township of Langley “Program” means Asia Pacific Gateway Corridor Initiative Transportation Infrastructure Fund. “Program End Date” means March 31, 2014. “Progress Claim” means a summary of Eligible Costs submitted periodically by the Recipient using HCoMS to Canada for reimbursement in accordance with this Agreement. “Project” means the infrastructure project described in the Project Overview in subsection 3.2 and Schedule B of this Agreement; “Project Completion Date” means March 31,2012. “Project Component” means any of the components of the Project as described in Schedule B of this Agreement, as may be amended from time to time in accordance with this Agreement. “Project Component Completion Date” means the date shown on the Solemn Declaration of Substantial Completion in Schedule F for that Project Component but no later than the Project Completion Date. “Recipient” means the Township of Langley. “Solemn Declaration of Substantial Completion” means the declaration by a professional engineer in accordance with the standards defined in subsection 4.2(c)(Guidelines as further described in Schedule F.
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“Substantial Completion” means when the Project Component is available for service to the general public. “TDM Plan” means a plan that incorporates TDM Measures. “Third Party” means any person, other than a Party, who participates in the implementation of the Project. “Tolls” means the user fees, rates or other charges imposed by the Recipient, or by a Third Party operator pursuant to an agreement between the Recipient and a Third Party operator, for the use of, in whole or in part, an infrastructure constructed, rehabilitated or improved under this Agreement. For the purposes hereof, weight-distance taxes or other highway/road network-wide levies will not be deemed Tolls. 1.2
ENTIRE AGREEMENT This Agreement is made under the APGCITIF and comprises the entire agreement between the Parties. No prior document, negotiation, provision, undertaking, agreement, representation or warranty, expressed, implied, or otherwise, in relation to the subject of the Agreement, shall have legal effect, nor does the Summary Information Box on the front page of this Agreement.
1.3
SCHEDULES The following schedules are attached to, and form part of, this Agreement: Schedule A – Eligible and Ineligible Costs; Schedule B – Detailed Project Description & Cash Flow; Schedule C – Communications Protocol; Schedule D – Audit Framework; Schedule E – Information; Schedule F – Solemn Declaration of Substantial Completion.
1.4
COUNTERPART SIGNATURE This Agreement may be signed in counterpart, and the signed copies will, when attached, constitute an original agreement.
1.5
ACCOUNTING PRINCIPLES AND AUDITING STANDARDS Unless otherwise set out in this Agreement, either expressly or by necessary implication, all accounting and financial terms used in this Agreement will be interpreted and applied in accordance with accounting principles and auditing standards generally accepted in Canada and in the province of British Columbia, in particular those of the Canadian Institute of Chartered Accountants.
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1.6
SEVERABILITY If for any reason a provision of this Agreement that is not a fundamental term of this Agreement between the Parties is found to be or becomes invalid or unenforceable, in whole or in part, and if both Parties agree, it will be deemed to be severable and will be deleted from this Agreement, but all the other terms and conditions of this Agreement will continue to be valid and enforceable.
1.7
AMENDMENTS Subject to the amendments / changes that can be made by the committee under section 8, this Agreement may be amended at any time upon the written agreement of the Parties and any amendments shall be deemed to form part of this Agreement.
1.8
SURVIVAL Despite section 2 (Term of this Agreement), the Parties’ rights and obligations, which by their nature extend beyond the expiration or termination of this Agreement, shall survive any expiration or termination of this Agreement.
1.9
COMPUTATION OF TIME If a day on which any act or payment is required to be done or made under this Agreement is a day that is not a business day, then such act or payment shall be duly performed or made if done on the following business day. In this subsection business day means a day that is not a Saturday, Sunday or a holiday.
2.
TERM OF AGREEMENT This Agreement will be effective as of the Effective Date and shall terminate on the Agreement End Date, subject to early termination in accordance with this Agreement.
3.
PURPOSE
3.1
PURPOSE OF THIS AGREEMENT The purpose of this Agreement is to establish the terms and conditions by which Canada will reimburse the Recipient a part of the Eligible Costs paid by the Recipient for the Project, as described in section 4 (Project Financing) and Schedule B of this Agreement.
3.2
PROJECT OVERVIEW This agreement is for the federal contribution towards the 64th Avenue Extension in Langley Township, British Columbia. The Project will consist of the construction of approximately 2km of new four-lane municipal roadway extending from 204 St. to 216 St. on the 64th Avenue alignment. A new structure will be constructed to carry the roadway over the Roberts Bank Rail Corridor as well as Provincial Highway 10. Another new structure will be built to carry the roadway over North Creek. The new facility will be a multi-modal facility that includes dedicated bicycle lanes and pedestrian facilities.
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4.
PROJECT FINANCING
4.1
CONTRIBUTION BY CANADA a)
Contribution i)
Canada agrees, subject to the terms and conditions of this Agreement, to pay a contribution to the Recipient of not more than 50% of the total Eligible Costs of the Project, as of the Effective Date, but only up to a total of $3.1M, in accordance with the breakdown by Fiscal Year in Schedule B.
ii) The Parties agree that, no matter what the circumstances and notwithstanding any other provision of this Agreement, Canada will not be required to contribute more than fifteen (15) percent of Canada’s Contribution to those Eligible Costs described in subsection A.1 c) d) f) and g) of Schedule A. b)
No involvement The Parties agree that Canada’s role in the Project is limited to making a financial contribution to the Project and that Canada will have no involvement in the Project and/or the subsequent operation of the Project. Canada is neither a decision maker nor an advisor to the Project, or any part thereof, except to the extent necessary to enforce the provisions of this Agreement.
c)
Appropriation and Funding Any payment due by Canada under this Agreement is subject to there being an appropriation by Parliament for the Fiscal Year in which the payment is to be made. Funding under this Agreement may be reduced or terminated at Canada’s discretion in response to the Government’s annual budget, a change in departmental funding levels by Parliament or any other parliamentary spending decision that has an impact on the Program under which this Agreement is made.
d)
Fiscal Year Budgeting Subject to the terms and conditions of this Agreement, Canada agrees to commit funds for the Project for a Fiscal Year in accordance with the table of estimated contributions in Schedule B. If in a Fiscal Year an amount lesser than the estimated contribution is paid or payable by Canada, Canada will not be obliged to re-allocate the difference to a future Fiscal Year. However, Canada will make reasonable efforts to re-allocate the difference to a future Fiscal Year subject to subsection 4.1 (c) (Appropriation and Funding).
4.2
COMMITMENTS BY THE RECIPIENT a) Costs Canada will reimburse the Recipient only in accordance with the terms and conditions of this Agreement. The Recipient shall fund all costs of the Project including cost overruns, if any.
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b) Project implementation The Recipient shall be solely responsible for the complete, diligent and timely implementation of the Project, in accordance with the terms and conditions of this Agreement. The Recipient shall comply with, and ensure that any Third Party Contractor or Concessionaire complies with all applicable laws, including environmental legislation of Canada and British Columbia in the implementation of the Project under this Agreement. c) Guidelines The Recipient agrees to undertake, or cause to be undertaken, the engineering and construction work, in accordance with the guidelines recognized by the Transportation Association of Canada (TAC), or any other equivalent guidelines approved by the Committee. d) Disclosure of Other Funding and Adjustments The Recipient shall inform Canada promptly of all financial and other assistance received for the Project. If the federal government’s total financial assistance toward the Project exceeds 50% of total Eligible Costs, or if the total financial assistance received or due in respect of the Project’s total Eligible Costs exceeds 100% thereof, Canada may recover the excess from the Recipient or reduce its contribution by an amount equal to the excess. e)
Amounts Owing The Recipient shall declare to Canada any amounts owing to the federal government, under legislation or contribution agreements that constitute an overdue debt. The Recipient recognizes that any amount owing is a debt and may be set off by Canada in accordance with this Agreement.
f) Repayment The Recipient shall repay to Canada any and all disallowed costs, surpluses, and overpayments made under and according to the terms of this Agreement. g) Increase in Project Costs and Insufficient Funds If, at any time during the term of this Agreement, one or all of the Parties determines that it will not be possible to complete construction of the Project unless the Recipient expends amounts in excess of the funding available to it, the Party shall immediately notify the other Party of that determination and Canada may provide notice of suspension in accordance with section 16 (Suspension and Default) of this Agreement. 5.
RECIPIENT OBLIGATIONS Notwithstanding any other provision in this Agreement, the Recipient shall: a)
establish a fixed location(s) or relocation, as required, where this Agreement will be
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managed for its duration and maintain that location until the Committee’s activities have concluded; b)
retain at the location, and make available to the Parties, all documents relevant to this Agreement and the work of the Committee;
c)
prepare and make available to Canada, upon request, all documentation needed for the proper administration of this Agreement, including but not limited to, payment claim forms, approval documents, agendas and minutes of meetings of the Committee and its subcommittees, Contracts, etc.;
d)
ensure that any audit requested by Canada or the Federal Co-Chair under this Agreement is performed and the results are reported to Canada;
e)
promptly inform the Federal Co-chair of all proposed changes to any term of this Agreement;
f)
provide to Canada, as requested, accurate and timely financial forecasts for the Project Components listed in Schedule B;
g)
provide to Canada, as requested, status reports for the Project Components listed in Schedule B to Canada’s satisfaction;
h)
enter into bilateral agreements to support the terms of this Agreement where the Recipient is not the deliverer of the Project; and
6.
COMPLIANCE WITH ENVIRONMENTAL LEGISLATION
6.1
CONDITIONAL COMMITMENT The Recipients acknowledge that: a) Should Canada decide that an environmental assessment (EA) of the Project is required pursuant to the Canadian Environmental Assessment Act (CEAA), the Recipient agree that, despite any other provision of this Agreement, no funds will become payable by Canada to the Recipient under this Agreement unless the EA has been conducted in accordance with the CEAA and Canada has determined that, taking into account the implementation of any mitigation measures that Canada considers appropriate, the Project as assessed pursuant to the CEAA (“CEAA Project”) is not likely to cause significant adverse environmental effects or the “CEAA Project” is likely to cause significant adverse environmental effects that can be justified in the circumstances as determined by a mediator or review panel under CEAA; b) Should an EA of the Project be required pursuant to the CEAA, the Recipient agree that they shall not undertake the construction of the Project until the EA has been conducted in accordance with the CEAA and that Canada has determined that, taking into account the implementation of any mitigation measures that Canada considers appropriate, the “CEAA Project” is not likely to cause significant adverse environmental effects or the “CEAA Project” is likely to cause significant adverse environmental effects that can be
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justified in the circumstances as determined by a mediator or review panel under CEAA; c) Should an EA of the Project be required pursuant to the CEAA, the Recipient agree that Canada may delegate the task of conducting the EA to the Recipients under the direction and in cooperation with Canada; d) Should Canada determine that, taking into account the implementation of mitigation measures that Canada considers appropriate, the “CEAA Project” is not likely to cause significant adverse environmental effects or that the “CEAA Project” is likely to cause significant adverse environmental effects that can be justified in the circumstances as determined by a mediator or review panel under CEAA, Canada shall ensure that a copy of the completed EA report be given to the Recipients and the Recipient agree to implement the mitigation measures set out in the report and any subsequent alternative mitigation measures as agreed by the Parties; e) Should Canada be required to design a follow-up program under the CEAA for the “CEAA Project” or decide that a follow-up program under the CEAA is appropriate in the circumstances, the Recipients agree to design the follow-up program and to implement it to Canada’s satisfaction, and to provide written reports to Canada; f)
Without limiting the generality of any other provision of this Agreement, the Recipient further agree to provide Canada with access to Project sites, upon reasonable notice, for the purpose of ensuring that the mitigation measures and the follow-up program have been implemented;
g) The Recipient further agree that the written reports mentioned in subsection 6.1 e) of this Agreement will indicate whether Canada’s conclusions with respect to the “CEAA Project’s” environmental significance were accurate and whether the mitigation measures that have been implemented by the Recipient are effective; and h) Should Canada need to revisit the EA or ensure that a subsequent EA is conducted, the Recipient agree that all of Canada's obligations pursuant to this Agreement will be suspended from the moment that Canada informs the Recipient that the current EA needs to be revisited or that a new EA needs to be conducted and such situation will remain until Canada has decided that, taking into account the implementation of any mitigation measures that Canada considers appropriate, the “CEAA Project” is not likely to cause significant adverse environmental effects or the “CEAA Project” is likely to cause significant adverse environmental effects that can be justified in the circumstances as determined by a mediator or review panel under CEAA. 7.
ABORIGINAL CONSULTATION
7.1
CONDITIONAL COMMITMENT
7.2
ABORIGINAL CONSULTATION INFORMATION The Recipient shall provide Canada with the following information to assess whether the requirement in subsection 7.1 has been fulfilled: a) Identification of all Aboriginal groups contacted by the Recipient for the Project;
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b) Summary of any and all communication to date with any and all Aboriginal groups; c) Identification of any issues or concerns raised by Aboriginal groups for the Project and, if applicable, how the Recipient intends to address those issues or concerns; d) Written documentation of the Aboriginal groups contacted, and their identity, who are in support of the Project or have no objection to the Project proceeding, and identification of whether the positions are final, preliminary, or conditional in nature; and e) Proposed plan for any further consultation through the Environmental Assessment and Regulatory Phases of the Project, including federal involvement, if applicable. 8.
MANAGEMENT COMMITTEE
8.1
ESTABLISHMENT Within sixty (60) days of the Effective Date, the Parties agree to establish a Management Committee (“Committee”) to administer and manage this Agreement. Each Party agrees to appoint 1 member to the Committee and agrees to notify the other of the appointments within the sixty (60) day period. The Committee will exist until its activities, including the audits, reports and final adjustments, have been completed.
8.2
CO-CHAIRS The Committee shall be chaired by the two (2) members (“Federal Co-chair” and “Recipient Co-chair”). If a Co-chair is absent or otherwise unable to act, the representative duly authorized to replace her/him will replace the Co-chair.
8.3
MEETINGS The Committee shall meet regularly at the places and on the dates agreed to by the CoChairs or at the written request of the Federal or Recipient Co-Chair.
8.4
RULES AND PROCEDURES Within sixty (60) days of its initial meeting, the Committee shall establish written rules and procedures with respect to its meetings and those of its sub-committees, including rules for the conduct of meetings and the making of decisions.
8.5
RECOMMENDATIONS AND DECISIONS All recommendations and decisions of the Committee must be unanimous and recorded in writing. If the Committee cannot arrive at a unanimous decision or recommendation, the committee shall refer the matter to the Parties for resolution as per subsection 15.2 (Referral).
8.6
MANDATE The Committee shall:
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8.7
a)
adhere to and comply with the terms and conditions of this Agreement, including but not limited to policies, procedures and Schedules herein;
b)
review the procedures described in subsection 9.1 (Awarding of Contracts) and ensure that the principles in subsection 9.2 (Contract Provisions) are respected;
c)
monitor the progress of the Project for the purpose of and to the extent necessary to enforce the provisions of this Agreement;
d)
subject to section 4 (Project Financing) and subsection 8.7 (Changes During the Term of the Agreement), review and change the information in Schedule B by amending the Schedule accordingly, to ensure that the work can be completed as described, including but not limited to the Project descriptions, approved budgets, and cash flows, prior to the beginning of each Fiscal Year and as may be required;
e)
establish sub-committees, as needed, for carrying out this Agreement; and
f)
attend to any other function required by this Agreement or as mutually directed by the Parties.
CHANGES DURING THE TERM OF THE AGREEMENT a)
In this section, “significant change” means, in respect of the Project: i. any change to the Project Overview, as described in section 3.2, that Canada deems significant; ii. a change to the Project description, as described in Schedule B, which: i. reduces or increases quantifiable elements of a Project Component as determined by Canada, including but not limited to, distances, sizes, the number of lanes, corridors, stops, vehicles, and structures, by more than 20%; or ii. significantly changes the location of a Project Component, as determined by Canada; or iii. adds or removes a Project Component. iii. a change to a Project Component’s schedule, as described in Schedule B, which will cause said Project Component to be completed after the Project Completion Date; iv. any change that may require a further environmental assessment decision under subsection 6.1; v. one or more increases to Canada’s Contribution to a Project Component, as described in Schedule B, which, when added to any previous increase, would be greater than 20% of Canada’s Original Contribution of said Project Component; and
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b)
A request for a change to the Project will be reviewed by the Committee, and i. If the change is not significant, the Committee may approve or reject it unless the change requires an amendment to any other part of this agreement excluding Schedule B; or ii. If the change is significant or could result in an amendment as contemplated in Subsection 8.7 (b) (i), the Co-chairs shall present it to the Parties for a decision.
8.8
RBRC PARTNERS COMMITTEE Both parties acknowledge the presence of a RBRC Partners Committee. The primary purpose of the Partners Committee is to provide senior level oversight to the project delivery team (Township of Langley) to develop, coordinate and implement the RBRC Projects on behalf of the senior level funding partners.
9.
CONTRACT PROCEDURES
9.1
AWARDING OF CONTRACTS
a) The Recipient shall ensure that all Contracts are awarded and managed in accordance with its relevant policies and procedures, a copy of which will be provided to the Committee, within thirty (30) days of the first Committee meeting, and a copy of any amendment(s) will be provided to the Committee within thirty (30) days of its effective date;
b) Notwithstanding the foregoing, the Recipient shall ensure that Contracts will be awarded in a way that is: i. transparent, competitive and consistent with value for money principles; and ii. in accordance with the Agreement on Internal Trade; or otherwise acceptable to Canada.
c) Canada may require that a Contract for a Project Component be re-tendered if, in Canada’s opinion, it was not awarded in compliance with the foregoing;
d) If Canada requires that the Contract for a Project Component be re-tendered, Canada shall not be responsible for any and all costs associated, directly or indirectly, with said Contract re-tendering; and
e) Within thirty (30) days of the first Committee meeting, the Recipient shall enter the relevant Contract information into HCoMS for any existing Contracts for which the Recipient will receive funding under this Agreement. For all Contracts awarded thereafter, the Recipient shall, within thirty (30) days of awarding a Contract, enter the relevant Contract information into HCoMS. 9.2
CONTRACT PROVISIONS
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The Recipient shall ensure that all Contracts are consistent with, and incorporate, the relevant provisions of this Agreement. More specifically but without limiting the generality of the foregoing, the Recipient agrees to include in the Contracts, provisions to ensure that: a)
proper and accurate accounts and records are maintained and that the Recipient has the contractual right to audit them;
b)
all applicable legislation is respected including labour, environmental and human rights legislation; and
c)
Canada and the Auditor General of Canada, to the extent permitted by law will at all times, and upon reasonable notice, have free access to the Project sites and to any documentation, for the purpose of ensuring compliance with this Agreement, including access to all facilities and information required for inspection and audit.
10.
CLAIMS AND PAYMENTS
10.1
PAYMENT CONDITIONS a) Other than the first Fiscal Year, no payment shall be made by Canada during a subsequent Fiscal Year until the claims for Eligible Costs actually incurred and paid by the Recipient during the previous Fiscal Year have been audited as described in Schedule D and the annual report and audit have been submitted and accepted by the Federal Co-Chair as described in Schedule D. Canada will provide such acceptance or notice of deficiency no later than thirty (30) days from receipt of the required annual reports and audits; b) Canada will under no circumstances be liable for the payment of interest for failing to make a payment under this Agreement; c) Subject to the exception of the claims related to those costs identified in A.1 (h), Canada shall not be obliged to pay any claims submitted after the Final Project Component Claim Date; d) No payment shall be made by Canada until an environmental assessment has been completed in accordance with subsection 6.1 (Compliance with Environmental Legislation); and e) No payment shall be made by Canada until the Recipient has complied with its obligations under section 7 (Aboriginal Consultation).
10.2
METHOD OF PAYMENT Payments by Canada shall be made by means of an Electronic Instruction for Payment.
10.3
CLAIM PROCEDURES a) No payment shall be made by Canada unless the Progress Claim has been certified by the Recipient Co-chair, or a senior official designated, in writing, by the Recipient Co-chair, and approved by the Federal Co-chair; b)
the Recipient agrees to submit Progress Claims in a form acceptable to the Federal
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Co-chair and must include the following: i)
Certification, in HCoMS, by the Recipient Co-chair or a senior official designated, in writing, by the Federal Co-chair, as to the accuracy of the information submitted in support of the claim; and
ii) Breakdown of Eligible Costs claimed, by Project Component listed in Schedule B. iii) Identification of any deferred payment amount. 10.4
HCOMS The Parties agree to use Transport Canada’s Highway Contribution Management System (HCoMS) to process claims and payments and monitor progress under this Agreement. HCoMS will be available to the Recipient in both official languages. Modifications and improvements to the system may be made by Canada at its discretion and expense.
10.5
RETENTION OF CONTRIBUTION Canada shall retain the final five percent (5%) of its contribution for each Project Component under this Agreement until such time as the Recipient fulfills its obligations under sections 10.1 (Payment Conditions) and 10.6 (Final Payment). Any contribution retained by Canada will be paid with the final payment under this Agreement.
10.6
FINAL PAYMENT The request for final payment for each Project Component under this Agreement shall be accompanied by: a) A summary report certified by the Recipient Co-chair confirming: i. Compliance with the terms and conditions of this Agreement; ii. The amounts and the sources of all Project Component funding; iii. All costs of the Project Component; iv. The use made of the contribution under this Agreement and affirmation of all Eligible Costs incurred and paid by the Recipient for the Project Component; and v. All outstanding financial items, including any amount that may have been claimed by the Recipient for ineligible costs or overpayments. b) A Solemn Declaration of Substantial Completion declared by a professional engineer in respect of each Project Component as described in Schedule F; c) Confirmation from the Recipient Co-chair that the TDM Measures required under this Agreement and the associated TDM Plan will be implemented and maintained for a minimum of one (1) year after the Project Completion Date; and d) Any outstanding documents and reports required under this Agreement.
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10.7
TIME LIMITS FOR CLAIMS The Recipient agrees to submit all claims for payment by the Agreement End Date Final Project Component Claim Date for each Project Component. Subject to the exception of the claims related to those costs identified in A.1 (h), Canada will have no obligation to pay a claim submitted after the deadline specified in this provision.
11.
AUDIT, EVALUATION AND REPORTING
11.1
REPORTING – AUDIT EVALUATION GUIDELINES The Recipient shall comply with the Audit Framework contained in Schedule D.
11.2
RECORD KEEPING The Recipient shall ensure that it, and Third Parties with which it contracts, maintains proper and accurate accounts and records, including, but not limited to, contracts, invoices, statements, receipts and vouchers, in respect of the Project, and that these are kept for at least six (6) years after the Project Component. The Recipient shall, upon reasonable notice, make said documents available to Canada for inspection and audit.
11.3
PUBLIC ACCOUNTS The Recipient shall, in its public accounts, reflect Canada’s contribution in accordance with established accounting practices.
11.4
ANNUAL FINANCIAL COMPLIANCE AUDIT The Recipient shall submit to Canada, on an annual basis, and by July 31st of each Fiscal Year commencing the first Fiscal Year in which a claim is paid or payable and for each subsequent Fiscal Year thereafter for which a claim is paid or payable, an audit of the accounts, records, claims, and expenditures incurred under this Agreement in accordance with the Audit Framework attached hereto as Schedule D.
11.5
AUDIT PLAN The Recipient agrees to submit to Canada, by November 30th, of each Fiscal Year for which an audit is required pursuant to section 11.4 (Annual Financial Compliance Audit) and 11.7 (General Compliance Audit) an audit plan of the next annual audit, in accordance with the provisions of Schedule D.
11.6
ANNUAL REPORT The Recipient shall, by July 31st of each Fiscal Year, provide Canada with an annual report on progress achieved under this Agreement during the previous Fiscal Year in accordance with the provisions of Schedule D, and as required by Canada, shall attach all relevant documentation.
11.7
GENERAL COMPLIANCE AUDIT The Recipient shall submit a general compliance audit report to Canada, where the Federal
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Co-chair deems it necessary, in accordance with federal Program requirements. The general compliance audit will provide assurances that the Recipient has complied with specific sections of the Agreement as deemed appropriate by the Federal Co-chair. 11.8
OTHER AUDIT In addition to audits performed by the Recipient under subsections 11.4 (Annual Financial Audit) and 11.7 (General Compliance Audit), Canada may, at its own expense during the Agreement and for a period of 2 years following the Agreement End Date for the purpose of internal Program audit, audit all accounts, records and claims for reimbursement relating to the Project and may undertake reviews of the Recipient’s administrative, financial and claim certification processes, upon written notice to the Recipient, as per section 12 (Access).
11.9
EVALUATION BY THE PARTIES a) The Parties agree to cooperate with respect to the retrospective evaluation of the Project, the costs of which the Parties will share, as defined in Schedule B of this Agreement. b) The Recipient will prepare a retrospective evaluation for each Project receiving a federal contribution of $5 million or more, to the satisfaction of Canada, prepared from data collected at one month after opening and 6 years after opening. The final report will be submitted within 7 years of completion of the Project.
11.10 EVALUATION BY CANADA The Recipient shall, on a written request by Canada, provide all data and information to Canada for the purposes of the national evaluation of the Program for which Canada shall bear all costs. 12.
ACCESS The Recipient shall provide free access to Canada, the Auditor General of Canada and /or their designated representatives at all times, upon reasonable notice, to the Project sites and any documentation for the purpose of ensuring compliance with this Agreement including access to all facilities and information required for inspection and audit.
13.
COMMUNICATIONS The Parties shall comply with the Communications Protocol as established in Schedule C.
14.
INDEMNIFICATION a) The Recipient shall at all times indemnify and save harmless Canada, its officers, servants, employees or agents (“Indemnified Party”), from and against all claims and demands, losses, costs, damages, actions, suits or other proceedings by whomsoever brought or prosecuted in any manner based upon, or occasioned by any injury to persons, damage to or loss or destruction of property, economic loss or infringement of rights caused by or arising directly or indirectly from:
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i. the Project; ii. the performance of this Agreement or the breach of any term or condition of this Agreement by the Recipient, its officers, servants, employees or agents, or by a Third Party, its officers, servants, employees or agents; iii. the design, construction, operation, maintenance and repair of any part of the Project; and iv. any omission, misrepresentation or other wilful or negligent act of the Recipient, Third Party or any other outside party and their respective officers, servants, employees or agents, except to the extent to which such claims and demands, losses, costs, damages, actions, suits, or other proceedings relate to the act or negligence of an Indemnified Party in the performance of his or her duties. b) An Indemnified Party shall give prompt notice to the Recipient of any action threatened or commenced against it in respect of which indemnity may be sought under this Agreement but failure to so notify the Recipient shall not relieve the Recipient from any liability which it may have otherwise than on account of this indemnity. If requested by Canada, the Recipient shall assume the defence of such action with legal advisors chosen by the Recipient and approved by Canada. The Indemnified Party shall cooperate with the Recipient in defending such claims, including providing the Recipient with any necessary information and documentation. An Indemnified Party shall not voluntarily admit any liability or settle any claim against them covered by this indemnity without the Recipient prior written approval. The Recipient may not settle any action commenced against an Indemnified Party without the written consent of Canada and any other Indemnified Party. 15.
DISPUTE RESOLUTION
15.1
DISPUTE RESOLUTION The Parties shall keep each other informed of any matter that could be contentious by exchanging information within the Committee. The Committee shall attempt to resolve potential disputes when it is within its mandate.
15.2
REFERRAL If an issue contemplated by section 15.1 (Dispute Resolution) arises, the Federal Co-Chair and the Recipient Co-Chair shall examine it together as soon as possible and in any event within 20 days within receipt of notice of such contentious matter. Where the Co-Chairs cannot agree on a resolution, the matter will be referred to the Parties for resolution. A decision will be provided within 90 days. Any payments related to the matter issue in dispute will be suspended, together with the obligations related to such issue, pending resolution.
16.
SUSPENSION AND DEFAULT
16.1
SUSPENSION
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Notwithstanding section 15 (Dispute Resolution) of this Agreement, Canada may suspend payment or any obligation to contribute to Eligible Costs in accordance with subsections 16.2 and 16.3 of this Agreement, including any obligation to pay any amount prior to the date of suspension, where the Recipient: a) has submitted false or misleading information, or made a false or misleading representation to Canada; b) has not complied with any obligation, condition, undertaking or term in this Agreement; c) has neglected or failed to pay to Canada any amount due in accordance with this Agreement; d) has been determined, by Canada, under subsection 4.2 h) to be unable to complete construction of the Project unless the Recipient expends amounts in excess of the funding available to it; e) becomes insolvent, commits an act of bankruptcy, takes the benefit of any statute relating to bankrupt and insolvent debtors, or goes into receivership or bankruptcy; or f) is wound up or dissolved. 16.2
NOTICE OF SUSPENSION Canada will not suspend payment pursuant to this Agreement until it has provided the Recipient with written notice specifying the nature of one of the events mentioned in section 16.1 of this Agreement and requesting the event to be remedied within thirty (30) days from the date of notice, unless one of the events under subsection 16.1(e) or 16.1(f) of this Agreement occurs wherein Canada may automatically suspend payment and advise the Recipient, in writing, of the decision.
16.3
DEFAULT (a) Canada shall suspend payment and may declare and advise the Recipient in writing that it is in default if the Recipient fails to remedy any event of suspension mentioned in subsection 16.1 (a) to 16.1(d) within the thirty (30) days pursuant to subsection 16.2; or (b) Canada may consider the Recipient in default, if an event under subsections 16.1(e) or 16.1(f) occurs and advise the Recipient, in writing, of the decision.
16.4
REMEDIES ON DEFAULT If Canada has declared or considered the Recipient to be in default, Canada may, without limiting any other recourses available to it, suspend, subject to subsections 16.2 and 16.3 of this Agreement, or terminate any obligation by Canada under this Agreement, and/or require the Recipient to repay all or part of the contribution, as liquidated damages, forthwith and
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that amount shall be considered a debt due to Canada and shall be reimbursed forthwith on demand to Canada. Any such debt remaining owing and unpaid shall carry interest calculated in accordance with subsection 18.7 of this Agreement.
17.
DISPOSAL AND ABANDONMENT OF ASSETS
17.1
DISPOSAL OF FIXED AND NON-FIXED ASSETS a) Notwithstanding any other provision in this Agreement, if, during the Fixed Asset Disposal Period and Non-Fixed Asset Disposal Period, the Recipient, in respect of that Project Component: i)
sells, leases, encumbers or otherwise disposes of, directly or indirectly, any Fixed Asset or Non-Fixed Asset to a third party; or
ii) takes any action, directly or indirectly, that will leave the Fixed Asset and/or NonFixed Asset no longer available for service to the general public; (collectively referred to as the “Disposed Asset”), the Recipient shall reimburse Canada, upon Canada’s demand, the greater of: I) the proportion of proceeds received by the Recipient from the third party equal to the percentage contributed by Canada for the Disposed Asset; or ll) the proportion of Canada’s Contribution for the Disposed Asset, reduced in accordance with the tables below-mentioned. Notwithstanding the above, the total reimbursed by the Recipient shall not exceed the amount paid by Canada towards said Disposed Asset.
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TABLE A – FIXED ASSET Timeframe:
Up to 1 year after the Project Component Completion Date 1 to 2 years after the Project Component Completion Date 2 to 3 years after the Project Component Completion Date 3 to 4 years after the Project Component Completion Date 4 to 5 years after the Project Component Completion Date 5 to 6 years after the Project Component Completion Date 6 to 7 years after the Project Component Completion Date 7 to 8 years after the Project Component Completion Date 8 to 9 years after the Project Component Completion Date 9 to 10 years after the Project Component Completion Date 10 to 11 years after the Project Component Completion Date 11 to 12 years after the Project Component Completion Date 12 to 13 years after the Project Component Completion Date 13 to 14 years after the Project Component Completion Date 14 to 15 years after the Project Component Completion Date 15 to 16 years after the Project Component Completion Date 16 to 17 years after the Project Component Completion Date 17 to 18 years after the Project Component Completion Date 18 to 19 years after the Project Component Completion Date 19 to 20 years after the Project Component Completion Date 20 to 21 years after the Project Component Completion Date 21 to 22 years after the Project Component Completion Date 22 to 23 years after the Project Component Completion Date 23 to 24 years after the Project Component Completion Date 24 to 25 years after the Project Component Completion Date 25 years after the Project Component Completion Date
TABLE B – NON-FIXED ASSET
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Return of contribution for Fixed Asset (in current dollars) 100% 96% 92% 88% 84% 80% 76% 72% 68% 64% 60% 56% 52% 48% 44% 40% 36% 32% 28% 24% 20% 16% 12% 8% 4% 0%
Agreement for 64th Avenue Extension from 204 St. to 216 St, Township of Langley 2008/2009-2011/2012
Timframe:
Up to 1 year after the Project Component Completion Date 1 to 2 years after the Project Component Completion Date 2 to 3 years after the Project Component Completion Date 3 to 4 years after the Project Component Completion Date 4 to 5 years after the Project Component Completion Date 5 to 6 years after the Project Component Completion Date 6 to 7 years after the Project Component Completion Date 7 to 8 years after the Project Component Completion Date 8 to 9 years after the Project Component Completion Date 9 to 10 years after the Project Component Completion Date 10 years after the Project Component Completion Date
Return of contribution for Non-Fixed Asset (in current dollars) 100% 90% 80% 70% 60% 50% 40% 30% 20% 10% 0%
b) Subject to subsection 19.13 (Assignment), if the Recipient takes any action described in subsection 17.1 a) i) of this Agreement during the Fixed Asset Disposal Period or NonFixed Asset Disposal Period, the Recipient shall assign its rights and obligations under this Agreement to the outside party involved; c) Notwithstanding the foregoing, if the Recipient takes any action described in subsection 16.1 a) i) of this Agreement during the Fixed Asset Disposal Period or Non-Fixed Asset Disposal Period, based on technical or operational requirements of the Recipient, the Recipient may, at Canada's discretion and with its written approval, in lieu of the repayment set out above, reinvest the proceeds from the Disposed Asset into an asset that replaces the Disposed Asset. If Canada deems the reinvestment inappropriate, the Recipient shall be required to reimburse Canada, as per subsection 16.1 a); and d) Notwithstanding the foregoing, if the Recipient takes any action described in subsection 16.1 a) i) of this Agreement during the Fixed Asset Disposal Period or Non-Fixed Asset Disposal Period, for a nominal amount, and the Disposed Asset remains available for service to the general public, Canada may, at its discretion, choose to waive the remedies identified in subsections 16.1 a) I) and 16.1 a) II). 17.2
ABANDONMENT OF FIXED AND NON-FIXED ASSETS If, at any time during the Fixed Asset Disposal Period or Non-Fixed Asset Disposal Period the Recipient proposes to significantly reduce, abandon or substantially abandon, as determined by Canada, a Fixed or Non-Fixed Asset, even if it remains under the ownership of the Recipient, Canada may require the Recipient to reimburse Canada, on demand, a proportionate amount of the funds contributed by Canada for the section of the Project Component or Project Sub-Component which has been reduced, abandoned or essentially abandoned in accordance with the table in subsection 16.1 a) (Disposal of Fixed and NonFixed Assets).
17.3
NOTICE
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The Recipient shall notify Canada in writing, one hundred eighty (180) days in advance if, at any time during the Fixed Asset Disposal Period or Non-Fixed Asset Disposal Period, the Recipient proposes, plans or anticipates to take any action as described in subsection 16.1 a) (Disposal of Fixed and Non-Fixed Assets). The Recipient shall notify Canada in writing, one hundred eighty (180) days in advance if, at any time during the Fixed Asset Disposal Period or Non-Fixed Asset Disposal Period, the Recipient proposes to significantly reduce, abandon or essentially abandon a Fixed and/or Non-Fixed Asset, as described in subsection 16.1 a) (Disposal of Fixed and Non-Fixed Assets). 18.
REVENUES FROM ASSETS
18.1
PUBLIC BENEFIT The Parties acknowledge that their contributions to the Project are meant to accrue to the public benefit. The Recipient will notify Canada in writing within ninety (90) days of the end of a Fiscal Year, if any Fixed Asset and/or Non-Fixed Asset to which Canada has contributed under this Agreement is used in such a way that, in the Fiscal Year, revenues are generated from it which exceed its operating expenses and Canada may require the Recipient to pay to Canada immediately a portion of the excess, in the same proportion as Canada's contribution is to the total cost of the asset. This obligation will apply only to the first twenty (20) complete Fiscal Years following the Project Component Completion Date.
18.2
TOLLING The Project, as described under this Agreement, will not be tolled at any time during a period of twenty-five (25) years after the Project Completion Date, unless an agreement is reached with Canada relative to the establishment of Tolls and the treatment of funds contributed by Canada for the Project under this Agreement, and: (i) A free and fully accessible alternate route is available, without significant restrictions, unless the only alternate route is serviced by ferry, bridge, or through tolled facilities already existing as at the Effective Date; (ii) toll revenues are used exclusively to offset project costs for projects where toll revenues, in whole or in part, flow to a private sector operator excluding Eligible Costs covered under this Agreement; ongoing operating costs; capital maintenance (e.g., resurfacing); a contingency reserve; rate of return on capital (excluding all public contributions); and purchase of private land for the right-of-way, if any; (iii) a tariff of Tolls be made available by the Recipient to any member of the public, on request; (iv) the tariff of Tolls, and exemptions, be applied without discrimination for the same class of user, regardless of their place of origin; and (v) Tolls are collected, where feasible, through the use of electronic tolling systems that
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are compatible with North American standards. The Recipient agrees not to permit the establishment of Tolls, at any time during a period of twenty-five (20) years after the date of completion of a Project, for all or a portion of the Project, unless an agreement is reached with Canada relative to the establishment of Tolls and the treatment of funds contributed by Canada for the Project under this Agreement. 19.
GENERAL
19.1
GOVERNING LAW This Agreement is governed by the laws of British Columbia, subject always to any paramount or applicable federal laws.
19.2
FEDERAL CROWN PREROGATIVE Nothing in this Agreement is intended to or is construed as limiting, waiving or derogating from any federal Crown prerogative.
19.3
COMPLIANCE WITH LAWS The Recipient shall comply with all applicable laws and regulations, including but not limited to environmental laws and regulations, and all requirements of regulatory bodies having jurisdiction over the subject matter of this Project.
19.4
FINANCIAL ADMINISTRATION ACT Notwithstanding any other provision in this Agreement, the obligations contracted by Canada are all subject to the Financial Administration Act (R.S., 1985, c. F-11).
19.5
BINDING OBLIGATIONS Each Party declares to the other that the signing and execution of this Agreement was duly and validly authorized, and that each has incurred a legal and valid obligation that is binding on it.
19.6
DEBTS DUE TO HER MAJESTY IN RIGHT OF CANADA Any amount owed to Canada under this Agreement will constitute a debt due to Her Majesty in Right of Canada, which the Recipient agrees to reimburse Canada forthwith on demand.
19.7
INTEREST ON DEBTS DUE TO HER MAJESTY IN RIGHT OF CANADA Debts due to Her Majesty in Right of Canada will accrue interest in accordance with the Interest and Administrative Charges Regulations (SOR/96-188) of the Financial Administration Act (R.S., 1985, c. F-11).
19.8
SET-OFF BY CANADA Any debt due to Her Majesty in Right of Canada may be set-off against any amounts payable by Canada to the Recipient under this Agreement.
19.9
NO BENEFIT
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No member of the House of Commons or the Senate of Canada will be admitted to any share or part of this Agreement or of any Contract made pursuant to this Agreement, or to any benefit arising from them. 19.10 NO PARTNERSHIP, NO JOINT VENTURE, NO AGENCY, ETC. No provision of this Agreement and no action by the Parties will establish or be deemed to establish a partnership, joint venture, principal-agent relationship, or employer-employee relationship in any way or for any purpose whatsoever between Canada and the Recipient or between Canada and a Third Party. Without limiting the generality of the foregoing, the Recipient agrees not to represent itself, including in any agreement with a Third Party, as a partner or agent of the Crown. Canada shall have no responsibility for fulfilment of any obligation into which the Recipient enters in relation to the Project, including, without limitation, any loan, capital lease or other long-term obligation. 19.11 NO AUTHORITY TO REPRESENT Nothing in this Agreement is to be construed as authorizing a Third Party to contract for, or to incur any obligation on behalf of, a Party or to act as agent for a Party. No provision of this Agreement shall be construed as authorizing a claimant or any person to enter into a Contract or to contract an obligation on behalf of any of the Parties, and the Recipient shall take the necessary action to ensure that any agreement between the Recipient and any Third Party contains a provision to that effect. 19.12 NO ACTIONS OR PROCEEDINGS The Recipient represents that it is not subject to an obligation or prohibition which could restrict or interfere with its performance of this Agreement, and further, that no actions or legal proceedings have been brought and that it has not received any threat of actions or proceedings that could or may restrict or interfere with its performance of this Agreement. The Recipient agrees to inform Canada immediately if any such action or proceedings are threatened or brought during the term of this Agreement. 19.13 ASSIGNMENT The Recipient shall not transfer or assign its rights or obligations under this Agreement without the prior written consent of Canada. Any attempt by the Recipient to assign any of the rights, duties or obligations of this Agreement without Canada’s express written consent shall be deemed invalid. 19.14 WAIVER Any tolerance or indulgence demonstrated by a Party will not constitute a waiver. A Party may only waive its rights under this Agreement in writing. 19.15 CONFLICT OF INTEREST RDIMS No. 2370671 version 5 CANADA – TOWNSHIP OF LANGLEY APGCITIF Page 28 of 44
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No current or former public servant or public office holder or reporting public office holder to whom the Conflict of Interest Act (2006, c. 9, s.2), the Values and Ethics Code for the Public Service and/or the Conflict of Interest and Post-employment Code for Public Office Holders apply, shall derive any direct benefit from this Agreement, unless said individual is in compliance with the applicable provisions of the Act and/or Codes. The Recipient shall inform Canada, in writing, should any real and/or apparent conflict of interest exist or arise that could have a direct impact on Canada’s contribution to the Project. 19.16 INTELLECTUAL PROPERTY The Recipient shall obtain the necessary authorizations, as needed, for the implementation of the Project, from Third Parties who may own the intellectual property rights or other rights in respect of any Projects. Canada shall assume no liability in respect of claims from any Third Party in relation to such rights and to the Agreement. 19.17 CONSEQUENTIAL MEASURES Subject to this Agreement, the Recipient shall independently and at its own cost conclude such arrangements as are necessary to allow the implementation of a Project under this Agreement whenever such Projects affects a municipality, agency, or instrumentality under provincial control. 19.18 LOBBYISTS AND AGENT FEES The Recipient warrants that any person it has hired, for payment, to speak to or correspond with any employee or other person representing Canada on the Recipient behalf, concerning any matter relating to the contribution under this Agreement or any benefit hereunder and who is required to be registered pursuant to the Lobbyists Registration Act R.S. 1985 c. 44 (4th Supplement), is registered pursuant to that Act. The Recipient warrants that no person or entity that is negotiating the whole or any part of the terms of this Agreement receives any payment or other compensation that is contingent upon or calculated upon the contribution hereunder. 19.19 SUCCESSOR This Agreement is binding upon the Parties and their respective administrators and successors. 19.20 OFFICIAL LANGUAGES ACT The Recipient is responsible, in consultation with Canada, for taking the necessary measures to respect the spirit and intent of Official Languages Act, R.S.C. 1985 c. 31 (4th Supp.) to communicate with the public in the official language of their choice. 20.
NOTICES, DOCUMENT AND INFORMATION
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20.1
NOTICE DEEMED GIVEN Any notice, including but not limited to, certificates and declarations provided for under this Agreement shall be delivered in person or sent by registered mail, or facsimile. Said notice shall be deemed to have been delivered on the earlier of either receipt by the addressee or ten (10) business days after mailing if sent by registered mail or the following business day if delivered in person or sent by facsimile.
20.2
DOCUMENTS AND INFORMATION Subject to subsection 19.1 (Notice deemed given), any information and/or documentation provided for under this Agreement may be delivered in person, or sent by mail, facsimile, or by electronic transmission.
20.3
ADDRESSES FOR CANADA AND THE RECIPIENT Any notice, document or information with respect to this Agreement shall be addressed in accordance with the following. A Party may change the address below by notifying the other Party in writing. For Canada:
Any notice to Canada must be sent to: Jim Lothrop, P.Eng Senior Director Highways & Borders Transport Canada Place de Ville, 330 Sparks St. Ottawa (Ontario) Canada K1A 0N5 Telephone No.: (613) 998-1902 Fax No.: (613) 990-9639 E-Mail: [email protected] For The Township of Langley: Colin Wright, P. Eng. General manager, Engineering 20338 65 Avenue Langley, B.C. V2Y 3J1
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Telephone No.: (604) 533-6072 Fax No.: (604) 533.6099 E-Mail: [email protected]
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SIGNATURES This Agreement has been executed on behalf of Her Majesty in Right of Canada by the Minister of Transport, Infrastructure and Communities, and on behalf of the Recipient by [TITLE].
The Township of Langley
HER MAJESTY IN RIGHT OF CANADA
Original signed by: Original signed by:
____________________ [NAME] Minister of Transport, Infrastructure and Communities
____________________ [NAME] [TITLE]
Date: ____________________
Date: ____________________
Witnessed by:
Witnessed by:
__________________
____________________
Date: ____________________
Date:______________________
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SCHEDULE A – ELIGIBLE AND INELIGIBLE COSTS A.1 Eligible Costs Subject to subsection A.2, Eligible Costs will be all direct costs, which are in Canada’s opinion properly and reasonably incurred and paid by an eligible Recipient for an eligible investment under a contract for goods or services necessary for the implementation of a Project, and includes: a) Capital costs, as defined and determined according to generally accepted accounting principles, and relating to the construction, rehabilitation or improvement of highways, roads, bridges/tunnels, railways, multi-modal facilities, grade crossing/separations, customs facilities, connectors to inter-modal facilities, ITS and any other infrastructure Projects that meet the selection criteria; b) Costs related to signage, lighting, highway markings and utility adjustments; c) The costs of joint communication activities (press releases, press conferences, translation, etc.) and road signage recognition set out in the Communication Protocol that will form part of the Agreement; d) All planning (including plans and specifications) design and evaluation costs specified in the Agreement such as the costs of environmental planning, surveying, engineering, architectural supervision, testing and management consulting services, as limited by subsection 4.1 a) ii) of this Agreement; e) The costs of engineering and environmental reviews, including environmental assessments and follow-up programs as defined in the Canadian Environmental Assessment Act and the costs of remedial activities, mitigation measures and follow-up identified in any environmental assessment; f)
The costs of Aboriginal consultations;
g) The costs of developing and implementing innovative techniques for carrying out the Project; h) Recipient audit and evaluation costs as specified in the Agreement; i)
Other costs that, in the opinion of Canada, are considered to be direct and necessary for the successful implementation of the Project and have been approved in writing prior to being incurred, with the exception of Ineligible Costs as noted below.
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A.2
Ineligible Costs Certain costs are not eligible for funding and therefore will not be considered in the calculation of the total Eligible Costs of the Project, including: a) Costs incurred prior to the signature of the Agreement and after the Project Completion Date. b) The cost of purchasing land, associated real estate and other fees, financing charges and interest payments on loans; c) Provincial sales tax and the Goods and Services Tax for which the Recipient or a third party is eligible for a tax rebate and all other costs eligible for rebates; d) Costs which have been shared under other federal statutes or programs; e) Legal fees; f)
General repairs and maintenance of a Project work and related structures unless they are part of a larger capital expansion Project;
g) Compensatory costs due to construction Projects; h) Services or works normally provided by the Recipient incurred in the course of implementation of the Project except those specified as Eligible Costs; and i)
Employee wages and benefits, overhead costs as well as other direct or indirect operating, maintenance and administrative costs incurred by the Recipient, and more specifically costs relating to survey, engineering, design, architecture, supervision, management and other services delivered directly by permanent employees of the Recipient, or of a Crown corporation or corporation owned and controlled by the Recipient except in the case where the Recipient can demonstrate value for money.
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SCHEDULE B – DETAILED PROJECT DESCRIPTION AND CASH FLOW
Total Cost
Project Component
Total Eligible Cost
Project Costs
Description
Canada
Breakdown of Expenditures
Twp. of Langley
2008/09
2009/10
2010/11
No.
th
$
$
$
%
$
%
$
$
$
$51,000,000
$6,200,000
$3,100,000
50%
$3,100,000
50%
--
$4,470,000
$1,730,000
$X,XXX,XXX
$X,XXX,XXX
$X,XXX,XXX
50%
$X,XXX,XXX
50%
$X,XXX,XXX
$X,XXX,XXX
$X,XXX,XXX
50%
$X,XXX,XXX
50%
th
64 Avenue Extension from 204 St. to th 216 St
1
The Project will consist of the construction of approximately 2km of new four-lane municipal roadway extending from 204 St. to 216 St. on the 64th Ave. alignment. A new structure will be constructed to carry the roadway over the Roberts Bank Rail Corridor as well as Glover Rd. (Provincial Highway 10). Another new structure will be built to carry the roadway over North Creek.
2
TOTAL
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SCHEDULE C – COMMUNICATIONS PROTOCOL C.1
General
C.1.1 The Parties agree to carry out joint communications activities and products that will promote opportunities to communicate project milestones with the public in an open, transparent, effective and proactive manner, using appropriate, ongoing, consistent public information material acknowledging the Parties’ contributions. C.1.2 The Committee shall identify appropriate forms for these communications and public information activities and products, and may strike a communications subcommittee responsible for providing advice and support on these matters. If necessary, the sub-committee will create a proposed rollout of communication activities. The sub-committee shall be made up of at least one representative of each Party. C.1.3 All Joint Public Communication Material in relation to this Agreement shall be prepared in both official languages in accordance with the Official Languages Act (Canada), and shall equitably reflect the contributions of the Parties and, where applicable, any Third Party Operators. This includes ensuring equal recognition and prominence where words, logos, symbols and other types of identification are incorporated into materials. C.1.4 All Joint Public Communication Material or signage related to Project Components shall be produced in accordance with the Federal Identity Program. C.1.5 All Joint Public Communication Material concerning this Agreement shall be in a form approved by the Committee. C.1.6 In the event of an election call that affects the riding the project is located in, whether federal, provincial or municipal, no public announcements will be permitted. C.1.7 Costs associated with the development and delivery of joint communications products and activities are an Eligible Cost. All costs are to paid by the Recipient and submitted to Canada for reimbursement in accordance with the funding ratio established in Schedule B. C.2
Operational Notices
C.2.1 Operational notices including but not limited to public calls for tenders, road closure notices, transportation management activities or highway safety activities that may result from the performance of work under this agreement will not require federal approval. C.3
Communication with the Public
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Agreement for 64th Avenue Extension from 204 St. to 216 St, Township of Langley 2008/2009-2011/2012
Public information material C.3.1 The Parties may produce information kits, brochures, public reports, and web pages providing information for private-sector interest groups, contractors and members of the public on this Agreement. C.3.2 All draft joint communications products shall be distributed to the partners in sufficient time to allow for appropriate approvals. The lead-time should be, at a minimum, twenty (20) business days prior to the event/publication of material.
Media releases C.3.3 Unless agreed to in advance by the Parties, the Parties shall organize a signing ceremony and a joint media release shall be issued when the Agreement is signed. A release, in which each of the Parties is assigned equal importance, shall be issued in respect of each Project or in combination with other Projects, unless otherwise agreed by the parties. The releases will include quotations from all Parties. The Parties shall agree upon and approve the content of the release. Media conferences, public announcements and other joint events C.3.4 The Parties shall co-operate in organizing media conferences, announcements and official ceremonies and shall respect the order of precedence as established by Canadian Heritage or other mutually agreed upon protocol. Unless agreed to in advance by the Parties, no public announcement concerning a Project covered by this Agreement shall be made by either of the Parties or, where applicable, unless the other Party has been given at least twenty (20) business days notice of the public announcement. C.3.5 Either Party may organize a joint media conference or public ceremony pertaining to a Project. Unless agreed to in advance by the Parties, the Party that does so shall give the other Party reasonable notice of twenty (20) business days, and such notice shall also be given in respect of other joint events or public announcements. Signage C.3.6 the Recipient further agrees to supply, erect and maintain, on the direction of Canada: a) prior to the implementation of any Project under this Agreement, including new construction, Project signs measuring not less than 1.2 metres by 2.4 metres and visible by users traveling in either direction at the beginning and the end of each Project, unless otherwise agreed upon by the Committee, must be erected and maintained until the Project Component Completion Date. Canada will provide the Recipient with the necessary information to construct the signs; b) upon completion of a project and where feasible, the Parties may provide and install, a plaque or permanent sign bearing an appropriate inscription. The RDIMS No. 2370671 version 5 CANADA – TOWNSHIP OF LANGLEY APGCITIF Page 37 of 44
Agreement for 64th Avenue Extension from 204 St. to 216 St, Township of Langley 2008/2009-2011/2012
Committee must approve the design, wording and specifications of such permanent signs. c) where a sign is to be erected by either Party referring to either Party’s financial contribution, it shall include specific reference to the federal contribution herein made; d) except for traffic control or safety devices, no additional signage concerning the Project shall be erected by any Party; e) the costs of any temporary or permanent signage shall be an Eligible Cost.
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Agreement for 64th Avenue Extension from 204 St. to 216 St, Township of Langley 2008/2009-2011/2012
SCHEDULE D – AUDIT FRAMEWORK
D.1
Purpose
The purpose of the audit framework is to provide independent and objective assurances that: a) systems and procedures are in place to ensure that the management process has regard to the terms and conditions of the Agreement and ensures that the financial assistance is granted for Projects that met the eligibility criteria and the applicable obligations or requirements. b) disbursements are supported by a rigorous process that has regard to risk management and verifies that the eligibility requirements are complied with and the costs incurred are allowable.
D.2
Audit Objectives
The objectives of audits conducted under this Agreement are as follows: a) to determine whether funds have been disbursed for the agreed purposes, by examining the payment approval process, including the nature and extent of the supporting documents, the accuracy of the information supplied in respect of claims for payment and the evidence of appropriate authorizations, and such other due diligence reviews as appropriate; and b) to ensure that prompt and timely corrective action is taken in response to audit findings.
D.3
Financial Compliance Audit Criteria
The criteria with which, the auditor will express an opinion as to the recipient’s financial compliance are established by the following sections of Agreement: a) Section 4.1 – Contribution by Canada; b) Section 4.2 – Commitments by the Recipient; c) Schedule A – Eligible and Ineligible Costs; d) Schedule C – Communications Protocol, Section C.1.7; e) Additional sections as deemed necessary by Canada. RDIMS No. 2370671 version 5 CANADA – TOWNSHIP OF LANGLEY APGCITIF Page 39 of 44
Agreement for 64th Avenue Extension from 204 St. to 216 St, Township of Langley 2008/2009-2011/2012
D.4
Auditor’s Report
D.4.1 The auditor should provide an audit opinion as to the recipient’s compliance with the criteria established by Section D3 – Audit Criteria of Schedule D – Audit Framework. D.4.2 The auditor should provide an audit opinion in accordance with Section 5815 – Audit Reports on Compliance with Agreements, Statutes and Regulations of the Canadian Institute of Chartered Accountant’s assurance handbook. D.4.3 The auditor’s report should refer to the eligible criteria and to a Schedule of Eligible Expenditures. D.4.4 Notes attached to the Schedule of Eligible Expenditures should include a general note outlining a general description of the project, a listing of significant accounting policies used to prepare the Schedule of Eligible Expenditures and a note describing what constitutes and eligible and ineligible expenditure.
D.5
Roles and Responsibilities
D.5.1 The independent auditor will have an equal duty of care to both Canada and the Recipient. D.5.2 The Committee shall approve the annual audit plans and the report of the audit findings, and shall ensure that prompt and timely corrective action is taken in response to the audit findings, including the recovery of funds, where applicable D.5.3 The Recipient will be responsible for ensuring that all audits required under the Agreement are carried out and will pay all audit costs, except for those audits specified in Section 11.8.
D.6
Audit Plan
D.6.1 The Committee shall ensure that an annual audit plan is drawn up and includes an overall strategy for the audit as well as a detailed audit plan. The overall strategy would include but is not limited to the following: a) Conduct of preliminary engagement activities that would entail gathering a sufficient understanding of the terms of the engagement, an assessment of the Recipient’s management structure and an assessment of independence;
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Agreement for 64th Avenue Extension from 204 St. to 216 St, Township of Langley 2008/2009-2011/2012
b) The overall audit strategy sets the scope, timing and approach to the audit, and guides the development of more detailed audit plans; c) Ascertaining the reporting objectives of the engagement to plan the timing of the audit and the nature of the communications required, and key dates for expected communications with management and those responsible for governance; a) An appropriate assessment of important factors that will determine the focus of the engagement team’s efforts including a determination of a materiality level, preliminary identification of areas where there may be higher risks of material misstatement, preliminary identification of material components and account balances, evaluation of whether the auditor may plan to obtain evidence regarding the effectiveness of internal controls, and identification of recent entity-specific, industry, financial reporting or other relevant developments; b) Deployment of resources for specific audit areas, an assessment of amount of resources required and how the resources will be managed subject to the completion of the auditor’s risk assessment procedures; The detailed component of the audit plan would include but is not limited to the following: a) A description of the nature, timing and extent of planned risk assessment procedures sufficient to assess the risks of material misstatement as determined by the auditor’s understanding of the entity, its environment and assessment of materiality; b) A description of the nature, timing and extent of planned further audit procedures at the assertion level for each material class of transactions, account balances and disclosures as determined by the auditor’s determination of assessed risks; c) Any additional procedures required to carry out the engagement. D.6.2 The Committee shall ensure that all audit reports be available to the public on request. In addition, pursuant to the Treasury Board of Canada’s audit policy, the Federal Co-chair shall ensure that the results of any available audits are provided to the public on request. D.6.3 Any audit conducted within the framework of this Agreement shall be done in accordance with accepted auditing standards such as the rules of the Canadian Institute of Chartered Accountants.
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Agreement for 64th Avenue Extension from 204 St. to 216 St, Township of Langley 2008/2009-2011/2012
SCHEDULE E – INFORMATION E1
General The purpose of Schedule E is to identify the data and information that the Recipient must collect and provide to Canada under this Agreement, as well as the sharing and the use of this information by the Parties. The Parties agree that the collection of accurate and timely data and information is essential to ensure the sound management of this Agreement and to report to Canadians on results and accomplishments.
E2
Annual Report As per section 11.6 (Annual Report), Recipient will provide an Annual Report by July 31st of each Fiscal Year. The report shall include the following: 1. General Overview of Results: A general overview of the results accomplished under the Agreement during the Fiscal Year, including a description of the work completed, expenditures, environmental issues, and any concerns affecting the progress or completion of the Projects Components in the Agreement 2. Copies of all Schedule B revisions signed during that fiscal year 3. Project updates, including: • description, map and status of the work completed on approved Projects • contracts started or completed and the estimated date of completion of contracts • major milestones (e.g. opening of a section of a project, etc.) • maps and photographs of the project locations showing the work in progress and the work completed on approved Projects • communications activities undertaken during the Fiscal Year (e.g. news releases) • environmental monitoring report to confirm that the environmental mitigation measures outlined in the CEAA screening report were implemented, a description of any changes that were required, and a summary of environmental issues encountered during the implementation of the project • report on performance measurement data collected as included in the prospective analysis if applicable 4. A Fiscal Year-end summary table of expenditures under this Agreement; 5. A copy of the annual audit for the Agreement.
E3
Retrospective Evaluation
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Agreement for 64th Avenue Extension from 204 St. to 216 St, Township of Langley 2008/2009-2011/2012
Within 7 years following the Final Project Component Completion Date, the Recipient agrees to prepare and submit a retrospective analysis in order to evaluate whether the objectives of the prospective analysis have been met. The retrospective evaluation will follow up on the information contained the Prospective Analysis.
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Agreement for 64th Avenue Extension from 204 St. to 216 St, Township of Langley 2008/2009-2011/2012
SCHEDULE F – SOLEMN DECLARATION OF SUBSTANTIAL COMPLETION In the matter of the Canada – [RECIPIENT] [PROJECT] Agreement entered into between Her Majesty in right of Canada, represented by the Minister of Transport, Infrastructure and Communities, and The Township of Langley, represented by the [TITLE], on [DATE]. I, [NAME], a Registered Professional Engineer in the Province of British Columbia do solemnly declare as follows: 1. That I am the [TITLE, DEPARTMENT, RECIPIENT], and as such have knowledge of the matters set forth in this affidavit; 2. That the work identified as the Project in Schedule B of the above-mentioned Agreement has been substantially completed as described in Schedule B, Revision , dated the _______ day of ______ 20__. 3. That the above-mentioned [PROJECT COMPONENT] is open for its intended purpose. As described in subsection 3.2 4. That the work for the [PROJECT COMPONENT]: • was carried out by [PRIME CONTRACTOR], between [START DATE] and [COMPLETION DATE]; • was supervised and inspected by qualified staff; • conforms with the plans, specifications and other documentation for the [PROJECT COMPONENT OR SUB-COMPONENT]; • conforms with applicable environmental legislation, and that appropriate mitigation measures have been implemented; and • conforms with the traffic, construction and engineering guidelines as approved by the Management Committee established under the above mentioned Agreement. Declared at [CITY] , in the [Province or Territory] of [NAME OF PROVINCE / TERIRITORY] this ___________day of _________ 20___.
Engineer’s SEAL (name, title)
____________________________ (Witness name, title)
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ATTACHMENT C
PROJECT AGREEMENT
64th Avenue Rail Overpass at Highway 10 Project
Roberts Bank Rail Corridor Program (RBRC)
TransLink BC Ministry of Transportation and Infrastructure Port Metro Vancouver Township of Langley
February 24, 2009
2904702.1
Project Agreement 64th Avenue Rail Overpass at Highway 10 (RBRC) Project
Roberts Bank Rail Corridor Program
Roberts Bank Rail Corridor Program
PROJECT AGREEMENT 64th Avenue Rail Overpass at Highway 10 Project (the “Project”) THIS AGREEMENT made the ________day of _______________, 2009 BETWEEN: SOUTH COAST BRITISH COLUMBIA TRANSPORTATION AUTHORITY, having an office at 1600 - 4720 Kingsway, Burnaby, B.C. V5H 4N2 (“TransLink”) AND: HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF BRITISH COLUMBIA as represented by the Minister of Transportation and Infrastructure, having an office at 940 Blanshard Street, PO Box 9850 Stn Prov Govt, Victoria, B.C. V8W 9T5 (“BC MoT)”) AND: THE CORPORATION OF THE TOWNSHIP OF LANGLEY, having an office at 4914 221st Street, Langley, B.C. V3A 3Z8 (the “Township”) AND: VANCOUVER FRASER PORT AUTHORITY, having an office at 100 The Pointe, 999 Canada Place, Vancouver, B.C. V6C 3T4 (“Port Metro Vancouver”) WHEREAS A. The British Columbia Ministry of Transportation and Infrastructure (“BC MoT”), the South Coast British Columbia Transportation Authority (“TransLink”), Vancouver Fraser Port
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Project Agreement 64th Avenue Rail Overpass at Highway 10 (RBRC) Project
Roberts Bank Rail Corridor Program
Authority (“Port Metro Vancouver”) and the Township of Langley (“Township”), herein called the Parties, along with other agencies identified below, wish to promote international trade through a program, funded in part by the Asia-Pacific Gateway and Corridor Initiative, that provides a comprehensive program of road/rail grade separations on the Roberts Bank Rail Corridor (the “RBRC Program”). B. The RBRC Program is intended to facilitate and improve the movement of rail freight to and from the Roberts Bank marine terminals through the communities of Delta, Surrey, Langley City and the Township of Langley while providing relief for those communities and road users affected by the rail transport and enhancing movement of people and goods in those communities. C. The RBRC Program Partners include Transport Canada, BC MoT, TransLink, Port Metro Vancouver, the Township, the Corporation of Delta, the City of Surrey, the City of Langley, the British Columbia Railway Company, the Canadian Pacific Railway Company, the Canadian National Railway, and the BNSF Railway. The RBRC Program Partners have agreed to participate in and to contribute to the RBRC Program as described in an “Agreement-inPrinciple” signed on June 28th, 2007 (the “AIP”) under which TransLink, on behalf of the partners under the RBRC Program, has been appointed to develop, coordinate and implement, administer and manage the overall delivery of the RBRC Program. D. TransLink has appointed a program manager for the RBRC Program (the “RBRC Program Manager”) who will undertake the day to day activities of the RBRC Program. E. The 64th Avenue Highway 10 Road Rail Grade Separation Project (the “Project”) is part of the RBRC Program, and will separate rail and vehicular traffic thereby facilitating and improving the movement of people and goods on the road network and the movement of rail freight to and from the Roberts Bank marine terminals through the communities of the City of Langley and the Township of Langley. F. TransLink wishes to improve the Major Road Network and promote the movement of goods and people through participation in the Project. G. BC MoT wishes to ensure it maintains a safe and efficient highway system through the delivery of the Project. H. Port Metro Vancouver wishes to participate in the Project in order to improve and enhance the movement of imported and exported goods to and from the marine port facilities at Roberts Bank along the Roberts Bank rail corridor. I. The Township wishes to participate in the Project in order to provide relief for its citizens through the grade separation of rail and vehicular traffic and to improve public safety, emergency vehicle access and the movement of goods and people in the surrounding communities.
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Project Agreement 64th Avenue Rail Overpass at Highway 10 (RBRC) Project
Roberts Bank Rail Corridor Program
J. Accordingly, the Parties wish to meet the objectives of the RBRC Program through the overpass and associated road improvements described in this Agreement by the cost-effective planning, design, construction and funding of the Project. The Parties agree to cooperate in the Project with a shared sense of purpose, mutual respect and trust. K. The Parties agree that the Township will be responsible for the day to day delivery and implementation of the Project in accordance with the terms and conditions of this Agreement including land acquisition and consolidation, procurement, design and construction. IN CONSIDERATION of the promises and covenants contained in this Agreement the Parties hereby agree as follows: 1.
DEFINITIONS 1.1
In this Agreement, the following terms will have the following meanings:
(a)
“Approval Matrix” means the approval matrix attached as Schedule “A” to this Agreement;
(b)
“Agreement-in-Principle” means the agreement-in-principle dated for reference June 27, 2007, in which Transport Canada, BC MoT; TransLink, Port Metro Vancouver; the Corporation of Delta; the City of Surrey; the City of Langley; the Township; British Columbia Railway Company; Canadian Pacific Railway; Canadian National Railway; and, BNSF Railway agreed to participate in and to contribute to the RBRC Program, including this Project, and under which TransLink is appointed to manage the overall delivery of, and to develop, coordinate and implement, the RBRC Program;
(c)
“BC MoT” means Her Majesty the Queen in right of the Province of British Columbia as represented by the Minister of Transportation and Infrastructure;
(d)
“Communications” includes media releases, media updates, public responses, printed materials, information sessions and staged events;
(e)
“Communications Plan” means the plan which is approved as part of the Project Implementation Plan and which shall be consistent with the RBRC Program communications plan;
(f)
“Commencement Date” means the date of reference of this Agreement;
(g)
“Conceptual Plan” means the plan for the Project attached as Schedule “B” to this Agreement as it may be amended in writing from time to time during the Term;
(h)
“Contract” means the written agreement for the Design, Construction and completion of the Project that will be made between the Township and the successful Proponent in accordance with the terms of the RFP;
(i)
“Contractor” means the person who enters into the Contract with the Township;
(j)
“Contribution Amount” means, subject to amendment in accordance with this Agreement, the contribution for each Party to the Project as identified and set out in
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Project Agreement 64th Avenue Rail Overpass at Highway 10 (RBRC) Project
Roberts Bank Rail Corridor Program
Schedule “C” to this Agreement for an aggregate total amount not to exceed $51 Million or such other amount or amounts as the Parties hereto may agree in writing; (k)
“Construction” means all things other than Design necessary to complete the Work;
(l)
“Design” means the compendium of drawings, plans, specifications and other project material produced by a professional engineer or other professional that is lawfully authorized to provide design services in British Columbia, to calculate, determine and define the items of Work to be constructed together with the labour required to prepare such materials;
(m)
“District Transportation Manager” means the District Transportation Manager of the Lower Mainland District of the Ministry of Transportation and Infrastructure;
(n)
“Document of Requirements” means the document described in Subsection 6.1(b) as may be amended in writing from time to time during the Term;
(o)
“Engineer” means a person who is authorized, registered or licensed under the Engineers and Geoscientists Act to provide professional engineering services in British Columbia;
(p)
“Evaluation Committee” means the RFP evaluation committee as described in Subsection 6.1 (c) ;
(q)
“Funding Partner Representatives” means representatives of those agencies identified in Schedule “C” that are contributing to the Project;
(r)
“G.S.T.” means the goods and services tax imposed under the Excise Tax Act (Canada);
(s)
“Improvement(s)” includes anything made, constructed, erected, built, altered, repaired or added to, in, on or under Project Land, and attached to it or intended to become a part of it, and also includes any clearing, excavating, digging, drilling, tunnelling, filling, grading or ditching of, in, on or under Project Land;
(t)
“Major Road Network” has the meaning set out in the SCBCTA Act;
(u)
“Milestone Dates” means the milestone dates set out in Schedule “D” to this Agreement as they may be amended in writing by the Parties hereto;
(v)
“Multi-Modal Use” means the safe, uninterrupted, and unobstructed use of a highway including travelled lanes, sidewalks, pathways and shoulders by all forms of traffic including automobiles, bicycles, motorcycles, buses, trucks and pedestrians;
(w)
“Owner’s Engineer” means Delcan Corporation, or any other person approved in advance in accordance with the Approval Matrix, who has been retained to provide engineering services for the Project on behalf of the Township;
(x)
“Owner Partner Representatives” means representatives of those agencies that will own and/or have jurisdiction over the Project’s infrastructure at completion, being BC MoT, Township and TransLink for its interest in the Major Road Network and transit services within the Project;
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Project Agreement 64th Avenue Rail Overpass at Highway 10 (RBRC) Project
Roberts Bank Rail Corridor Program
(y)
“Parties” means BC MoT, TransLink, Port Metro Vancouver and Township.
(z)
“Port Metro Vancouver” means Vancouver Fraser Port Authority;
(aa)
“Process Advisor” means the person who is appointed by the Township to review the procurement process for the Project;
(bb)
“Produced Material” means all accounting records, findings, software, data, specifications, drawings, reports, documents and other material produced by the Contractor (or any of its employees) or any of its subcontractors (or its employees) as a result of the Contract including all such material which is in existence prior to the start of the Term or developed independently of the Contract;
(cc)
“Project” means the Design and Construction of Improvements shown on the Conceptual Plan together with all associated works and infrastructure, the scope of which is described in Schedule “E” to this Agreement;
(dd)
“Project Budget” means the project budget described in Schedule “C” to this Agreement as it may be amended in accordance with the terms of this Agreement;
(ee)
“Project Change Request” means the written request referred to in Section 8.1;
(ff)
“Project Costs” means the actual eligible costs of completing the Project as defined in Schedule “C”;
(gg)
“Project Implementation Plan” means the plan described in Subsection 6.1(a) as maybe amended in writing from time to time during the Term;
(hh)
“Project Manager” means Doug Hyde or any other person approved in advance in accordance with the Approval Matrix, who has been appointed or retained by the Township to provide project management services for the Project on behalf of the Township;
(ii)
“Project Land” means the land upon which the Project is constructed;
(jj)
“Project Organization and Human Resource Plan” means the organization and identification of human resources for the Project identified in Section 5;
(kk)
“Project Procurement Plan” means the procurement plan identified in Section 5 and approved in accordance with the Approval Matrix;
(ll)
“Project Schedule” means the detailed schedule for the Design, Construction and completion of the Project set out in the Project Implementation Plan, which will be consistent with the Milestone Dates;
(mm) “Project Scope” means the description in Schedule “E” to this Agreement and as generally shown on the Conceptual Plan in Schedule “B” to this Agreement that will be more fully developed and designed in accordance with the Project Implementation Plan and the Document of Requirements all in accordance with this Agreement; (nn)
“Property Costs” means Project Costs relating to the acquisition of real property;
(oo)
“Project Steering Committee” means the committee established by the RBRC Program as described in Schedule “F”;
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Project Agreement 64th Avenue Rail Overpass at Highway 10 (RBRC) Project
Roberts Bank Rail Corridor Program
(pp)
“Proponent” or “Proponents” means a person or persons who submit a proposal in response to the RFP;
(qq)
“Province” means Her Majesty the Queen as represented by the Province of British Columbia;
(rr)
“RBRC Program” means the program, funded in part by the Asia-Pacific Gateway and Corridor Initiative, that provides a comprehensive program of road/rail grade separations on the Roberts Bank rail corridor (the “RBRC Program”), of which the Project is a part, and which is intended to facilitate and improve the movement of rail freight to and from the Roberts Bank marine terminals through the communities of Delta, Surrey, Langley City and the Township of Langley while providing relief to those communities from the rail transport and enhancing the movement of people and goods in those communities;
(ss)
“RBRC Program Manager” means Collings Johnston Inc or any other person appointed by TransLink to undertake the day to day management activities of the RBRC Program on behalf of the RBRC Partners;
(tt)
“RBRC Program Partners” means each of the organizations that signed the Agreement in Principle;
(uu)
“RFP” means the Request for Proposals for the Project issued by the Township;
(vv)
“SCBCTA Act” means the South Coast British Columbia Transportation Authority Act;
(ww) “Substantial Completion” means the Work has reached the state where it is ready for Multi-Modal Use or is being used for the purpose intended, confirmed as such by expert opinion of the Owner’s Engineer, and is so certified by the Project Manager and without restricting the generality of the foregoing, includes all of the following: (i)
final paving of all roads;
(ii)
full operation of all structures and drainage systems;
(iii)
full operation of all traffic lighting and signalization;
(iv)
placement of all temporary pavement markings and layout for all permanent pavement markings;
(v)
erection of all regulatory and guide signage; and
(vi)
installation of all median and roadside barriers and other safety devices,
with the exception of defects and deficiencies and incomplete works that do not affect its appearance or impair its use provided the total value of all incomplete, defective and deficient Work does not exceed 3% of the Project Budget set out in Schedule “C” to this Agreement; (xx)
2904702.1
“Term” means the period of time as set out in Section 3.5;
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Project Agreement 64th Avenue Rail Overpass at Highway 10 (RBRC) Project
Roberts Bank Rail Corridor Program
(yy)
“Total Completion” means that the entire Work (including the grant of a nonexclusive, non-transferable, perpetual, irrevocable, royalty-free, worldwide licence of the as-built drawings along with all moral rights therein from the Contractor to the Township and MoT) except for those items which are or may be the subject of a warranty claim, has been performed to the requirements of the Contract and is so certified by the Contractor through the Contractor’s Engineer;
(zz)
“Township” means the Corporation of the Township of Langley;
(aaa)
“TransLink” means the South Coast British Columbia Transportation Authority;
(bbb) “Work” or “Works” means everything to be provided and performed by the Township in relation to the Project including the provision of all professional, technical, skilled and unskilled labour, services, material, equipment and including, without limitation, all Design and Construction, and any action as necessary for the Contractor, subcontractors and other contractors to complete and perform their respective obligations arising from and in accordance with the terms and conditions of the Contract or contracts. 1.2
The schedules, that shall form part of this Agreement and are attached hereto, are as follows: Schedule “A” — Approval Matrix; Schedule “B” — Conceptual Plan; Schedule “C” — Project Costs, Contribution Amounts and Project Budget; Schedule “D” — Milestone Dates; Schedule “E” — Project Scope;
2.
SCBCTA ACT
2904702.1
2.1
The Township, BC MoT and Port Metro Vancouver acknowledge that TransLink may, by bylaw, establish standards for all or any part of the Major Road Network, including the Project, in accordance with the SCBCTA Act.
2.2
Prior to completion of the Project, the Township’s staff will recommend to the Township Council that applicable bylaws be amended to formally designate ________________ [name of Road] as a truck route, to be effective no later than the date on which the Project is open to the public.
2.3
If the Township formally designates ___________ [name of Road] as a truck route, TransLink staff will recommend to the TransLink Board of Directors that ________ [name of Road] from _________ to _________ (including __________) and ________ [name of Road] from _________ [name of Road] to __________ [name of Road] be formally designated under section 18 of the SCBCTA Act as part of the Major Road Network.
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Project Agreement 64th Avenue Rail Overpass at Highway 10 (RBRC) Project 3.
Roberts Bank Rail Corridor Program
PROJECT DELIVERY 3.1
The Township will deliver the Project in accordance with the terms of this Agreement.
3.2
The Township represents and warrants that it has, or will retain, the skills and experience necessary to carry out the Project in a professional, competent and diligent manner.
3.3
The Township will undertake and deliver the Project to completion, or will cause its Contractor to undertake and deliver the Project to completion, in accordance with this Agreement and, without limitation:
(a)
in accordance with Schedule “E” to this Agreement for the Project Scope;
(b)
in a professional, competent, timely and diligent manner, in accordance with acceptable standards and specifications set out in this Agreement;
(c)
in compliance with all applicable laws, statutes, regulations, by-laws, and directions of all governmental and statutory authorities issued under lawful authority; and
(d)
achieve Substantial Completion by 2012 or such later date as agreed to by the Parties in accordance with the Approval Matrix. 3.4
In order to deliver the Project on behalf of the Parties in accordance with this Agreement, and without limiting the foregoing, the Township:
(a)
will comply with and enforce all agreements that it enters into to have the Project delivered;
(b)
will ensure all consents, permits, licences, certificates and approvals, including an environmental assessment in accordance with the Canadian Environmental Assessment Act, necessary to complete the Project are obtained prior to commencement of Construction;
(c)
will ensure proper implementation of the Project Implementation Plan;
(d)
will ensure the Project Manager facilitates review and approval of the Project deliverables in accordance with the Approval Matrix; and
(e)
will ensure that:
2904702.1
(i)
the Project Manager promptly advises the Parties of any changes that may have a significant impact on the scope, schedule or budget of the Project;
(ii)
access to all land that is impacted by the Construction of the Project is maintained;
(iii)
the Project Manager advises the Parties promptly upon receiving notice from the Contractor of the anticipated date of full Multi-Modal Use;
(iv)
the Parties have access to the Project at all reasonable times to carry out their obligations under this Agreement and to ensure compliance with the Contract; and
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Project Agreement 64th Avenue Rail Overpass at Highway 10 (RBRC) Project (v)
Roberts Bank Rail Corridor Program
if required, a reference plan under section 107 of the Land Title Act is prepared and deposited in the land title office in order to dedicate all highways.
3.5
The term of this Agreement commences on the Commencement Date and terminates on the date that all warranty and any other obligations under the Contract are fully performed or such earlier date provided for in this Agreement.
3.6
The Township:
(a)
will develop the Project Implementation Plan, the Document of Requirements and the Project Budget; and
(b)
will complete the Project in accordance with this Agreement. 3.7
The Township will ensure monthly progress reports describing the status of the Project are provided to the Project Steering Committee 15 days following the end of each month or such other period of time that the Parties may direct. The Project Steering Committee will review the progress reports for general conformance with the RBRC Program. The Parties will review for compliance with the Project and this agreement. The monthly progress reports will contain the following:
(a)
progress of Design and Construction to date in relation to and compared against the Project Schedule and the likelihood of meeting each of the Milestone Dates;
(b)
an up-to-date Project Schedule, showing dates on which Milestones Dates have been achieved, indicating any variances, and showing projected dates for future Milestone Dates;
(c)
a brief description of Project Work planned for the next month;
(d)
an up-to-date summary of actual Project Costs, forecast of costs to Total Completion, and variances, if any, from the Project Budget;
(e)
any procurement undertaken for the Project;
(f)
any material communications undertaken for the Project;
(g)
any land acquisition for the Project;
(h)
any required approvals;
(i)
any safety issues encountered;
(j)
quality management and assurance status;
(k)
risk management and monitoring and any actions taken or recommended to manage or mitigate risks;
(l)
a description of any significant difficulties encountered, any anticipated claims for extra Project Costs, or any other actual or anticipated deviations from Project Scope, Project Budget, Project Schedule, or other plans; and
(m)
any other matters requested by the Parties.
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4.
3.8
The Parties agree that a Project Steering Committee will review all key Project decisions for general conformance with the RBRC Program as described in the Approval Matrix in accordance with the terms of reference set out in Schedule “F” to this Agreement.
3.9
Each of the Township, TransLink and BC MoT will appoint an Owner Partner Representative who will have the authority to take any actions required and to make timely decisions and approvals on behalf of his or her respective agency for this Project as described in the Approval Matrix.
PROJECT MANAGER AND OWNER’S ENGINEER 4.1
The Township will ensure that the Project Manager and the Owner’s Engineer undertake and complete all of the tasks required of them under this Agreement at the times set out in this Agreement for the completion of such tasks. Without limitation, the Township will ensure that the Project Manager:
(a)
administers all contracts in relation to the Project;
(b)
confirms the accuracy of invoices for payment within the approved Project Budget and Project Schedule;
(c)
recommends certification of Substantial Completion and Total Completion to the Township, BC MoT and TransLink; and
(d)
after acceptance of the recommendation in Subsection 4.1 (c), issues certification of Substantial Completion and Total Completeion. 4.2
5.
Roberts Bank Rail Corridor Program
If, at any time during the Term, either the Project Manager or the Owner’s Engineer is unable to undertake his or her duties, the Township will notify the Owner Partner Representatives and, with the approval of Owner Partner Representatives in accordance with the Approval Matrix, the Township will immediately appoint or retain another person to undertake the duties of the Project Manager or the Owner’s Engineer as applicable.
RBRC PROGRAM MANAGER 5.1
(a)
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The primary purpose of the RBRC Program Manager is to undertake the day-today activities of the program on behalf of the Partners Committee. Specific responsibilities related to this Project include: acting as secretariat to the Project Steering Committee: (i)
ensuring that the Project Steering Committee functions in an effective and efficient way;
(ii)
coordinating distribution and collection of Project and relevant RBRC Program documentation to and from relevant parties in a timely manner; and
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Project Agreement 64th Avenue Rail Overpass at Highway 10 (RBRC) Project (iii)
(b)
6.
Roberts Bank Rail Corridor Program
ensuring that the items requiring attention and decision from the RBRC Propgram Partners are expediently brought forward to the attention of the Parties.
providing independent oversight and verification of Project Costs and financial accountability throughout lifetime of the project: (i)
verifying Project Costs, assessing their conformance with overall RBRC Program objectives and making a recommendation for payment to individual RBRC Program Partners providing funding to the Project, following the agreed-upon principles for Project Costs as described in Schedule “C”.
(ii)
ensuring that the Project, where possible will benefit from available economies of scale during RBRC Program implementation; and
(iii)
establishing and maintaining a financial planning framework to facilitate RBRC Program and Project cash flow planning and financial tracking to the Project.
PROJECT IMPLEMENTATION PLAN AND DOCUMENT OF REQUIREMENTS 6.1
The Project Manager will, before issuance of the RFP, in consultation with the Owner’s Engineer and Process Advisor, provide the Project Procurement Plan to the Owner Partner Representatives for approval in accordance with the Approval Matrix. This Project Procurement Plan will include:
(a)
the RFP including the Document of Requirements, as described in Section 5.2 (b);
(b)
evaluation methodology and scoring process;
(c)
establishment of the Evaluation Committee;
(d)
detailed approval processes and schedule for the procurement, in accordance with the Approval Matrix;
(e)
contract management; and
(f)
cover letter by the Process Advisor indicating their approval of the processes and evaluation framework outlined in the Procurement Plan. 6.2
The Project Manager will, before award of the Contract and in consultation with the Owner’s Engineer prepare and provide the Project Implementation Plan for implementation of the Project to the Project Steering Committee for review and to the Owner Partner Representatives for approval in accordance with the Approval Matrix. The Project Implementation Plan will include the following:
(a)
Project background, overview and organization;
(b)
the Document of Requirements, prepared in cooperation and consultation with the engineering staff for the Township, TransLink and BC MoT, that will address:
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(i)
Project Scope;
(ii)
performance criteria and technical requirements;
(iii)
design criteria ,engineering standards and specifications;
(iv)
quality management;
(v)
risk management and mitigation;
(vi)
traffic management;
(vii)
bonding and insurance requirements;
(viii)
safety audit; and
(ix)
roles and responsibilities;
(c)
Project Budget and Reporting;
(d)
Project Schedule with Milestone Dates and work breakdown structure;
(e)
critical success factors;
(f)
Project Procurement Plan;
(g)
change management plan;
(h)
traffic safety strategy acceptable to the District Highway Manager;
(i)
Contract management;
(j)
Communications Plan; and
(k)
Project Organization and Human Resource Plan. 6.3
No review or approval of the Project Implementation Plan will be construed as evidence that the Project Implementation Plan or any part thereof is complete, satisfactory or is in compliance with the Contract if there is subsequent evidence to the contrary that it is not.
6.4
the Township acknowledges and agrees that:
(a)
the Township will ensure the Project Manager delivers the Procurement Plan, RFP and the Project Implementation Plan to the Project Steering Committee and the Owner Partner Representatives so that there is adequate time to review, comment or and approve as applicable based on the Approval Matrix, understanding that the Parties agree to act expeditiously in their review;
(b)
the RFP will not be issued until the Project Procurement Plan has been reviewed and approved in accordance with the Approval Matrix;
(c)
the Document of Requirements will be included in the RFP; and
(d)
the award of Contract will not occur until the Project Implementation Plan has been reviewed and approved in accordance with the Approval Matrix.
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PROCUREMENT PROCESS AND AWARD OF CONTRACT 7.1
The Township will ensure that all procurement processes and procedures, including the RFP, are fair, equitable, open, transparent and competitive and that all proponents will be afforded a full and fair opportunity to compete. The Township will prepare a Project Procurement Plan as described in Section 5.1 for review and approval in accordance with the Approval Matrix.
7.2
The Township will appoint a process advisor who will oversee the procurement process to ensure that the process is fair, equitable, open, transparent and competitive and that all proponents will be afforded a full and fair opportunity to compete.
7.3
The Township will prepare and issue the RFP which will:
(a)
ensure that only those persons who have been short-listed under the Request For Expressions of Interest are permitted to submit a proposal in response to the RFP;
(b)
provide for the consent of surety, letters of credit and all other submittals and Contract security documents that must be delivered to the Township with the proposal; and
(c)
include the criteria for the evaluation of all compliant proposals made in response to the RFP. 7.4
The Township will ensure that the Contract:
(a)
includes insurance and bonding requirements satisfactory to the Township and BC MoT;
(b)
requires the Contractor to retain suitably qualified engineer(s);
(c)
allows for approved Project Change Requests;
(d)
requires the Contractor to provide the Project Manager with not less than 30 days notice of the anticipated date of Multi-Modal Use;
(e)
requires the Contractor to obtain, prior to commencement of Construction, all necessary consents, permits, licences, certificates, approvals and environmental permits required by competent governmental authorities that are necessary for the completion of the Project; and
(f)
requires the Contractor (or its employees) and any subcontractor (or its employees) to deliver the Produced Material to the Township and BC MoT together with all documents satisfactory to the Township granting the non- exclusive, non-transferable, perpetual, irrevocable, royalty-free, worldwide licence to use the Produced Material to the Township and to BC MoT. 7.5
The Project Manager will have the resulting proposals reviewed and approved in accordance with the Project Procurement Plan and Approval Matrix and will:
(a)
reject all proposals that do not meet the mandatory criteria set out in the RFP, and
(b)
evaluate and rank all compliant proposals according to the evaluation criteria.
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8.
Roberts Bank Rail Corridor Program
7.6
Subject to the Process Advisor’s opinion obtained by the Township that the procurement process has been fair, equitable, open, transparent and competitive, the evaluation and ranking of the proposals and award of the Contract will be reviewed and approved by the Parties in accordance with the Approval Matrix whereupon the Project Manager will forward to the Township the Evaluation Committee’s recommendation and Owner Partier Representatives’ approval and , if accepted by the Township Council, the Township will negotiate the Contract with the successful proponent in compliance with the process described in the RFP.
7.7
Upon the successful negotiation of the Contract, the Project Manager will advise the Owner Partner Representatives and the RBRC Program Manager of that fact and, upon approval by the Owner Partner Representatives, and if accepted by the Township Council, the Township will, in accordance with the RFP, ensure that the Contract is executed by the Contractor and the Township.
7.8
The Parties acknowledge that it is their intention to deliver the Project utilizing a design- build process, however, if no acceptable proposal is submitted in accordance with the RFP, the Parties will consider delivering the Project by another delivery method and, if they determine to do so, another RFP or other appropriate procurement process will be issued by the Township and the provisions of this Section will apply to the issuance of that subsequent RFP or procurement process.
COMPLIANCE REVIEW AND QUALITY MANAGEMENT 8.1
The Owner’s Engineer will review the Project to ensure it is being completed in accordance with the Document of Requirements and the Contract and the Owner’s Engineer will provide an opinion, in writing, to the Project Manager on that matter and if the Owner’s Engineer determines that the Project is not being completed in accordance with, the Document of Requirements and the Contract, the Owner’s Engineer will so advise the Project Manager who, in turn, will so advise the Project Steering Committee and the Owner Partner Representatives for review and approval in accordance with the Approval Matrix and:
(a)
if the Owner Partner Representatives approve an alternate method of completing the Project, it will authorize the Project Manager to complete the Project in that manner and the Project Implementation Plan, the Document of Requirements and the Contract will be amended accordingly; or
(b)
if the Owner Partner Representatives do not approve a proposed alternate method of completing the Project, the Project Manager will ensure the Contractor completes the Project in accordance with the Document of Requirements and the Contract.
2904702.1
8.2
Nothing in Section 7.1 will be construed to relieve the Township from its obligations to have the Project delivered in accordance with this Agreement.
8.3
The Township will ensure that the Contract requires a quality management plan prepared or approved by an independent consultant and that includes compliance
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reviews of Design and Construction of the Project to ensure compliance with the design and engineering standards. The Project Manager will provide the quality management plan to the Owner Partner Representatives for review for general compliance with the RBRC Program. 9.
CHANGE MANAGEMENT Project Change Requests 9.1
During the Term, any Party may request a change to the Project Scope, the Project Schedule, the Project Budget, the Project Implementation Plan, the Document of Requirements or the Contract. That Party must prepare a Project Change Request with a full description of the proposed change, the reason for requesting the change, a proposed method of adjustment for, or an amount of adjustment to, the Project Budget and the Project Schedule, if any, and any other proposed consequential adjustments to the Contract and deliver it to the Project Manager.
9.2
The Project Manager will review the Project Change Request and determine:
(a)
the impacts on the Contract, the Document of Requirements, the Project Implementation Plan, the Project Budget, the Project Scope and the Project Schedule;
(b)
the options available and the preferred option to mitigate or avoid such negative impacts;
(c)
the steps the Contractor or any other person must take to mitigate or avoid such impacts; and
(d)
the cost of the proposed change.
2904702.1
9.3
The Project Manager will advise the Parties of the Project Change Request and its assessed impact on the Project.
9.4
If the Parties agree that the Project Change Request should be considered further, subject to Section 9.5, the Project Manager will forward the request to the Project Steering Committee who will review the Project Change Request for general conformance to the RBRC Program and will provide any comments and advise of any non-conformances to the Project Manager, who will then advise the Parties of such feedback. .
9.5
Any material change to the Project Scope, Project Budget or Project Schedule will require the approval of the Parties in accordance with the Approval Matrix.
9.6
If a Project Change Request is substantially caused by or required by one Party, after considering the Project Change Request, the Parties may decide to approve the Project Change Request provided that the Party or Parties benefiting from the Project Change Request first agrees to bear all of the costs that are incurred as a result of that Project Change Request at no cost to the Project.
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Project Agreement 64th Avenue Rail Overpass at Highway 10 (RBRC) Project
10.
Roberts Bank Rail Corridor Program
9.7
If the Project Change Request is approved and it changes Project Costs, the Parties agree to amend the Project Budget and Contribution Amounts by each Party as required in accordance with Section 10.
9.8
If the Project Change Request is approved, the Township will amend the Document of Requirements, Project Implementation Plan and the Contract, as applicable, to reflect the approved change to the Project Scope, the Project Budget, Project Contributions and the Project Schedule.
COST OVERRUNAS AND ABANDONMENT Cost Overruns 10.1
The Parties will use their best efforts to keep the Project Costs within the Project Budget, however, if at any time Project Costs are forecast to exceed the Project Budget, the Parties may jointly agree to amend the Project Scope to accommodate the cost increase so that Project Costs are kept within the Project Budget while ensuring that the objectives of the RBRC Program and of the Project are reasonably met
10.2
If the Parties are unable to amend the Project Scope to keep the Project Costs within the Project Budget while ensuring that the objectives of the RBRC Program and of the Project are reasonably met, the Parties may request additional funds from either or both the RBRC Program or their respective agencies as follows:
(a)
request the RBRC Manager for additional funds from the RBRC Program, in which case the RBRC Manager will request the RBRC Program Partners to evaluate the request and review it for general conformance to the scope, budget and costing of the RBRC Program, and determine availability of funds;
(b)
request additional funding from their respective agencies and, if such request for funding is approved, the Parties may agree to amend the Project Budget and contribute additional funding to cover the overruns in their respective proportionate share.
10.3
If no additional funds are available from the RBRC Program or the Parties’ respective agencies and the Project Cost cannot be reasonably reduced without significantly impacting Project and RBRC Program objectives, the Parties will:
(a)
consider whether any of the Program or Project objectives could be amended in order to reduce costs to meet the Project Budget in which case the RBRC Manager will request the RBRC Program Partners to evaluate the request and review it for general conformance to the scope, budget and costing of the RBRC Program; or
(b)
if it is prior to award of the Construction Contract, agree to abandon the Project in which case each Party will pay a prorated amount of its Contribution Amount of the Project Costs incurred up to and including the date of the abandonment of the
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Project and the obligations of the Parties under this Agreement will be at an end; and (c)
if it is after the award of the Construction Contract, the Township and BC MoT may agree to pay for overruns of the Project Costs beyond the Project Budget provided the overruns are associated with delivery and do not result from Project Change Requests by another Party.
10.4
If additional funds are obtained from the RBRC Program or the Parties’ respective agencies or if scope is reduced to meet the Project Budget, the Township will amend other documents in accordance with Section 9.8 and the RBRC Program Manager will be advised of the amendments.
Abandonment, Termination 10.5
11.
If the Contract has not been awarded, the Project may be abandoned as a result of an event beyond the control of the Parties provided that each Party will pay a prorated amount of its Contribution Amount of the Project Costs incurred up to and including the date of the abandonment of the Project and, in which case, the obligations of the Parties under this Agreement will be at an end.
DESIGN REVIEW 11.1
The Project Manager will provide the Owner Partner Representatives with written notice of any impending Design review no later than 14 days prior to the Contractor’s submittal due date pursuant to the Design submittal schedule and the Owner Partner Representatives will provide written feedback to the Township no later than 14 days after receiving the complete Design review package provided that:
(a)
the timing of the Design review is pursuant to the Design submission schedule as agreed between the Contractor and the Township, as may be amended from time to time between the Contractor and the Township;
(b)
the Township has, upon amendment of the Design review schedule, forthwith provided the Owner Partner Representatives with a copy and, in any event, provided the most current Design submission schedule no later than 14 days prior to any amended submission date therein or as may otherwise he agreed in writing by the Contractor and the Township; and
(c)
the Township implements and adheres to a communication process with respect to Design reviews that includes the following steps:
2904702.1
(i)
provides an e-mail notice to the Owner Partner Representatives no less than 14 days before the Design submission from the Contractor is due;
(ii)
the Township will forthwith forward the complete Design submittal package from the Contractor in the appropriate electronic format and/or hardcopy to the Owner Partner Representatives along with a covering letter from the Township;
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12.
13.
Roberts Bank Rail Corridor Program
(iii)
the covering letter in Subsection (ii) above will provide a summary of what portion of the Design is to be reviewed, provide a list of all documents within the package to be reviewed and specify the date by which the Township requires a written response from the Owner Partner Representatives; and
(iv)
for significant Design reviews, at the request of the Owner Partner Representatives, the Project Manager will organize a Design review meeting between the Contractor and the Owner Partner Representatives. Such meetings will be scheduled to permit reasonable time for review of the Contractor’s Design submission prior to the meeting and to allow sufficient time for written feedback within 14 days as aforementioned in this Section.
PROJECT LANDS AND DISPOSITION OF SURPLUS LANDS 12.1
The Parties will make available for the Project any lands owned prior to the Commencement Date that are designated in whole or in part as Project Land, at no cost to the Project where those lands are determined to be necessary for the Project by the Owner Partner Representatives.
12.2
If any lands that are not owned by any Party are determined to be necessary for the Project by the Owner Partner Representatives, the Township will make best efforts to acquire the lands in a timely manner.
12.3
The provisions of this Section will survive and continue to apply after the termination of this Agreement.
PROJECT COMPLETION 13.1
On Substantial Completion, the Township will ensure that:
(a)
the Owner’s Engineer completes all reviews required under Section 8.1 and obtains all required certifications and advises the Township that Substantial Completion has been achieved;
(b)
all compliance reviews to be complete at Substantial Completion in accordance with the Contract have been completed; and
(c)
the Project is ready for full Multi-Modal Use. 13.2
On Total Completion, the Township will:
(a)
ensure that all terms and conditions of the Contract have been fully performed (subject only to warranty obligations) and that all components of the Project have been fully completed;
(b)
ensure that all compliance reviews pursuant to the Contract are complete and that all non-compliances, defects, deficiencies and incomplete work have been rectified or completed (except for warranty obligations);
(c)
obtain all required certifications from the Contractor with respect to Total Completion;
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(d)
deliver to each Owner Partner Representative as they may require, a copy in both paper and electronic formats of autoCAD drawings prepared on the latest version of autoCAD, of all Produced Material together with an non-exclusive, non-transferable, perpetual, irrevocable, royalty-free, worldwide licence to use, reproduce, modify and distribute the Produced Material granted from the Contractor to the Township and BC MoT; and
(e)
ensure the Contractor has completed all incomplete work and rectified all identified defects and deficiencies, except for warranty obligations, in accordance with the Contract and to the satisfaction of the Parties.
14.
PAYMENT OF FUNDING CONTRIBUTIONS 14.1
The Parties to this Agreement will contribute funds to the Project as set out in Schedule “C” to this Agreement.
14.2
Not later than the l0th day of the month following the end of each calendar month during the Term (or such other period of time that the Parties, may direct), the Township will forward a detailed invoice for progress payment to the RBRC Program Manager. In that invoice, the Project Manager will certify that all expenditures pertain to the Project and are Project Costs pursuant to the terms of this Agreement for that month. The Project Manager will provide the following supporting documentation with each request:
(a)
a monthly progress report as described in Section 3.7;
(b)
receipts or other supporting documentation evidencing payment by the Township of Project Costs;
(c)
a description of what the Project Costs expenditures covered;
(d)
a summary of payments made to date by all contributing RBRC Program Partners;
(e)
a summary of outstanding payments requested from any other contributing agencies; and
(f)
any other documentation reasonably requested by the Parties to support the request. 14.3
The RBRC Program Manager will review the invoices for completeness and conformance with the RBRC Program in accordance with Section 5.1, confirming the calculations for each funding participant’s share taking into account eligibility of Project Costs to each organization, ensuring that the total contribution by each Party to the Project remains in accordance with Schedule “C”, and advising each Party of its review.
14.4
The RBRC Program Manager will provide a report outlining total expenditures for the Project, each Party’s proportionate share of Project Costs incurred since the last progress payment request and the balance then due by each Party.
Each Party agrees it will pay its respective share of the progress payment requested under Section 14.2 above directly to the Township within 30 days of receipt of the invoice in accordance with Schedule “C”.
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. If, after review of the invoice and documentation provided by the Project Manager in accordance with Section 14.2 above, a Party or the RBRC Program Manager identifies any error or omission in the invoice within 10 days of receipt of the invoice, it will notify the Project Manager and the RBRC Program Manager with a copy to the other Parties. The Project Manager will promptly investigate such discrepancy and amend and resubmit the invoice or, if no amendment is warranted, provide further documentation to the Parties clarifying the matter.
14.6 14.7
The monthly invoice of Project Costs referred to in Section 12.2 must be certified by the Project Manager as being correct and include the following statement: “This statement is delivered to the Township of Langley pursuant to an agreement between TransLink, the Ministry of Transportation and Infrastructure, the Vancouver Fraser Port Authority and the Township of Langley which is dated for reference November ___, 2008 (the “Project Agreement”). I certify that this is a true and correct statement of the Project Costs (as defined in the Project Agreement) which have been incurred by the Township of Langley during the statement period on account of the Project (as defined in the Project Agreement).”
14.8
If:
(a)
the Township is not in material breach of the Agreement; and
(b)
each Party is satisfied, acting reasonably, with the supporting documentation provided under Section 14.2 above; each Party will pay their respective share of the progress payment requested under Subsections 14.3 and `4.4 above within 30 days of receipt of the RBRC Invoice in accordance with Schedule “C”. 14.9 14.10 The Project Budget specified in Schedule “C” to this Agreement will be inclusive of all applicable taxes. 14.11 The Parties will release their final payment within 30 days after Total Completion of the Project, receipt of all of the supporting documentation required under Section 11.2 and the following, which are to be provided to all Parties:
(a)
2904702.1
a written certificate, executed by the Township’s Director of Engineering and Operations, that the Project has been completed in accordance with this Agreement and, in particular, meets or exceeds engineering specifications and standards set out in Schedule “E” to this Agreement;
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a statement, certified by the Township’s Chief Financial Officer, which must include the total amount of Project Costs, a breakdown of each Party’s contribution to the Project, and the following statement: “I certify that the Project Costs as stated have been incurred by the Township of Langley, are attributable to this Project, are correct, meet the definition set out in the Project Agreement dated for reference November ___, 2008 and are net of the Municipal GST rebate”; and
(c)
15.
a Project close-out report, prepared by the Owner’s Engineer, which sets out recommendations for the operation, maintenance and future rehabilitation of the Project. COVENANTS OF THE TOWNSHIP 15.1
The Township will:
(a)
pay, when due, all taxes, rates, levies, duties, charges and assessments levied or charged, at any time, by any competent governmental authority which relate to the Project and the Township’s obligations under this Agreement and which the Township is liable to pay;
(b)
deliver to the other Parties immediately upon demand, receipts or other evidence of the payment of all money required to be paid by the Township under this Agreement;
(c)
observe, abide by and comply with:
(d)
(i)
all laws, bylaws, orders, directions, ordinances and regulations of any competent governmental authority in any way affecting the Project and the Township’s obligations under this Agreement, and
(ii)
the provisions of this Agreement;
on the request of the Parties, deliver to it the following: (i)
a list of all personnel of the Township who are engaged in delivering the Project;
(ii)
all contracts and agreements related to the Project;
(iii)
substantiation of all services provided to the Township with respect to the Project.
16.
REPRESENTATIONS AND WARRANTIES OF THE PARTIES
16.1
The Township, Port Metro Vancouver, BC MoT and TransLink each warrant and represent to the other Parties with the knowledge that the other Parties will rely upon these warranties and representations in entering into this Agreement and in completing their obligations under this Agreement that it has the power, capacity and authority to enter into this Agreement and to carry out its obligations under this Agreement.
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Project Agreement 64th Avenue Rail Overpass at Highway 10 (RBRC) Project 17.
18.
Roberts Bank Rail Corridor Program
ASSIGNMENT 17.1
No Party may assign this Agreement without the prior written consent of the others, such consent not to be unreasonably withheld.
17.2
The assignment of this Agreement does not release the Township from its obligation to observe and perform all the provisions of this Agreement on its part to be observed and performed unless the Parties specifically release the Township from such obligation in its consent to the assignment of this Agreement.
FUTURE OPERATION, MAINTENANCE AND REHABILITATION 18.1
The Township will ensure that, during the Term, the Work is operated, maintained and rehabilitated in compliance with all applicable laws, statues, regulations, by-laws, and directions of all governmental and statutory authorities issued under lawful authority, including, without limitation, any standards established by TransLink for the Work under the SCBCTA Act or those standards established by BC MoT.
18.2
The Parties acknowledge and agree that, after Substantial Completion of the Project, it is their intention that the operation, maintenance and rehabilitation of the improvements will be as follows:
(a)
the Province will own and BC MoT will be responsible for the operation, maintenance and rehabilitation of the structure going over the railway and Highway 10 as well as any improvements within the Province’s jurisdiction;
(b)
the Township will own and be responsible for the operation, maintenance and rehabilitation of the Improvements within its jurisdiction, and:
(c)
2904702.1
(i)
the Township shall maintain and rehabilitate the travelled lanes, sidewalks, pathways, bicycle lanes, and shoulders of 64th Avenue including that portion on the structure going over Highway 10, and
(ii)
if any traffic control signal is placed on Township property to regulate vehicle movements thereby causing an adverse impact on Highway 10, the Township agrees that BC MoT will have control over the phasing and timing of such signal;
subject to Section 18.1, the Township and BC MoT agree that prior to completion of the Project, the Project Manager in cooperation with the District Transportation Manager and a Township representative will prepare an agreement which will be entered into by the Township and BC MoT with respect to the foregoing and the future operation, maintenance and rehabilitation of the Project. 18.3
The provisions of this Section will survive and continue to apply after the termination of this Agreement.
18.4
All information, material and documentation (including the Produced Material) relating to the Improvements owned by either the BC MoT or the Township
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including copyright in that information, material or documentation (including the Produced Material) become the property of the respective Party having jurisdiction over the Improvements. 19.
20.
RECORDS, AUDIT AND INSPECTION 19.1
The Township will maintain accurate and complete books and records in relation to its operations under this Agreement including all transactions pertaining to the Project and all Project Costs including, without limitation, supporting documentation for all Project Costs related to the Project, from the date of this Agreement until seven years after the completion of the Project in order to accommodate audit and Freedom of Information and Protection of Privacy Act requirements.
19.2
The Township will account for all contributions and expenditures for the Project in accordance with generally accepted accounting principles.
19.3
The Parties will have the right to enter upon the Township’s premises for the purpose of inspecting or auditing the Project Costs and the records and books of the Project at any time during normal business hours. Without limiting the generality of the foregoing, the Parties will have the right to inspect and copy any records and books relating to the Project and Project Costs, including any supporting documentation and to cause an audit to be taken by them or by an independent auditor.
19.4
The Parties will have the right to enter upon the Project site, for the purpose of conducting a physical inspection of the Work, at any time during normal business hours.
INDEMNITY AND RELEASE 20.1
The Township will indemnify and save harmless TransLink, BC MoT, Port Metro Vancouver, their respective subsidiaries, directors, officers, employees and agents, (collectively the “Indemnified Parties”) from and against any and all losses, claims, complaints (including, without limitation, complaints pursuant to human rights legislation), damages, actions, causes of action, fines, penalties, costs and expenses (including, without limitation, actual legal fees and disbursements) the Indemnified Parties may sustain, incur, suffer or be put to any time, either before or after the expiration or termination of this Agreement, arising out of, or in connection with the Project or the Work, including, without limitation:
(a)
any breach of this Agreement or anything done or omitted to be done pursuant to this Agreement, whether negligently or otherwise, by the Township or any councillor, officer, employee, agent, contractor or subcontractor of the Township;
(b)
the Design, engineering, Construction, operation, maintenance or rehabilitation of the Project by the Township, whether negligent or otherwise;
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(c)
any contravention or alleged contravention of applicable laws, statutes, regulations, by-laws, or directions of governmental or statutory authorities issued under lawful authority, including, without limitation, those related to the environment, environmental protection and contaminated sites;
(d)
the use and occupation of the Project Lands, whether negligent or otherwise; or
(e)
any Project Steering Committee participation, review, inspection, audit, approval, acceptance or payment by TransLink, BC MoT or their respective contractors and consultants in relation to the Design, engineering, Construction, operation, maintenance or rehabilitation of the Project or the Work; whether or not such losses, claims, complaints, damages, actions, causes of action, fines, penalties, costs or expenses relate to the acts or omissions, whether negligent or otherwise, of the Indemnified Parties.
21.
22.
20.2
In addition to the foregoing, and notwithstanding any other term or provision herein contained, the Township, for and on behalf of itself, its councillors, officers, employees, agents, contractors and subcontractors, hereby unconditionally, absolutely and irrevocably releases and forever discharges the Indemnified Parties from any and all losses, liabilities or damages, at law or in equity and whether direct, indirect or consequential, which relate to, arise out of, or are in any way connected with the Design, engineering, Construction, operation, maintenance or rehabilitation of the Project or the Work, whether caused by, or arising through the negligence of the Indemnified Parties.
20.3
The Township acknowledges that the indemnity under Section 208.1 and the release under Section 20.2 will not be affected in any way by the provisions of Section 2.
INSURANCE 21.1
The Township will ensure that insurance and bonding or other contract security is put in place for the Project with insurers and sureties licensed in British Columbia with coverage of a type, and in amounts, that BC MoT specifies for projects of the scope, size and exposure of this Project, during the term of this Agreement and for any subsequent ongoing operation and maintenance and rehabilitation of the resulting infrastructure.
21.2
The Township shall require and ensure that each contractor and sub-contractor involved in the Project maintains insurance compatible with the coverage required in Section 21.1.
DISPUTE RESOLUTION AND JURISDICTION 22.1
2904702.1
If any dispute arises under this Agreement, the Parties involved in the dispute will attempt to make decisions regarding resolution of any dispute efficiently, quickly and cost-effectively. Those Parties will disclose to the other Parties all relevant information and documents regarding any dispute in a timely fashion
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with the intent that the Parties resolve any dispute within 14 days of the dispute arising (or within such other time period agreed to by the Parties) through amicable negotiations, failing which, the Parties will resolve the dispute as follows: (a)
by referring the matter to the Parties’ representatives for a unanimous resolution; and
(b)
failing the unanimous resolution of the matter within 14 days of the dispute being referred to it under Subsection (a), by referring the matter to the following representatives of the Parties for resolution or such other representatives as may be appointed by the Parties from time to time: (i)
the Municipal Administrator of the Township;
(ii)
the Vice President, Capital Management and Engineering of TransLink;
(iii)
the Vice President, Business Development of Port Metro Vancouver; and
(iv)
the Assistant Deputy Minister, Partnerships of BC MoT,
and, subject to applicable laws, the Parties will provide candid and timely disclosure to each other of all relevant facts, information and documents to facilitate the resolution of the dispute.
23.
22.2
Subject to Section 22.5 below, if a dispute under this Agreement is not resolved under Subsection 22.1(b) within 30 days of the dispute being referred to the persons identified in Subsection 22.1(b), or within such other time period agreed to in writing by the Parties, any Party may refer the dispute to arbitration conducted by a sole arbitrator appointed under the British Columbia Commercial Arbitration Act. The Parties will agree on the arbitrator or, failing agreement, the arbitrator will be appointed in accordance with the rules of the British Columbia International Commercial Arbitration Centre and the Commercial Arbitration Act.
22.3
The cost of the arbitration referred to in Section 22.2 will be shared equally by the Parties and the arbitration will be governed by the laws of the Province of British Columbia.
22.4
The arbitration will be conducted at a location agreed upon by the Parties.
22.5
A dispute under this Agreement in respect of a matter within the sole discretion of a Party cannot, unless the other Party agrees, be referred to arbitration as set out in Section 22.2.
COMMUNICATIONS AND CONFIDENTIALITY 23.1
2904702.1
All public Communications relating to the Project will be undertaken in accordance with the Communications Plan and in accordance with the Approval Matrix
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Project Agreement 64th Avenue Rail Overpass at Highway 10 (RBRC) Project
(a)
23.2
The Communications Plan is to be in conformance with the “Public Communications Work Plan” developed in accordance with the RBRC Program and will be approved in accordance with the Approval Matrix.
23.3
The Township will ensure that any Project signs erected and maintained at the Project site are in accordance with the Communications Plan.
23.4
The Township will make public announcements concerning the Project only in accordance with the Communications Plan unless consent is first obtained from the Parties. The Township will, in all its publications, news releases, public communications and presentations regarding the Project, acknowledge contributions of all Parties as required by the Communications Plan. The Township will provide milestone information that may be used to promote the Project to other Parties for communications in conformance with the Communications Plan.
23.5
The Township will provide reasonable notice to the Project Steering Committee and the RBRC Program Manager of any proposed public announcement or ceremony related to the Project. This Section will not apply to routine public notices regarding construction-related road closures.
23.6
The Township will coordinate any public consultation required for the Project with respect to road design, transportation improvements and changes in land use.
23.7
All information, material and documentation (including the Produced Material) relating to the Project is confidential and no Party will disclose that information, material or documentation (including the Produced Material) without the prior consent of the other Parties, except where such disclosure is required for the purposes of the Project or by law.
23.8
All information, material and documentation (including the Produced Material) relating to the Project that is in the custody or control of any Party:
subject to British Columbia’s Provincial laws, is subject to the Freedom of Information and Protection of Privacy Act; and subject to federal laws is subject to the Access to Information Act.
(b) 24.
Roberts Bank Rail Corridor Program
INTERPRETATION
2904702.1
24.1
The Parties acknowledge and agree that the Approval Matrix in Schedule “A” to this Agreement provides a summary of the responsibilities and approvals required under this Agreement, however, in the case of a conflict between the Approval Matrix and the terms of this Agreement, the terms of this Agreement will govern.
24.2
This Agreement shall be governed in all respects, including validity, interpretation and effect, by the laws of the Province of British Columbia and the laws of Canada applicable therein, and in cases where federal and provincial laws conflict, the federal law shall prevail. The Parties shall attorn only and
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Project Agreement 64th Avenue Rail Overpass at Highway 10 (RBRC) Project
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exclusively to the jurisdiction of courts of the Province of British Columbia save and except in the circumstance where the Federal Court has exclusive jurisdiction.
25.
24.3
Where there is a reference to an enactment of the Province of British Columbia or of Canada in this Agreement, that reference will include a reference to any subsequent enactment of the Province of British Columbia or Canada, as the case may be, of like effect and, unless otherwise stated or the context otherwise requires, all statutes referred to in this Agreement are enactments of the Province of British Columbia.
24.4
If any terms, covenant, or condition contained in this Agreement or the application thereof to any person or circumstance will to any extent be invalid or unenforceable, the remainder of this Agreement or the application of that term, covenant or condition to persons or circumstances, other than those concerning which it is held invalid or unenforceable, will not be affected thereby and each term, covenant and condition of this Agreement will be separately valid and enforceable to the fullest extent permitted by law.
24.5
In this Agreement, “person” includes a corporation, firm or association and wherever the singular or masculine form is used in this Agreement it will be construed as the plural or feminine or neuter form, as the case may be, and vice versa where the context or Parties so require.
24.6
The captions and headings contained in this Agreement are for convenience only and do not define or limit the scope or intent of this Agreement.
24.7
No term, condition, covenant or other provision of this Agreement will be considered to have been waived by a Party unless such waiver is expressed in writing by the Party. The waiver by a Party of any breach by another Party of any term, condition, covenant or other provision of this Agreement will not be construed as or constitute a waiver of any further or other breach of the same or any other term, condition, covenant or other provision and the consent or approval of a Party to any act by the other Parties requiring the consent or approval of the Parties will not be considered to waive or render unnecessary such consents or approvals to any subsequent same or similar act by the other Parties.
GENERAL
2904702.1
25.1
The Parties will make all decisions required of them under this Agreement in an expeditious and timely manner.
25.2
Each of the Parties will at all times, from time to time and upon reasonable request, do, execute and deliver all further assurances, acts and documents for the purpose of evidencing and giving full force and effect to the covenants, agreements and provisions in this Agreement.
25.3
Time will be of the essence under this Agreement.
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25.4
Nothing contained or implied herein will prejudice or affect the rights and powers of the Township or the Township’s approving officer in the exercise of its or his functions under any public and private statutes, bylaws, orders, and regulations, all of which may be fully and effectively exercised as if this Agreement had not been executed and delivered by the Parties.
25.5
The warranties, representations and agreements contained in this Agreement will not be subject to merger but will survive the completion of the Project.
25.6
All notices, demands, claims or other communications required or permitted hereunder will be in writing and may be delivered prepaid, sent by facsimile or sent by prepaid first class mail, except that delivery of material documents, plans and money to be delivered to a Party in accordance with the terms of this Agreement will be effected by hand or courier to the address specified below, such deliveries to be effective only on actual receipt.
Any notice will be deemed to have been given or received at the time of delivery to the address of the recipient as set out below. Any notice delivered by facsimile will be deemed to be delivered on the next business day following the date of transmission thereof. Any notice mailed as aforesaid will be deemed to have been given and received on the fourth business day following the date of its mailing. Any notice will be addressed as follows: To:
TransLink 1600 – 4720 Kingsway Burnaby, B.C., V5H 4N2 Attention: Manager, Roads and Bridges Facsimile No.: (604) 453-4600
To:
the Township of Langley 4914 – 221st Street Langley, B.C. V3A 3Z8 Attention: Director of Engineering Facsimile No.: (604) ___-____
To:
Vancouver Fraser Port Authority 100 The Pointe 999 Canada Place Vancouver, B.C. V6C 3T4 Attention: ___________________ Facsimile No.: (604) ___-____
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Project Agreement 64th Avenue Rail Overpass at Highway 10 (RBRC) Project To:
Roberts Bank Rail Corridor Program
BC Ministry of Transportation and Infrastructure 5C – 940 Blanshard Street PO Box 9850 Stn Prov Govt Victoria, B.C. V8W 9T5 Attention: Senior Project Manager, Pacific Gateway Branch Facsimile No.: (250) 387-5812
provided, however, that a Party may, by notice in writing to the other Parties, specify another address for service of notices under this Agreement and, where another address is specified by a Party, notice must be delivered to that address in accordance with this Section. 25.7
Wherever this Agreement provides that an action may be taken, a consent or approval must be obtained or a determination must be made, then such Party will act reasonably in taking such action, deciding whether to provide such consent or approval or making such determination; but where this Agreement states that a Party has sole discretion to take an action, provide a consent or approval or make a determination, there will be no requirement to show reasonableness or to act reasonably in taking that action, providing that consent or approval or making that determination.
25.8
If, due to a strike, lockout, labour dispute, act of God, inability to obtain labour or materials, law, ordinance, rule, regulation or order of a competent governmental authority, enemy or hostile action, civil commotion, fire or other casualty or any condition or a cause beyond the Township’s reasonable control, the Township is delayed in performing any of its obligations under this Agreement, the time for the performance of that obligation will be extended by a period of time equal to the period of time of the delay so long as the Township:
(a)
gives notice to the Parties of the delay setting forth the nature of the delay and an estimated time frame for the performance of the Township obligation; and
(b)
diligently attempts to remove the delay if it is within its power to do so; and all costs associated with such delay will be Project Costs. 25.9
The Parties agree that nothing in this Agreement constitutes any of them as the agent, joint venturer or partner of the other Parties or gives any of them any authority or power to bind the other Parties in any way and that all obligations imposed under this Agreement shall be several and not joint.
25.10 This Agreement is binding upon and enures to the benefit of the Parties and their successors and permitted assigns. 25.11 No remedy conferred upon or reserved to either Party is exclusive of any other remedy in this Agreement or provided by law, but such remedy will be cumulative and will be in addition to any other remedy in this Agreement or now or hereafter existing at law, in equity or by statute.
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Roberts Bank Rail Corridor Program
25.12 This Agreement may be executed in counterparts and when the counterparts have been executed by the Parties, each originally executed counterpart, whether a facsimile, photocopy or original, will be effective as if one original copy had been executed by the Parties to this Agreement. 25.13 Each Party confirms that it has not, nor has any person on its behalf, given, promised or offered to any official or employee of Port Metro Vancouver or Her Majesty the Queen in Right of Canada for or with a view to obtaining this Agreement any bribe, gift or other inducement and that it has not nor has any person on its behalf, employed any person to solicit or secure this Agreement for a commission, percentage, brokerage or contingent fee. IN WITNESS WHEREOF the Parties hereto have executed this Agreement the day and year first above written. SOUTH COAST BRITISH COLUMBIA TRANSPORTATION AUTHORITY
_______________________________________________ (Authorized Signatory) _______________________________________________ Name, Title (Please print)
MINISTRY OF TRANSPORTATION AND INFRASTRUCTURE
_______________________________________________ (Authorized Signatory) _______________________________________________ Name, Title (Please print)
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Project Agreement 64th Avenue Rail Overpass at Highway 10 (RBRC) Project
Roberts Bank Rail Corridor Program
VANCOUVER FRASER PORT AUTHORITY
_______________________________________________ (Authorized Signatory) _______________________________________________ Name, Title (Please print)
_________________________________ ______________ (Authorized Signatory) _______________________________________________ Name, Title (Please print)
CORPORATION OF THE TOWNSHIP OF LANGLEY
_______________________________________________ (Authorized Signatory) _______________________________________________ Name, Title (Please print)
_________________________________ ______________ (Authorized Signatory) _______________________________________________ Name, Title (Please print)
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Roberts Bank Rail Corridor Program
Schedule “A” Approval Matrix
1
Document or Event
Prepared by
Action Required
Action By
Any change to the Project Manager or Owner’s Engineer (including, criteria, selection and assignment)
Township
Review for general compliance with RBRC Program. Approve
Project Steering Committee
2
Project Implementation Plan (as described in Subsection 6.2)
4
DB RFP Procurement Plan (as described in Subsection 6.1)
Evaluation and Selection
Township
Township
Township, BC MoT
Review for general compliance with RBRC Program. Approve Review for general compliance with RBRC Program. Approve Review for general compliance with RBRC Program. Approve
Award/Contract
Township
Approve
5
Acceptance of Technical Compliance at all phases and including all exceptions to design standards
Owner’s Engineer
Accept
6
Any Material Change to Project Parameters (scope, schedule, budget)
Township
Review for general compliance with RBRC Program. Approve
7
All Other contracts (after execution of this agreement)
2904702.1
Township
Owner Partner Representatives Project Steering Committee Parties Project Steering Committee Owner Partner Representatives Project Steering Committee Owner Partner Representatives Owner Partner Representatives Owner Partner Representatives, City of Langley Project Steering Committee Owner Partner Representatives
none required.
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Project Agreement 64th Avenue Rail Overpass at Highway 10 (RBRC) Project Document or Event
8
Traffic Management Plans
10
Communication Plan & Activities
11
Monthly Project Reporting
12
Monthly Invoices for Payment (signed and vetted for accuracy by Project Manager and RBRC Program Manager)
13
Substantial Completion
14
Final Completion (Project Acceptance)
2904702.1
Roberts Bank Rail Corridor Program
Prepared by
Action Required
Action By
Contractor(in cooperation with MoT District Transportation Manager and Township) Township, TransLink
Approve
BC MoT, Township
Approve
Parties
Township, RBRC Program Manager
Review for general compliance with RBRC Program. Accept
Project Steering Committee
Township, RBRC Program Manager Township
Accept subject to conformance to agreed to budget, scope and Project Implementation Plan Acceptance of Design and Construction Receive for close-out
Parties
Township
Parties
Owner Partner Representatives Parties
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Project Agreement 64th Avenue Rail Overpass at Highway 10 (RBRC) Project
Roberts Bank Rail Corridor Program
Schedule “B” Conceptual Plan [To be inserted by the Township]
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Project Agreement 64th Avenue Rail Overpass at Highway 10 (RBRC) Project
Roberts Bank Rail Corridor Program
Schedule “C” Project Costs, Contribution Amounts and Project Budget Project Costs Project Costs will mean all direct costs properly and reasonably incurred and paid solely and specifically in relation to the Project including capital costs that would usually be capitalized in the financial records of the Township. The following are examples of Project Costs that will be eligible for reimbursement under this Agreement, provided that they fall within the definition set out in the immediately preceding paragraph: •
prior to execution of agreements: specified third Party costs related to studies, tests, reports, consulting work and other actual costs incurred by the Parties, other than internal work, for work directly related to development, planning, design and land acquisition necessary for the Project (as agreed to by the Parties in advance)including work done by Delcan as Owners Engineer, work by Pacific Land Group regarding the ALC application, Greta Soo for land acquisition, Bramcon as process advisor, and Arcas for the archaeological works;
•
costs for services related to project delivery by staff and consultants (such as Project Manager, Owner’s Engineer, process advisor, etc.) as agreed to by the Parties in advance;
•
after execution of agreements: capital costs actually and reasonably incurred for planning, development, design, engineering, environmental work, land acquisition, construction commissioning and management of the Project including: o costs incurred under Design and Construction contracts; o Actual costs of applications, permits/licences and approvals required for the Project (excluding those required/charged by RBRC ProgramPartners) including:
environmental protection and compensation works required by government authorities and as agreed to in writing by the Parties;
archaeological protection and compensation works required by government authorities and as agreed to in writing by the Parties;
permitting fees required for the Project;
relocation of existing utilities if required to facilitate the Project; and
acquiring a licence to use the Produced Material, in accordance with Section 6.4(f);
o actual costs(including legal costs) incurred for acquisition of land required for the Project (including by expropriation if necessary) as identified and agreed to by the Parties (exclusive of land owned by a Party which is utilized for the Project or that not agreed to by the Parties); o surveying;
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o traffic management; o studies and testing; o basic landscaping (sod/seeding and gravel only); o restoration of existing features and infrastructure disrupted by construction of the project (basic landscaping, driveway pavement, curbs); o consultant/professional fees for engineering, environmental design, construction, monitoring, inspection, testing and contract administration; o project management costs and disbursement in relation to the Project; and o actual costs of communications and community relations reasonably incurred for the Project (including Project signs, events and media releases); •
legal costs incurred by the Parties for preparing and reviewing contracts or agreements for the Project, except for legal costs incurred by the Parties for preparing and reviewing this Agreement;
•
dispute resolution costs – actual costs incurred by the Parties to enforce the contract or to resolve claims arising from the Project; and
•
any other cost as specifically agreed to in writing by the Parties.
Notwithstanding the above, the following are examples of costs that will not be eligible for reimbursement under this Agreement: •
financing costs / interest on any Party’s contribution;
•
public art, enhanced landscaping and other non-standard forms of “beautification”, landscape design;
•
utility upgrading or new construction unless required to facilitate the Project;
•
costs incurred after completion of construction (including operation, maintenance, monitoring or rehabilitation of assets following completion of construction);
•
G.S.T.
•
actual costs of applications, permits/licences and approvals required for the Project by participating RBRC partners;
•
works undertaken concurrently by one or more of the Parties that are not part of the Agreement or Project Scope;
•
costs in excess of the stated maximum contributions unless agreed to and confirmed in writing;
•
costs of previous studies/ work not specified and agreed to by the Parties as a Project Cost;
•
costs in which the Township will receive full recovery from other agencies that are not RBRC Program Partners..
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Project Agreement 64th Avenue Rail Overpass at Highway 10 (RBRC) Project
Roberts Bank Rail Corridor Program
Project Budget The Project Budget as of January 2009 is based on the Conceptual Design set out in Schedule “B” and as more particularly described in the Project Scope described in Schedule “E” is summarized below. Description Project Management Project Development Engineering Property Acquisition Construction – Overpass Structure Construction – All other Management Reserve Contingency Total (Year 2008 dollars)
Estimated Cost (millions) $1,000,000 $_ 300,000 __ $_ 5,000,000 __ $1,000,000 _ $11,800,000__ $ 25,700,000 __ $_ 0 __ $ 6,200,000 ___ $51,000,000.00
Funding Contributions and Payment of Project Costs The agreed funding contributions for the Project are: Agency
Funding Contribution
TransLink
$24,000,000
BC MoT
$12,500,000
Township
$9,300,000
Transport Canada*
$3,100,000
Port Metro Vancouver
$2,100,000
Total (200__ dollars)
$51,000,000
* Note: Transport Canada will be advancing their funds through a separate contribution agreement between Transport Canada and the Township.
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Schedule “D” Estimated Milestone Dates
Milestone
Date
Project Agreement
March 2009
Conceptual Design
September 2008
Issuance of RFP
April 2009
Award of Design-Build Contract
September 2009
Commencement of Construction
November 2009
Substantial Completion
May2011
Total Completion
Fall 2011
NOTE: Total Completion must not extend beyond March 2014 (termination of federal funding.)
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Schedule “E” Project Scope The Township will implement the Project including the Design and Construction of the Project, the scope of which includes the following: • new four-lane overpass, northeast of the existing Mufford Crescent crossing over the railroad and Glover Road (an approximate overpass structure of 440 m with a superstructure span of 220 m with shoulders on each side); • new four-lane west approach road from Mufford Crescent (northwest of 62nd Avenue) to the overpass along with two cul-de-sacs closing Mufford Crescent between existing at-grade crossings of RBRC and the new approach road (including shoulders); • closing of the access to Highway 10 from Mufford Crescent; • new four-lane east approach road to connect the overpass with 216th Street at 64th Avenue (including shoulders); • new bridge over North Creek; • intersection improvements at 64th Avenue, west of 216th Street including additional east and westbound left turn lanes from the new road to 64th Avenue and rebuild of 64th Avenue at the intersection; • intersection improvements at 64th Avenue and 216th Street including east and westbound left turn lanes from 64th Avenue to 216th Street; • two lane access road to farms approximately 650 m in length from Mufford Crescent, under the overpass and along the railway; • utility adjustments or relocations; • land acquisition. The Township will implement the Project in accordance with the following standards and specifications: Provincial Engineering Standards and Specifications Provincial infrastructure (overpass and highway connections) to be designed and constructed to BC MoT design and engineering standards and specifications as approved by BC MoT South Coast Region. Township Engineering Standards and Specifications Municipal infrastructure to be designed and constructed to Township design and engineering standards and specifications as approved by Township.
2904702.1
Page 1
ATTACHMENT D OPEN HOUSE QUESTIIONNAIRE SUMMARY 1. Has this open house been helpful to you? Yes 169 82%
No 17 9%
No Answer 17 9%
Total 203 100%
2. After reviewing the presentation materials, do you think an overpass is required? Possible responses No. of Respondents Results
Yes
No
No Answer
Total
144 72%
44 22%
15 6%
199 100%
3. If you said yes to question 2, which option best meets the needs of the Township of Langley? Design Options
Preliminary Design
North Route
South Route
“Option J”
Limit Hwy10/ Mufford to right in/out
Other
No Answer
Total
No. of Responses
39
9
9
78
11
22
27
195
Results
20%
5%
5%
40%
5%
11%
14%
100%
4. Which type of traffic control do you prefer at 216 Street? Roundabout 39 22%
Traffic Signal 71 40%
No Preference 26 15%
No Answer 40 23%
Total 176 100%
5. Please state your preference for a community multi-use pathway: Surface
Usage:
Width
Gravel 52 44%
Asphalt 67 56%
Mixed/Ped/Bicycles/Equestrian 97 87% 2 metres 37 22%
3 metres 47 28%
4 metres 21 13%
Total 119 100%
Pedestrian Only 14 13% No Answer 54 32%
Total 111 100% Opposed 8 5%
Total 167 100%
6. Are you in favour of streetlights through the rural portion of the project? Yes 71 36%
No 79 40%
No Answer 49 24%
Total 199 100%
ATTACHMENT E
PRESENTED: FROM: SUBJECT:
MARCH 2, 2009 - REGULAR MEETING REPORT: ENGINEERING DIVISION FILE: RBRC – 64 AVENUE RAIL OVERPASS AT HIGHWAY 10 PROJECT
09-26 5330-23-03
RECOMMENDATIONS:
That Council receive the RBRC – 64 Avenue Rail Overpass at Highway 10 Project (“the Project”) report; and That Council endorse the preliminary design; and further That Council authorize staff to enter into agreements with the Government of Canada, Contribution Agreement (“GOC Agreement”) and the Project Agreement, Roberts Bank Rail Corridor Program (“RBRC Agreement”) on behalf of the Township of Langley, subject to such modifications as may be deemed necessary by legal counsel. EXECUTIVE SUMMARY:
Public Consultation Process The Project has recently completed a public consultation process which involved three separate components: 1. Public Open Houses were held on January 31 and February 2 with 389 people attending. Based on the questionnaire the general comments are as follows: • The attendees were generally supportive of a road/rail overpass in the approximate location of the intersection at Highway 10 / 64 Avenue / Mufford; • The attendees were generally supportive of “Option J” however this option has technical and financial challenges and was found by the other Project partners to be inconsistent with the original project principles; and, • Of all the remaining options the Open House attendees found the preliminary design to be the next most acceptable alignment option. 2. Special Meeting of Township Council for the purpose of Public Input as to Mufford/64th Avenue Road / Rail Overpass. A total of 41 people spoke at the Public Input Meeting. From that 38 were opposed and 3 were in favour of the preliminary design. The meeting minutes are attached to this report. 3. Community Survey An independent research company, named Synovate, which were previously retained by the Township for Community Surveys, conducted a telephone survey from February 4 to 7, 2009 of residents living within the Township of Langley. From the 401 respondents the Community Survey (which, from the sample size of 401 has a minimum margin of error of +/- 5%, 19 times out of 20) provided the following results:
RBRC – 64 AVENUE RAIL OVERPASS AT HIGHWAY 10 PROJECT
Page 2 . . . • • •
Two-thirds of residents are aware of the proposal to build an overpass project in the Township of Langley; Support for the overpass project outweighs the opposition by 49% to 11% with 38% having no opinion either way; and, After reflecting on some of the positives and negatives of the overpass project support rose to 69% leaving 15% still opposed and 16% undecided.
As a result of the feedback heard from the community members at the Open Houses the preliminary design is being enhanced to account for several of the salient issues that were brought forward, including: 1. Accommodate the capacity issues at the intersection at Highway 10/216/Crush Crescent and as traffic volumes demand at the intersections of 64th and 224th, 232nd and 232nd Street and Springbrook Road; 2. Accommodate the safety issues (such as pedestrian safety) between 64 and intersection at Highway 10/216/Crush Crescent; 3. Accommodate the safety issues along 64 Avenue east of 216 (e.g., construct wider shoulders, installing traffic calming measures, enforcement); 4. Ensure farms have full access to the road network; 5. Ensure the viability of agriculture and farming operations; and, 6. Accommodate the heritage aspects and the archaeological significance of the Milner area. Funding Agreements The $51M Project is funded through two agreements, one with the Government of Canada, valued at $3.1M and the second with the Roberts Bank Railway Corridor Program, valued at $38.6M. Both agreements have been thoroughly reviewed by staff and the Township’s lawyers. PURPOSE:
To provide Council with a briefing on the outcome of the recent public questionnaires and community survey and to seek authority to enter into the Project funding agreements. BACKGROUND/HISTORY:
Public Open Houses: Two Open Houses were held by the Township in order to present the latest project preliminary design and have available project staff to answer questions, issues and concerns. The Open Houses were held on Saturday, January 31, 2009, 10am to 2pm at the Milner Community Hall and, Monday, February 2, 2009, 5:30pm to 8:30pm at the Township of Langley Civic Facility. In attendance with Township staff at the Open Houses were representatives from Ministry of Transportation and Infrastructure, TransLink, Roberts Bank Railway Corridor Program, Port Metro Vancouver, Environmental, Agricultural and Planning consultants In total 389 members of the public attended the Open Houses. A questionnaire was provided to each of the attendees and the results have been tabulated and summarized in the following tables:
RBRC – 64 AVENUE RAIL OVERPASS AT HIGHWAY 10 PROJECT
Page 3 . . . After reviewing the presentation materials, do you think an overpass is required? Possible responses No. of Respondents Results
Yes
No
No Answer
Total
144 72%
44 22%
15 6%
199 100%
If you said yes to question 2, which option best meets the needs of the Township of Langley? Design Options
Preliminary Design
North Route
South Route
“Option J”
Limit Hwy10/ Mufford to right in/out
Other
No Answer
Total
No. of Responses
39
9
9
78
11
22
27
195
Results
20%
5%
5%
40%
5%
11%
14%
100%
Public Input Meeting: A Public Meeting was held on Monday, February 9, 2009 from 7pm to 11:05 PM in a format similar to a Public Hearing. Staff provided a brief presentation that generally responded to questions that were raised at the Open Houses. Subsequently, 41 delegates approached Council and spoke to the Project. Stated preference No. of Speakers
In favour
Opposed
No Answer
Total
3
38
0
41
Summary of findings from Public Consultation Based on the public consultation process the general results are as follows: • • • • • •
Two-thirds of residents are aware of the proposal to build an overpass project in the Township of Langley; The public is generally supportive of a road/rail overpass in the approximate location of the intersection at Highway 10/64 Avenue/Mufford; Support for the overpass project outweighs the opposition by 49% to 11% with 38% having no opinion either way; After reflecting on some of the positives and negatives of the overpass project support rose to 69% leaving 15% still opposed and 16% undecided; The attendees were generally supportive of “Option J” however this option has technical and financial challenges and was found by the other Project partners to be inconsistent with the original project principles; and, Of all the remaining options the Open House attendees found the preliminary design to be the next most acceptable alignment option.
Based on the comments received from the Open Houses the Project learned from the residents of their issues and concerns. As such, the Project is working to enhance the preliminary design to reflect the key issues, such as:
RBRC – 64 AVENUE RAIL OVERPASS AT HIGHWAY 10 PROJECT
Page 4 . . . 1. Accommodate the capacity issues at the intersection at Highway 10/216/Crush Crescent and as traffic volumes demand at the intersections of 64th and 224th, 232nd and 232nd Street and Springbrook Road; 2. Accommodate the safety issues (such as pedestrian safety) between 64 and intersection at Highway 10/216/Crush Crescent; 3. Accommodate the safety issues along 64 Avenue east of 216 (e.g., construct wider shoulders, installing traffic calming measures, enforcement); 4. Ensure farms have full access to the road network; 5. Ensure the viability of agriculture and farming operations; and, 6. Accommodate the heritage aspects and the archaeological significance of the Milner area. As mentioned previously a large number of attendees were supportive of the “Option J”, however this Option is not recommended for the following reasons: • Fails to meet the transportation objectives (not an integrated solution, lacks network connectivity and redundancy, lacks added capacity); • Unacceptable to the Funding Partners; • Impact to the environmentally sensitive area; and, • Unacceptable to the City of Langley, as stated in Mayor Fassbender’s letter, dated February 3, 2009. Funding Agreements: The $51 million Project is funded through two Agreements, one with the Government of Canada, through Transport Canada, for $3.1 million, and the other through a partnership agreement with the Project funding partners, for the additional $38.6 million. The Township’s share is $9.3 million. The Agreements are the result of a thorough analysis by the Township and its Funding Partners of the technical and financial aspects of several alignment options which resulted in consensus on a preferred alignment option which is represented by the preliminary design. The table below indicates the contribution by individual agency. Agency TransLink BC MoT Township of Langley Transport Canada Port Metro Vancouver Total (2008 dollars)
Funding Contribution $24,300,000 $12,500,000 $ 9,300,000 $ 3,100,000 $ 1,800,000 $51,000,000
Government of Canada, Contribution Agreement (“GOC Agreement”) The GOC Agreement is a general purpose, standard template agreement that is used for infrastructure projects across Canada where GOC contributes funds to another level of government agency. The contribution is at $3.1 million with no flexibility for change and no exception. The Township, under the GOC Agreement, is obligated to deliver the Project to completion based on the subject terms and conditions. Contributions are available based on actual costs and on a quarterly basis up to the $3.1 million limit.
RBRC – 64 AVENUE RAIL OVERPASS AT HIGHWAY 10 PROJECT
Page 5 . . . Eligible costs include all aspects of Project delivery including project management, professional services, engineering, design, materials, construction and approvals. The most significant exception is the cost of property acquisition that is covered under the partnership agreement. The Township’s ability to invoice under the GOC Agreement is conditional on the Project receiving the Canadian Environmental Assessment Authority approval, which we have been advised is imminent. Project Agreement, Roberts Bank Rail Corridor Program (“RBRC Agreement”) The RBRC Agreement is a partnership agreement between the following agencies: Ministry of Transportation and Infrastructure; TransLink; Port Metro Vancouver; and, Township of Langley In the RBRC Agreement the Township, as the Project delivery agent, is responsible to the project partners to delivery the Project in manner that complies with the stated terms, conditions and requirements. In kind, the partners are responsible to proportionately share on the risks and liabilities associated with cost, schedule, scope changes, regulatory approvals and any other unforeseen items associated with the Project. This is a significant shift from the GOC Contribution Agreement where cost risk is capped. The Township will invoice TransLink on a quarterly basis and subsequently TransLink receives payment from the other agencies through a separate program agreement. Key sections of the RBRC Agreement include the following: • • • • • • •
The Project is to be delivered as a design-build project; The procurement process is substantially the same as the Township’s usual procurement process (Request for Qualification, Request for Proposal, etc.); Project costs are reimbursed based on actual costs with supporting documentation Eligible costs include all aspects of Project delivery, including project development, project management, professional services, engineering, design, construction, materials, property; Cost for changes to the Project scope fall to the party responsible for the change request, unless otherwise agreed to; Project cost overruns are equally shared between the Province and the Township; All Project communications, including public events, must be vetted and approved by the RBRC Program;
DISCUSSION/ANALYSIS:
The Township has undertaken the following measures to ensure both Agreements are acceptable to the Township: 1. Project staff have fully vetted the Agreements to ensure that the obligations under these Agreements are acceptable and achievable; 2. Further, Project staff have ensured technical accuracy and the Agreements conform with best business practices; 3. Township solicitor (Bull Houser Tupper) have reviewed and edited the Agreements, where appropriate; and 4. Agreements have been reviewed to ensure that they are consistent and compliant with the Community Charter.
RBRC – 64 AVENUE RAIL OVERPASS AT HIGHWAY 10 PROJECT
Page 6 . . .
Respectfully submitted,
Colin Wright GENERAL MANAGER for ENGINEERING DIVISION ATTACHMENT A ATTACHMENT B ATTACHMENT C ATTACHMENT D ATTACHMENT E
64 AVENUE ROAD/RAIL OVERPASS SURVEY – FEB. 16, 2009 GOVERNMENT OF CANADA, CONTRIBUTION AGREEMENT (“GOC AGREEMENT”) PROJECT AGREEMENT, ROBERTS BANK RAIL CORRIDOR PROGRAM (“RBRC AGREEMENT”) OPEN HOUSE QUESTIONNAIRE SUMMARY MEETING MINUTES OF THE PUBLIC INPUT MEETING, DATED FEBRURARY 9, 2009
ATTACHMENT A
64th Avenue Road/Rail Overpass Survey • Prepared for: Township of Langley • Prepared by: Julie Winram • Date: February 16, 2009
© Synovate 2009
1
Executive Summary
Executive Summary Overall Awareness and Opinion • • •
Two-thirds of residents are aware of the proposal to build an overpass in the Township of Langley. Support for the proposed overpass outweighs opposition by a margin of 49% to 11%, with the remaining 38% not having an opinion either way. After hearing reasons for and against the overpass, support solidifies to 69%, leaving 15% still opposed and 16% undecided.
Reasons For and Against the Overpass • • •
Alleviating congestion is the overwhelming reason why residents support building the overpass. The main grounds for opposing the overpass are that it is too large and would use too much farmland. Many of those initially undecided or against the planned overpass do acknowledge that it will reduce congestion and improve safety. Accordingly, when asked again for their opinion, 54% of those undecided became supportive as did 9% of those who were opposed.
Importance Of The Decision • •
Overall, one third of residents consider the overpass decision to be extremely or very important to them. Of those who consider the decision to be Important, more than 4 times as many support than reject it, both at the outset as well as after considering the reasons for and against it.
© Synovate 2009
3
Objectives & Methodology
Objectives and Methodology •
•
Synovate, an independent professional market research company, was commissioned by the Township of Langley on behalf of the project to conduct a poll on a proposed overpass. Questions were developed independently by Synovate staff and project partner input was sought for technical accuracy.
•
Township heads of households were asked about a proposal to build a new overpass at 64th Avenue/Mufford and Highway 10 to allow car traffic to be routed over the railway traffic.
•
The poll covered the following: - Overall awareness of the overpass - Initial opinion of the overpass - Positive and negative arguments about the overpass - Informed opinion of the overpass
© Synovate 2009
•
A total of 401 telephone interviews were conducted from February 4th to 7th, 2009.
•
Quotas were set by gender and age. Further, the sample was weighted by age to match the actual age distribution of household maintainers in the Township of Langley.
•
The maximum margin of error on the sample of 401 is +/-5%, 19 times out of 20. The margins on smaller subsamples are wider.
5
Findings
Overall Awareness Q1b. If yes, where did you hear about the plan to build the overpass?
Q1. Are you aware of the proposal to build a new road and overpass at 64th Avenue/Mufford and Highway 10 to allow car traffic to be routed over the railway traffic? Community Newspaper
79
Word of Mouth/Family No 36%
17
Daily Newspaper
7
TV
Yes 64%
4
Radio
2
Open House
1
Internet
1
Other
1
Don't Know/Refused
3 %
(n=401)
•
•
Overall, 64% of residents are aware of the proposal to build and new road and overpass at 64th Avenue/Mufford and Highway 10. Awareness rises with age and reaches 2/3 of those 35+ compared to 1/2 of those 18-34.
© Synovate 2009
(n=260)
•
Almost all of those aware of the proposed overpass heard about it from community newspapers. Less common sources include word of mouth, daily newspapers and TV.
7
Initial Overall Opinion Q2. Overall, do you support or oppose the plan to build the overpass or do you not have an opinion either way? Do you strongly or somewhat [support/oppose] it? Perceived Importance of Overpass Decision Strongly Support 29%
No Opinion 38%
Somewhat Support 20% Depends 2%
Strongly Oppose Somewhat 7% Oppose 4%
Extremely/Very Important
Somewhat Important
Not that/Not at all Important
Base
133 %
176 %
90 %
Strongly Support
56
20
9
Somewhat Support
11
30
14
Somewhat Oppose
2
5
4
Strongly Oppose
12
2
8
No Opinion
17
40
62
Depends
3
2
3
Don’t Know
-
2
-
(n=401)
•
By more than four to one margin, residents support the proposed overpass.
•
49% say they strongly or somewhat support the planned overpass, while 11% express opposition, including 7% who are strongly opposed. A large minority, 38%, have no opinion either way.
© Synovate 2009
•
Of those who consider the overpass decision extremely or very important, support outweighs opposition 67% to 14%. Furthermore, strong support stands at 56% among this group.
8
Reasons For Initial Overall Opinion Q3. Why do you [support/oppose] it? What does it depend on? Reasons For Opposing
Reasons For Supporting
It is a congested area (gen) The trains cause congestion/waits
30
24
Should be built elsewhere Already enough overpasses
18
Costs too much money
17
10
Improve safety Provide emergency access Improve access to Glover Rd Population is growing
32
Will take up farmland
47
9
13
Will be an eyesore 9 7
Will not reduce congestion
7
Design should be changed
6
% (Major Mentions) (n=197)
•
The overwhelming reason for supporting the proposed overpass is that it will alleviate congestion (47% citing congestion generally and 30% specifically citing trains as the cause of this waits).
•
Another one in ten each mention that the overpass would improve safety, improve emergency access and improve access to Glover Road generally.
% (Major Mentions) (n=43*)
•
Residents against the overpass object on the grounds that it will take up farmland, should be built elsewhere, that there are enough overpasses already and that it is too expensive.
*Caution small base size © Synovate 2009
9
Reasons For the Proposed Overpass Q4. Please tell me whether you agree or disagree with the following reasons for or against the overpass. Positive Reasons The over pass will improve safety by separating rail traffic from car traffic and enhance emergency service response times The overpass will improve traffic flow and reduce the congestion and idling caused by cars waiting for railcars to pass by The overpass will assist to alleviate the congestion from the growth of rail and road traffic in the future
90
7
4
88
8
4
82
10
8
% (n=401)
Agree
•
More than eight in ten residents agree with each of the three reasons, namely, that it will alleviate congestion, improve traffic flow in the future, and improve safety.
© Synovate 2009
•
Disagree
Don't Know
The reasons in favour of the overpass also attract majority agreement from those who do not approve of it, at least when they were first asked for their opinion.
10
Reasons Against the Proposed Overpass Q4. Please tell me whether you agree or disagree with the following reasons for or against the overpass. Negative Reasons
The overpass will cause more traffic to use the local rural roads
32
The overpass is too large and uses too much farmland
31
The overpass will result in more rail traffic and noise pollution and change the character of Langley
53
15
48
29
21
58
13
% (n=401)
Agree
•
Three in ten residents agree that the overpass will cause more traffic to rural roads, use too much farmland, and create more rail traffic.
•
Residents that oppose the overpass are the most inclined to believe that the overpass is too large and uses too much farmland.
© Synovate 2009
Disagree
Don't Know
•
Those who live in the vicinity of the overpass (V2Y) express the most concern over the overpass causing more traffic to use the local rural roads. Still, they concur more with all of the reasons in favour of the overpass than with any of the objections.
•
Residents that initially were not sure how they felt about the overpass expressed the greatest concern with respect to the overpass using up too much farmland. 11
Informed Overall Opinion Q5. Now that you’ve heard some of the reasons for and against the overpass, would you prefer to see the project go ahead or be cancelled? Don't Know 16%
Initial Opinion Support
Oppose
No Opinion
197
43*
158
%
%
%
Go Ahead
94
9
54
Cancelled
2
76
14
Don’t Know
3
15
32
Base Cancelled 15%
Go Ahead 69%
(n=401)
•
After hearing reasons for and against the overpass, the margin of support to opposition stood at 69% to 15%.
•
16% remained undecided.
•
The majority of all demographic groups and all regions of the Township support the proposed overpass, including those who live in the area (69% of those living in V2Y are supportive).
•
54% of those residents initially undecided on the proposed overpass became supportive, while 14% became opposed and 32% remained unsure.
•
Almost all of those initially supportive of the overpass remained so (94%), and 76% of those initially opposed remained opposed.
*Caution small base size © Synovate 2009
12
Overall Importance of the Overpass Decision Q6. Overall, how important is the decision on the overpass to you?
Extremely Important
10%
6%
12%
8%
•
Overall, 1/3 of residents believe the decision on the overpass is extremely or very important.
•
Among those in the vicinity of the overpass (V2Y), 37% consider the decision to be extremely or very important.
•
Older residents view the overpass decision as more important than do younger residents.
19%
Very Important
23%
20%
29%
Somewhat Important
Not that Important
Not at all Important
Don't Know
44%
56%
47%
38%
15%
*Caution small base size © Synovate 2009
16%
11%
6%
8%
18% 3%
9% 1%
Total
18-34
35-54
55+
(n=401)
(n=36)*
(n=202)
(n=162)
Age 13
Demographic Profile Total Base
401 %
Gender Male
47
Female
53
Age 18-34
13
35-54
48
55+
38
Region V1M
32
V2Y
15
V2Z
18
V3A
14
V4W
21
© Synovate 2009
14
Demographic Profile Total Base
401 %
Main Transportation Car/Motor Vehicle
98
Transit
1
Walking
1
Home Ownership Own
90
Rent
8
Other
1
Don’t Know/Refused
1
© Synovate 2009
15
Our curiosity is yours. Thank you.
© Synovate 2009
16
ATTACHMENT B Agreement for the 64th Avenue Extension from 204 St. to 216 St, Township of Langley 2008/2009-2011/2012
ASIA PACIFIC GATEWAY CORRIDOR INITIATIVE TRANSPORTATION INFRASTRUCTURE FUND CONTRIBUTION AGREEMENT FOR 64TH AVENUE EXTENSION FROM 204 ST. TO 216 ST, 2008/2009-2011/2012
RDIMS No. 2370671 version 5 CANADA – TOWNSHIP OF LANGLEY APGCITIF Page 1 of 44
Agreement for 64th Avenue Extension from 204 St. to 216 St, Township of Langley 2008/2009-2011/2012
TABLE OF CONTENTS 1.
Interpretation ........................................................................................................................ 6 1.1 Definitions ....................................................................................................................... 6 1.2 Entire Agreement ............................................................................................................ 8 1.3 Schedules ....................................................................................................................... 8 1.4 Counterpart Signature..................................................................................................... 8 1.5 Accounting Principles and Auditing Standards ............................................................... 8 1.6 Severability...................................................................................................................... 9 1.7 Amendments ................................................................................................................... 9 1.8 Survival ........................................................................................................................... 9 1.9 Computation of Time....................................................................................................... 9 2. Term of Agreement .............................................................................................................. 9 3. Purpose ................................................................................................................................. 9 3.1 Purpose of this Agreement.............................................................................................. 9 3.2 Project Overview ............................................................................................................. 9 4. Project Financing ............................................................................................................... 10 4.1 Contribution by Canada ................................................................................................ 10 4.2 Commitments by the Recipient ..................................................................................... 10 5. Recipient Obligations ........................................................................................................ 11 6. Compliance with Environmental Legislation................................................................... 12 6.1 Conditional Commitment............................................................................................... 12 7. Aboriginal Consultation..................................................................................................... 13 7.1 Conditional Commitment............................................................................................... 13 7.2 Aboriginal consultation information ............................................................................... 13 8. Management Committee.................................................................................................... 14 8.1 Establishment ............................................................................................................... 14 8.2 Co-chairs....................................................................................................................... 14 8.3 Meetings ....................................................................................................................... 14 8.4 Rules and Procedures .................................................................................................. 14 8.5 Recommendations and Decisions................................................................................. 14 8.6 Mandate ........................................................................................................................ 14 8.7 Changes During the Term of the Agreement ................................................................ 15 8.8 RBRC Partners Committee ........................................................................................... 16 9. Contract Procedures.......................................................................................................... 16 9.1 Awarding of Contracts................................................................................................... 16 9.2 Contract Provisions ....................................................................................................... 16 10. Claims and Payments ........................................................................................................ 17 10.1 Payment Conditions .................................................................................................. 17 10.2 Method of Payment ................................................................................................... 17 10.3 Claim Procedures ...................................................................................................... 17 10.4 HCoMS ...................................................................................................................... 18 10.5 Retention of Contribution........................................................................................... 18 10.6 Final Payment............................................................................................................ 18 10.7 Time Limits for Claims ............................................................................................... 19 11. Audit, Evaluation and Reporting....................................................................................... 19 11.1 Reporting – Audit Evaluation Guidelines ................................................................... 19 11.2 Record Keeping......................................................................................................... 19 RDIMS No. 2370671 version 5 CANADA – TOWNSHIP OF LANGLEY APGCITIF Page 2 of 44
Agreement for 64th Avenue Extension from 204 St. to 216 St, Township of Langley 2008/2009-2011/2012
11.3 Public Accounts ......................................................................................................... 19 11.4 Annual Financial Compliance Audit........................................................................... 19 11.5 Audit Plan .................................................................................................................. 19 11.6 Annual Report ........................................................................................................... 19 11.7 General Compliance Audit......................................................................................... 19 11.8 Other Audit ................................................................................................................ 20 11.9 Evaluation by the Parties........................................................................................... 20 11.10 Evaluation by Canada ............................................................................................... 20 12. Access................................................................................................................................. 20 13. Communications ................................................................................................................ 20 14. Indemnification................................................................................................................... 20 15. Dispute Resolution............................................................................................................. 21 15.1 Dispute Resolution .................................................................................................... 21 15.2 Referral...................................................................................................................... 21 16. Suspension and Default .................................................................................................... 21 16.1 Suspension................................................................................................................ 21 16.2 Notice of Suspension ................................................................................................ 22 16.3 Default ....................................................................................................................... 22 16.4 Remedies on Default ................................................................................................. 22 17. Disposal and Abandonment of Assets............................................................................. 23 17.1 Disposal of Fixed and Non-Fixed Assets................................................................... 23 17.2 Abandonment of Fixed and Non-Fixed Assets .......................................................... 25 17.3 Notice ........................................................................................................................ 25 18. Revenues from Assets....................................................................................................... 26 18.1 Public Benefit ............................................................................................................ 26 18.2 Tolling........................................................................................................................ 26 19. General ................................................................................................................................ 27 19.1 Governing Law .......................................................................................................... 27 19.2 Federal Crown Prerogative........................................................................................ 27 19.3 Compliance with Laws............................................................................................... 27 19.4 Financial Administration Act ...................................................................................... 27 19.5 Binding Obligations ................................................................................................... 27 19.6 Debts Due to her Majesty in Right of Canada ........................................................... 27 19.7 Interest on Debts Due to her Majesty in Right of Canada ......................................... 27 19.8 Set-Off by Canada..................................................................................................... 27 19.9 No Benefit.................................................................................................................. 27 19.10 No Partnership, No Joint Venture, No Agency, etc. .................................................. 28 19.11 No Authority to Represent ......................................................................................... 28 19.12 No Actions or Proceedings ........................................................................................ 28 19.13 Assignment................................................................................................................ 28 19.14 Waiver ....................................................................................................................... 28 19.15 Conflict of Interest ..................................................................................................... 28 19.16 Intellectual Property................................................................................................... 29 19.17 Consequential Measures........................................................................................... 29 19.18 Lobbyists and Agent Fees ......................................................................................... 29 19.19 Successor.................................................................................................................. 29 19.20 Official Languages Act .............................................................................................. 29 20. Notices, Document and Information................................................................................. 29 RDIMS No. 2370671 version 5 CANADA – TOWNSHIP OF LANGLEY APGCITIF Page 3 of 44
Agreement for 64th Avenue Extension from 204 St. to 216 St, Township of Langley 2008/2009-2011/2012
20.1 Notice Deemed Given ............................................................................................... 30 20.2 Documents and Information ...................................................................................... 30 20.3 Addresses for Canada and the Recipient.................................................................. 30 Signatures .................................................................................................................................. 32 Schedule A – Eligible and Ineligible Costs ............................................................................. 33 Schedule B – Detailed Project Description and Cash Flow................................................... 35 Schedule C – Communications Protocol ................................................................................ 36 Schedule D – Audit Framework................................................................................................ 39 Schedule E – Information ......................................................................................................... 42 Schedule F – Solemn Declaration of Substantial Completion .............................................. 44
RDIMS No. 2370671 version 5 CANADA – TOWNSHIP OF LANGLEY APGCITIF Page 4 of 44
Agreement for 64th Avenue Extension from 204 St. to 216 St, Township of Langley 2008/2009-2011/2012
ASIA PACIFIC GATEWAY CORRIDOR INITIATIVE TRANSPORTATION INFRASTRUCTURE FUND CONTRIBUTION AGREEMENT FOR 64TH AVENUE EXTENSION FROM 204 ST. TO 216 ST 2008/2009-2011/2012 This Contribution Agreement made in duplicate entered into on the __[INSERT st/rd/th]__ day of ___________, 20__.
BETWEEN:
HER MAJESTY IN RIGHT OF CANADA, represented by the Minister of Transport, Infrastructure and Communities (hereinafter “Canada”).
AND:
THE TOWNSHIP OF LANGLEY a corporation legally incorporated under the [NAME OF ACT] by [INSERT APPROPRIATE INSTRUMENT] dated [DATE], having its head office at 20338 65 Avenue, Langley in the province of BC, represented by [NAME, TITLE] duly authorized under [BY-LAW NO. and/or RESOLUTION OF ITS BOARD OF DIRECTORS DATED X], (hereinafter “Recipient”).
PREAMBLE WHEREAS the Parties recognize that investments in public infrastructure are fundamental to the quality of life of Canadians and necessary to ensure continued economic growth; WHEREAS the Minister of Transport, Infrastructure and Communities is responsible for the Program entitled the Asia Pacific Gateway Corridor Initiative Transportation Infrastructure Fund (hereinafter “APGCITIF and/or “Program”); WHEREAS the Township of Langley is authorized to execute this Agreement;
WHEREAS the Roberts Bank Rail Corridor Road/Rail Interface Study findings were used to develop nine new crossing locations to be constructed along a 70km stretch of Railway in the Lower Mainland of British Columbia that connects to the Deltaport Container Terminal. WHEREAS Canada and the Township of Langley, along with the other stakeholder organizations, agree to complete the Roberts Bank Rail Corridor Program as described in the Agreement-InPrinciple, dated June 28 2007 AND WHEREAS the Township of Langley agrees to carry out the Project and Canada wishes to provide financial support for the Project and its objectives;
RDIMS No. 2370671 version 5 CANADA – TOWNSHIP OF LANGLEY APGCITIF Page 5 of 44
Agreement for 64th Avenue Extension from 204 St. to 216 St, Township of Langley 2008/2009-2011/2012
NOW THEREFORE, in accordance with the principles set out above, Canada and the Township of Langley hereby agree as follows: 1.
INTERPRETATION
1.1
DEFINITIONS In addition to the terms defined in the recitals and elsewhere in this Agreement, a capitalized term has the meaning given to it in this section. “Agreement” means this contribution agreement and all schedules, as may be amended from time to time. “Agreement End Date” means March 31, 2012. “Canada’s Contribution” means Canada’s contribution to Eligible Costs as described in subsection 4.1 (a) (Contribution) of this Agreement. “Canada’s Original Contribution” means Canada’s Contribution to Eligible Costs for a Project Component as described in Schedule B of this Agreement as the Effective Date. “Committee” means Management Committee established pursuant to section 8. “Contract” means an agreement between the Recipient and a Third Party whereby the latter agrees to supply a product or service to the Project in return for financial consideration. “Disposed Asset” means the Fixed and/or Non-Fixed Asset as further described in subsection 16.1 a) i) and/or ii). “Effective Date” means the date this Agreement is signed by the last Party. “Electronic Instruction for Payment” means an instruction for payment, issued electronically on media or by on-line transfer, to a financial institution to credit the account of the Recipient with a specific payment. “Eligible Costs” means costs of the Project eligible for reimbursement by Canada as defined in Schedule A of this Agreement. “Final Project Component Claim Date” means the earlier of twelve (12) months after the Project Component Completion Date or two (2) months before the Agreement End Date. “Fiscal Year” means the period beginning April 1 of a year and ending March 31 of the following year. “Fixed Asset” means any non-movable asset constructed, rehabilitated, or improved, in whole or in part, with funds contributed by Canada under the terms of this Agreement.
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Agreement for 64th Avenue Extension from 204 St. to 216 St, Township of Langley 2008/2009-2011/2012
“Fixed Asset Disposal Period” means a period of twenty-five (25) years commencing from the Project Component Completion Date. “HCoMS” means a secure, self-contained, collaborative website developed by Canada, for the financial management of each agreement. Functions include, but are not limited to, Schedule B adjustments, Project and contract monitoring and claims processing. “Joint Communications Material” means all public information material prepared jointly by Canada and the Recipient regarding the Project including, but not limited to, news releases, backgrounders, publications, invitations, signage and media advisories, and as further outlined in Schedule C of this Agreement. “Non-Fixed Asset” means any movable asset, including but not limited to vehicles, purchased, constructed, rehabilitated, or improved, in whole or in part, with funds contributed by Canada under the terms of this Agreement. “Non-Fixed Asset Disposal Period” means a period of ten (10) years commencing from the Project Component Completion Date. “Party” or ”Parties” means Canada and/or the Township of Langley “Program” means Asia Pacific Gateway Corridor Initiative Transportation Infrastructure Fund. “Program End Date” means March 31, 2014. “Progress Claim” means a summary of Eligible Costs submitted periodically by the Recipient using HCoMS to Canada for reimbursement in accordance with this Agreement. “Project” means the infrastructure project described in the Project Overview in subsection 3.2 and Schedule B of this Agreement; “Project Completion Date” means March 31,2012. “Project Component” means any of the components of the Project as described in Schedule B of this Agreement, as may be amended from time to time in accordance with this Agreement. “Project Component Completion Date” means the date shown on the Solemn Declaration of Substantial Completion in Schedule F for that Project Component but no later than the Project Completion Date. “Recipient” means the Township of Langley. “Solemn Declaration of Substantial Completion” means the declaration by a professional engineer in accordance with the standards defined in subsection 4.2(c)(Guidelines as further described in Schedule F.
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“Substantial Completion” means when the Project Component is available for service to the general public. “TDM Plan” means a plan that incorporates TDM Measures. “Third Party” means any person, other than a Party, who participates in the implementation of the Project. “Tolls” means the user fees, rates or other charges imposed by the Recipient, or by a Third Party operator pursuant to an agreement between the Recipient and a Third Party operator, for the use of, in whole or in part, an infrastructure constructed, rehabilitated or improved under this Agreement. For the purposes hereof, weight-distance taxes or other highway/road network-wide levies will not be deemed Tolls. 1.2
ENTIRE AGREEMENT This Agreement is made under the APGCITIF and comprises the entire agreement between the Parties. No prior document, negotiation, provision, undertaking, agreement, representation or warranty, expressed, implied, or otherwise, in relation to the subject of the Agreement, shall have legal effect, nor does the Summary Information Box on the front page of this Agreement.
1.3
SCHEDULES The following schedules are attached to, and form part of, this Agreement: Schedule A – Eligible and Ineligible Costs; Schedule B – Detailed Project Description & Cash Flow; Schedule C – Communications Protocol; Schedule D – Audit Framework; Schedule E – Information; Schedule F – Solemn Declaration of Substantial Completion.
1.4
COUNTERPART SIGNATURE This Agreement may be signed in counterpart, and the signed copies will, when attached, constitute an original agreement.
1.5
ACCOUNTING PRINCIPLES AND AUDITING STANDARDS Unless otherwise set out in this Agreement, either expressly or by necessary implication, all accounting and financial terms used in this Agreement will be interpreted and applied in accordance with accounting principles and auditing standards generally accepted in Canada and in the province of British Columbia, in particular those of the Canadian Institute of Chartered Accountants.
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1.6
SEVERABILITY If for any reason a provision of this Agreement that is not a fundamental term of this Agreement between the Parties is found to be or becomes invalid or unenforceable, in whole or in part, and if both Parties agree, it will be deemed to be severable and will be deleted from this Agreement, but all the other terms and conditions of this Agreement will continue to be valid and enforceable.
1.7
AMENDMENTS Subject to the amendments / changes that can be made by the committee under section 8, this Agreement may be amended at any time upon the written agreement of the Parties and any amendments shall be deemed to form part of this Agreement.
1.8
SURVIVAL Despite section 2 (Term of this Agreement), the Parties’ rights and obligations, which by their nature extend beyond the expiration or termination of this Agreement, shall survive any expiration or termination of this Agreement.
1.9
COMPUTATION OF TIME If a day on which any act or payment is required to be done or made under this Agreement is a day that is not a business day, then such act or payment shall be duly performed or made if done on the following business day. In this subsection business day means a day that is not a Saturday, Sunday or a holiday.
2.
TERM OF AGREEMENT This Agreement will be effective as of the Effective Date and shall terminate on the Agreement End Date, subject to early termination in accordance with this Agreement.
3.
PURPOSE
3.1
PURPOSE OF THIS AGREEMENT The purpose of this Agreement is to establish the terms and conditions by which Canada will reimburse the Recipient a part of the Eligible Costs paid by the Recipient for the Project, as described in section 4 (Project Financing) and Schedule B of this Agreement.
3.2
PROJECT OVERVIEW This agreement is for the federal contribution towards the 64th Avenue Extension in Langley Township, British Columbia. The Project will consist of the construction of approximately 2km of new four-lane municipal roadway extending from 204 St. to 216 St. on the 64th Avenue alignment. A new structure will be constructed to carry the roadway over the Roberts Bank Rail Corridor as well as Provincial Highway 10. Another new structure will be built to carry the roadway over North Creek. The new facility will be a multi-modal facility that includes dedicated bicycle lanes and pedestrian facilities.
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4.
PROJECT FINANCING
4.1
CONTRIBUTION BY CANADA a)
Contribution i)
Canada agrees, subject to the terms and conditions of this Agreement, to pay a contribution to the Recipient of not more than 50% of the total Eligible Costs of the Project, as of the Effective Date, but only up to a total of $3.1M, in accordance with the breakdown by Fiscal Year in Schedule B.
ii) The Parties agree that, no matter what the circumstances and notwithstanding any other provision of this Agreement, Canada will not be required to contribute more than fifteen (15) percent of Canada’s Contribution to those Eligible Costs described in subsection A.1 c) d) f) and g) of Schedule A. b)
No involvement The Parties agree that Canada’s role in the Project is limited to making a financial contribution to the Project and that Canada will have no involvement in the Project and/or the subsequent operation of the Project. Canada is neither a decision maker nor an advisor to the Project, or any part thereof, except to the extent necessary to enforce the provisions of this Agreement.
c)
Appropriation and Funding Any payment due by Canada under this Agreement is subject to there being an appropriation by Parliament for the Fiscal Year in which the payment is to be made. Funding under this Agreement may be reduced or terminated at Canada’s discretion in response to the Government’s annual budget, a change in departmental funding levels by Parliament or any other parliamentary spending decision that has an impact on the Program under which this Agreement is made.
d)
Fiscal Year Budgeting Subject to the terms and conditions of this Agreement, Canada agrees to commit funds for the Project for a Fiscal Year in accordance with the table of estimated contributions in Schedule B. If in a Fiscal Year an amount lesser than the estimated contribution is paid or payable by Canada, Canada will not be obliged to re-allocate the difference to a future Fiscal Year. However, Canada will make reasonable efforts to re-allocate the difference to a future Fiscal Year subject to subsection 4.1 (c) (Appropriation and Funding).
4.2
COMMITMENTS BY THE RECIPIENT a) Costs Canada will reimburse the Recipient only in accordance with the terms and conditions of this Agreement. The Recipient shall fund all costs of the Project including cost overruns, if any.
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b) Project implementation The Recipient shall be solely responsible for the complete, diligent and timely implementation of the Project, in accordance with the terms and conditions of this Agreement. The Recipient shall comply with, and ensure that any Third Party Contractor or Concessionaire complies with all applicable laws, including environmental legislation of Canada and British Columbia in the implementation of the Project under this Agreement. c) Guidelines The Recipient agrees to undertake, or cause to be undertaken, the engineering and construction work, in accordance with the guidelines recognized by the Transportation Association of Canada (TAC), or any other equivalent guidelines approved by the Committee. d) Disclosure of Other Funding and Adjustments The Recipient shall inform Canada promptly of all financial and other assistance received for the Project. If the federal government’s total financial assistance toward the Project exceeds 50% of total Eligible Costs, or if the total financial assistance received or due in respect of the Project’s total Eligible Costs exceeds 100% thereof, Canada may recover the excess from the Recipient or reduce its contribution by an amount equal to the excess. e)
Amounts Owing The Recipient shall declare to Canada any amounts owing to the federal government, under legislation or contribution agreements that constitute an overdue debt. The Recipient recognizes that any amount owing is a debt and may be set off by Canada in accordance with this Agreement.
f) Repayment The Recipient shall repay to Canada any and all disallowed costs, surpluses, and overpayments made under and according to the terms of this Agreement. g) Increase in Project Costs and Insufficient Funds If, at any time during the term of this Agreement, one or all of the Parties determines that it will not be possible to complete construction of the Project unless the Recipient expends amounts in excess of the funding available to it, the Party shall immediately notify the other Party of that determination and Canada may provide notice of suspension in accordance with section 16 (Suspension and Default) of this Agreement. 5.
RECIPIENT OBLIGATIONS Notwithstanding any other provision in this Agreement, the Recipient shall: a)
establish a fixed location(s) or relocation, as required, where this Agreement will be
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managed for its duration and maintain that location until the Committee’s activities have concluded; b)
retain at the location, and make available to the Parties, all documents relevant to this Agreement and the work of the Committee;
c)
prepare and make available to Canada, upon request, all documentation needed for the proper administration of this Agreement, including but not limited to, payment claim forms, approval documents, agendas and minutes of meetings of the Committee and its subcommittees, Contracts, etc.;
d)
ensure that any audit requested by Canada or the Federal Co-Chair under this Agreement is performed and the results are reported to Canada;
e)
promptly inform the Federal Co-chair of all proposed changes to any term of this Agreement;
f)
provide to Canada, as requested, accurate and timely financial forecasts for the Project Components listed in Schedule B;
g)
provide to Canada, as requested, status reports for the Project Components listed in Schedule B to Canada’s satisfaction;
h)
enter into bilateral agreements to support the terms of this Agreement where the Recipient is not the deliverer of the Project; and
6.
COMPLIANCE WITH ENVIRONMENTAL LEGISLATION
6.1
CONDITIONAL COMMITMENT The Recipients acknowledge that: a) Should Canada decide that an environmental assessment (EA) of the Project is required pursuant to the Canadian Environmental Assessment Act (CEAA), the Recipient agree that, despite any other provision of this Agreement, no funds will become payable by Canada to the Recipient under this Agreement unless the EA has been conducted in accordance with the CEAA and Canada has determined that, taking into account the implementation of any mitigation measures that Canada considers appropriate, the Project as assessed pursuant to the CEAA (“CEAA Project”) is not likely to cause significant adverse environmental effects or the “CEAA Project” is likely to cause significant adverse environmental effects that can be justified in the circumstances as determined by a mediator or review panel under CEAA; b) Should an EA of the Project be required pursuant to the CEAA, the Recipient agree that they shall not undertake the construction of the Project until the EA has been conducted in accordance with the CEAA and that Canada has determined that, taking into account the implementation of any mitigation measures that Canada considers appropriate, the “CEAA Project” is not likely to cause significant adverse environmental effects or the “CEAA Project” is likely to cause significant adverse environmental effects that can be
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justified in the circumstances as determined by a mediator or review panel under CEAA; c) Should an EA of the Project be required pursuant to the CEAA, the Recipient agree that Canada may delegate the task of conducting the EA to the Recipients under the direction and in cooperation with Canada; d) Should Canada determine that, taking into account the implementation of mitigation measures that Canada considers appropriate, the “CEAA Project” is not likely to cause significant adverse environmental effects or that the “CEAA Project” is likely to cause significant adverse environmental effects that can be justified in the circumstances as determined by a mediator or review panel under CEAA, Canada shall ensure that a copy of the completed EA report be given to the Recipients and the Recipient agree to implement the mitigation measures set out in the report and any subsequent alternative mitigation measures as agreed by the Parties; e) Should Canada be required to design a follow-up program under the CEAA for the “CEAA Project” or decide that a follow-up program under the CEAA is appropriate in the circumstances, the Recipients agree to design the follow-up program and to implement it to Canada’s satisfaction, and to provide written reports to Canada; f)
Without limiting the generality of any other provision of this Agreement, the Recipient further agree to provide Canada with access to Project sites, upon reasonable notice, for the purpose of ensuring that the mitigation measures and the follow-up program have been implemented;
g) The Recipient further agree that the written reports mentioned in subsection 6.1 e) of this Agreement will indicate whether Canada’s conclusions with respect to the “CEAA Project’s” environmental significance were accurate and whether the mitigation measures that have been implemented by the Recipient are effective; and h) Should Canada need to revisit the EA or ensure that a subsequent EA is conducted, the Recipient agree that all of Canada's obligations pursuant to this Agreement will be suspended from the moment that Canada informs the Recipient that the current EA needs to be revisited or that a new EA needs to be conducted and such situation will remain until Canada has decided that, taking into account the implementation of any mitigation measures that Canada considers appropriate, the “CEAA Project” is not likely to cause significant adverse environmental effects or the “CEAA Project” is likely to cause significant adverse environmental effects that can be justified in the circumstances as determined by a mediator or review panel under CEAA. 7.
ABORIGINAL CONSULTATION
7.1
CONDITIONAL COMMITMENT
7.2
ABORIGINAL CONSULTATION INFORMATION The Recipient shall provide Canada with the following information to assess whether the requirement in subsection 7.1 has been fulfilled: a) Identification of all Aboriginal groups contacted by the Recipient for the Project;
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b) Summary of any and all communication to date with any and all Aboriginal groups; c) Identification of any issues or concerns raised by Aboriginal groups for the Project and, if applicable, how the Recipient intends to address those issues or concerns; d) Written documentation of the Aboriginal groups contacted, and their identity, who are in support of the Project or have no objection to the Project proceeding, and identification of whether the positions are final, preliminary, or conditional in nature; and e) Proposed plan for any further consultation through the Environmental Assessment and Regulatory Phases of the Project, including federal involvement, if applicable. 8.
MANAGEMENT COMMITTEE
8.1
ESTABLISHMENT Within sixty (60) days of the Effective Date, the Parties agree to establish a Management Committee (“Committee”) to administer and manage this Agreement. Each Party agrees to appoint 1 member to the Committee and agrees to notify the other of the appointments within the sixty (60) day period. The Committee will exist until its activities, including the audits, reports and final adjustments, have been completed.
8.2
CO-CHAIRS The Committee shall be chaired by the two (2) members (“Federal Co-chair” and “Recipient Co-chair”). If a Co-chair is absent or otherwise unable to act, the representative duly authorized to replace her/him will replace the Co-chair.
8.3
MEETINGS The Committee shall meet regularly at the places and on the dates agreed to by the CoChairs or at the written request of the Federal or Recipient Co-Chair.
8.4
RULES AND PROCEDURES Within sixty (60) days of its initial meeting, the Committee shall establish written rules and procedures with respect to its meetings and those of its sub-committees, including rules for the conduct of meetings and the making of decisions.
8.5
RECOMMENDATIONS AND DECISIONS All recommendations and decisions of the Committee must be unanimous and recorded in writing. If the Committee cannot arrive at a unanimous decision or recommendation, the committee shall refer the matter to the Parties for resolution as per subsection 15.2 (Referral).
8.6
MANDATE The Committee shall:
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8.7
a)
adhere to and comply with the terms and conditions of this Agreement, including but not limited to policies, procedures and Schedules herein;
b)
review the procedures described in subsection 9.1 (Awarding of Contracts) and ensure that the principles in subsection 9.2 (Contract Provisions) are respected;
c)
monitor the progress of the Project for the purpose of and to the extent necessary to enforce the provisions of this Agreement;
d)
subject to section 4 (Project Financing) and subsection 8.7 (Changes During the Term of the Agreement), review and change the information in Schedule B by amending the Schedule accordingly, to ensure that the work can be completed as described, including but not limited to the Project descriptions, approved budgets, and cash flows, prior to the beginning of each Fiscal Year and as may be required;
e)
establish sub-committees, as needed, for carrying out this Agreement; and
f)
attend to any other function required by this Agreement or as mutually directed by the Parties.
CHANGES DURING THE TERM OF THE AGREEMENT a)
In this section, “significant change” means, in respect of the Project: i. any change to the Project Overview, as described in section 3.2, that Canada deems significant; ii. a change to the Project description, as described in Schedule B, which: i. reduces or increases quantifiable elements of a Project Component as determined by Canada, including but not limited to, distances, sizes, the number of lanes, corridors, stops, vehicles, and structures, by more than 20%; or ii. significantly changes the location of a Project Component, as determined by Canada; or iii. adds or removes a Project Component. iii. a change to a Project Component’s schedule, as described in Schedule B, which will cause said Project Component to be completed after the Project Completion Date; iv. any change that may require a further environmental assessment decision under subsection 6.1; v. one or more increases to Canada’s Contribution to a Project Component, as described in Schedule B, which, when added to any previous increase, would be greater than 20% of Canada’s Original Contribution of said Project Component; and
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b)
A request for a change to the Project will be reviewed by the Committee, and i. If the change is not significant, the Committee may approve or reject it unless the change requires an amendment to any other part of this agreement excluding Schedule B; or ii. If the change is significant or could result in an amendment as contemplated in Subsection 8.7 (b) (i), the Co-chairs shall present it to the Parties for a decision.
8.8
RBRC PARTNERS COMMITTEE Both parties acknowledge the presence of a RBRC Partners Committee. The primary purpose of the Partners Committee is to provide senior level oversight to the project delivery team (Township of Langley) to develop, coordinate and implement the RBRC Projects on behalf of the senior level funding partners.
9.
CONTRACT PROCEDURES
9.1
AWARDING OF CONTRACTS
a) The Recipient shall ensure that all Contracts are awarded and managed in accordance with its relevant policies and procedures, a copy of which will be provided to the Committee, within thirty (30) days of the first Committee meeting, and a copy of any amendment(s) will be provided to the Committee within thirty (30) days of its effective date;
b) Notwithstanding the foregoing, the Recipient shall ensure that Contracts will be awarded in a way that is: i. transparent, competitive and consistent with value for money principles; and ii. in accordance with the Agreement on Internal Trade; or otherwise acceptable to Canada.
c) Canada may require that a Contract for a Project Component be re-tendered if, in Canada’s opinion, it was not awarded in compliance with the foregoing;
d) If Canada requires that the Contract for a Project Component be re-tendered, Canada shall not be responsible for any and all costs associated, directly or indirectly, with said Contract re-tendering; and
e) Within thirty (30) days of the first Committee meeting, the Recipient shall enter the relevant Contract information into HCoMS for any existing Contracts for which the Recipient will receive funding under this Agreement. For all Contracts awarded thereafter, the Recipient shall, within thirty (30) days of awarding a Contract, enter the relevant Contract information into HCoMS. 9.2
CONTRACT PROVISIONS
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The Recipient shall ensure that all Contracts are consistent with, and incorporate, the relevant provisions of this Agreement. More specifically but without limiting the generality of the foregoing, the Recipient agrees to include in the Contracts, provisions to ensure that: a)
proper and accurate accounts and records are maintained and that the Recipient has the contractual right to audit them;
b)
all applicable legislation is respected including labour, environmental and human rights legislation; and
c)
Canada and the Auditor General of Canada, to the extent permitted by law will at all times, and upon reasonable notice, have free access to the Project sites and to any documentation, for the purpose of ensuring compliance with this Agreement, including access to all facilities and information required for inspection and audit.
10.
CLAIMS AND PAYMENTS
10.1
PAYMENT CONDITIONS a) Other than the first Fiscal Year, no payment shall be made by Canada during a subsequent Fiscal Year until the claims for Eligible Costs actually incurred and paid by the Recipient during the previous Fiscal Year have been audited as described in Schedule D and the annual report and audit have been submitted and accepted by the Federal Co-Chair as described in Schedule D. Canada will provide such acceptance or notice of deficiency no later than thirty (30) days from receipt of the required annual reports and audits; b) Canada will under no circumstances be liable for the payment of interest for failing to make a payment under this Agreement; c) Subject to the exception of the claims related to those costs identified in A.1 (h), Canada shall not be obliged to pay any claims submitted after the Final Project Component Claim Date; d) No payment shall be made by Canada until an environmental assessment has been completed in accordance with subsection 6.1 (Compliance with Environmental Legislation); and e) No payment shall be made by Canada until the Recipient has complied with its obligations under section 7 (Aboriginal Consultation).
10.2
METHOD OF PAYMENT Payments by Canada shall be made by means of an Electronic Instruction for Payment.
10.3
CLAIM PROCEDURES a) No payment shall be made by Canada unless the Progress Claim has been certified by the Recipient Co-chair, or a senior official designated, in writing, by the Recipient Co-chair, and approved by the Federal Co-chair; b)
the Recipient agrees to submit Progress Claims in a form acceptable to the Federal
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Co-chair and must include the following: i)
Certification, in HCoMS, by the Recipient Co-chair or a senior official designated, in writing, by the Federal Co-chair, as to the accuracy of the information submitted in support of the claim; and
ii) Breakdown of Eligible Costs claimed, by Project Component listed in Schedule B. iii) Identification of any deferred payment amount. 10.4
HCOMS The Parties agree to use Transport Canada’s Highway Contribution Management System (HCoMS) to process claims and payments and monitor progress under this Agreement. HCoMS will be available to the Recipient in both official languages. Modifications and improvements to the system may be made by Canada at its discretion and expense.
10.5
RETENTION OF CONTRIBUTION Canada shall retain the final five percent (5%) of its contribution for each Project Component under this Agreement until such time as the Recipient fulfills its obligations under sections 10.1 (Payment Conditions) and 10.6 (Final Payment). Any contribution retained by Canada will be paid with the final payment under this Agreement.
10.6
FINAL PAYMENT The request for final payment for each Project Component under this Agreement shall be accompanied by: a) A summary report certified by the Recipient Co-chair confirming: i. Compliance with the terms and conditions of this Agreement; ii. The amounts and the sources of all Project Component funding; iii. All costs of the Project Component; iv. The use made of the contribution under this Agreement and affirmation of all Eligible Costs incurred and paid by the Recipient for the Project Component; and v. All outstanding financial items, including any amount that may have been claimed by the Recipient for ineligible costs or overpayments. b) A Solemn Declaration of Substantial Completion declared by a professional engineer in respect of each Project Component as described in Schedule F; c) Confirmation from the Recipient Co-chair that the TDM Measures required under this Agreement and the associated TDM Plan will be implemented and maintained for a minimum of one (1) year after the Project Completion Date; and d) Any outstanding documents and reports required under this Agreement.
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10.7
TIME LIMITS FOR CLAIMS The Recipient agrees to submit all claims for payment by the Agreement End Date Final Project Component Claim Date for each Project Component. Subject to the exception of the claims related to those costs identified in A.1 (h), Canada will have no obligation to pay a claim submitted after the deadline specified in this provision.
11.
AUDIT, EVALUATION AND REPORTING
11.1
REPORTING – AUDIT EVALUATION GUIDELINES The Recipient shall comply with the Audit Framework contained in Schedule D.
11.2
RECORD KEEPING The Recipient shall ensure that it, and Third Parties with which it contracts, maintains proper and accurate accounts and records, including, but not limited to, contracts, invoices, statements, receipts and vouchers, in respect of the Project, and that these are kept for at least six (6) years after the Project Component. The Recipient shall, upon reasonable notice, make said documents available to Canada for inspection and audit.
11.3
PUBLIC ACCOUNTS The Recipient shall, in its public accounts, reflect Canada’s contribution in accordance with established accounting practices.
11.4
ANNUAL FINANCIAL COMPLIANCE AUDIT The Recipient shall submit to Canada, on an annual basis, and by July 31st of each Fiscal Year commencing the first Fiscal Year in which a claim is paid or payable and for each subsequent Fiscal Year thereafter for which a claim is paid or payable, an audit of the accounts, records, claims, and expenditures incurred under this Agreement in accordance with the Audit Framework attached hereto as Schedule D.
11.5
AUDIT PLAN The Recipient agrees to submit to Canada, by November 30th, of each Fiscal Year for which an audit is required pursuant to section 11.4 (Annual Financial Compliance Audit) and 11.7 (General Compliance Audit) an audit plan of the next annual audit, in accordance with the provisions of Schedule D.
11.6
ANNUAL REPORT The Recipient shall, by July 31st of each Fiscal Year, provide Canada with an annual report on progress achieved under this Agreement during the previous Fiscal Year in accordance with the provisions of Schedule D, and as required by Canada, shall attach all relevant documentation.
11.7
GENERAL COMPLIANCE AUDIT The Recipient shall submit a general compliance audit report to Canada, where the Federal
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Co-chair deems it necessary, in accordance with federal Program requirements. The general compliance audit will provide assurances that the Recipient has complied with specific sections of the Agreement as deemed appropriate by the Federal Co-chair. 11.8
OTHER AUDIT In addition to audits performed by the Recipient under subsections 11.4 (Annual Financial Audit) and 11.7 (General Compliance Audit), Canada may, at its own expense during the Agreement and for a period of 2 years following the Agreement End Date for the purpose of internal Program audit, audit all accounts, records and claims for reimbursement relating to the Project and may undertake reviews of the Recipient’s administrative, financial and claim certification processes, upon written notice to the Recipient, as per section 12 (Access).
11.9
EVALUATION BY THE PARTIES a) The Parties agree to cooperate with respect to the retrospective evaluation of the Project, the costs of which the Parties will share, as defined in Schedule B of this Agreement. b) The Recipient will prepare a retrospective evaluation for each Project receiving a federal contribution of $5 million or more, to the satisfaction of Canada, prepared from data collected at one month after opening and 6 years after opening. The final report will be submitted within 7 years of completion of the Project.
11.10 EVALUATION BY CANADA The Recipient shall, on a written request by Canada, provide all data and information to Canada for the purposes of the national evaluation of the Program for which Canada shall bear all costs. 12.
ACCESS The Recipient shall provide free access to Canada, the Auditor General of Canada and /or their designated representatives at all times, upon reasonable notice, to the Project sites and any documentation for the purpose of ensuring compliance with this Agreement including access to all facilities and information required for inspection and audit.
13.
COMMUNICATIONS The Parties shall comply with the Communications Protocol as established in Schedule C.
14.
INDEMNIFICATION a) The Recipient shall at all times indemnify and save harmless Canada, its officers, servants, employees or agents (“Indemnified Party”), from and against all claims and demands, losses, costs, damages, actions, suits or other proceedings by whomsoever brought or prosecuted in any manner based upon, or occasioned by any injury to persons, damage to or loss or destruction of property, economic loss or infringement of rights caused by or arising directly or indirectly from:
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i. the Project; ii. the performance of this Agreement or the breach of any term or condition of this Agreement by the Recipient, its officers, servants, employees or agents, or by a Third Party, its officers, servants, employees or agents; iii. the design, construction, operation, maintenance and repair of any part of the Project; and iv. any omission, misrepresentation or other wilful or negligent act of the Recipient, Third Party or any other outside party and their respective officers, servants, employees or agents, except to the extent to which such claims and demands, losses, costs, damages, actions, suits, or other proceedings relate to the act or negligence of an Indemnified Party in the performance of his or her duties. b) An Indemnified Party shall give prompt notice to the Recipient of any action threatened or commenced against it in respect of which indemnity may be sought under this Agreement but failure to so notify the Recipient shall not relieve the Recipient from any liability which it may have otherwise than on account of this indemnity. If requested by Canada, the Recipient shall assume the defence of such action with legal advisors chosen by the Recipient and approved by Canada. The Indemnified Party shall cooperate with the Recipient in defending such claims, including providing the Recipient with any necessary information and documentation. An Indemnified Party shall not voluntarily admit any liability or settle any claim against them covered by this indemnity without the Recipient prior written approval. The Recipient may not settle any action commenced against an Indemnified Party without the written consent of Canada and any other Indemnified Party. 15.
DISPUTE RESOLUTION
15.1
DISPUTE RESOLUTION The Parties shall keep each other informed of any matter that could be contentious by exchanging information within the Committee. The Committee shall attempt to resolve potential disputes when it is within its mandate.
15.2
REFERRAL If an issue contemplated by section 15.1 (Dispute Resolution) arises, the Federal Co-Chair and the Recipient Co-Chair shall examine it together as soon as possible and in any event within 20 days within receipt of notice of such contentious matter. Where the Co-Chairs cannot agree on a resolution, the matter will be referred to the Parties for resolution. A decision will be provided within 90 days. Any payments related to the matter issue in dispute will be suspended, together with the obligations related to such issue, pending resolution.
16.
SUSPENSION AND DEFAULT
16.1
SUSPENSION
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Notwithstanding section 15 (Dispute Resolution) of this Agreement, Canada may suspend payment or any obligation to contribute to Eligible Costs in accordance with subsections 16.2 and 16.3 of this Agreement, including any obligation to pay any amount prior to the date of suspension, where the Recipient: a) has submitted false or misleading information, or made a false or misleading representation to Canada; b) has not complied with any obligation, condition, undertaking or term in this Agreement; c) has neglected or failed to pay to Canada any amount due in accordance with this Agreement; d) has been determined, by Canada, under subsection 4.2 h) to be unable to complete construction of the Project unless the Recipient expends amounts in excess of the funding available to it; e) becomes insolvent, commits an act of bankruptcy, takes the benefit of any statute relating to bankrupt and insolvent debtors, or goes into receivership or bankruptcy; or f) is wound up or dissolved. 16.2
NOTICE OF SUSPENSION Canada will not suspend payment pursuant to this Agreement until it has provided the Recipient with written notice specifying the nature of one of the events mentioned in section 16.1 of this Agreement and requesting the event to be remedied within thirty (30) days from the date of notice, unless one of the events under subsection 16.1(e) or 16.1(f) of this Agreement occurs wherein Canada may automatically suspend payment and advise the Recipient, in writing, of the decision.
16.3
DEFAULT (a) Canada shall suspend payment and may declare and advise the Recipient in writing that it is in default if the Recipient fails to remedy any event of suspension mentioned in subsection 16.1 (a) to 16.1(d) within the thirty (30) days pursuant to subsection 16.2; or (b) Canada may consider the Recipient in default, if an event under subsections 16.1(e) or 16.1(f) occurs and advise the Recipient, in writing, of the decision.
16.4
REMEDIES ON DEFAULT If Canada has declared or considered the Recipient to be in default, Canada may, without limiting any other recourses available to it, suspend, subject to subsections 16.2 and 16.3 of this Agreement, or terminate any obligation by Canada under this Agreement, and/or require the Recipient to repay all or part of the contribution, as liquidated damages, forthwith and
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that amount shall be considered a debt due to Canada and shall be reimbursed forthwith on demand to Canada. Any such debt remaining owing and unpaid shall carry interest calculated in accordance with subsection 18.7 of this Agreement.
17.
DISPOSAL AND ABANDONMENT OF ASSETS
17.1
DISPOSAL OF FIXED AND NON-FIXED ASSETS a) Notwithstanding any other provision in this Agreement, if, during the Fixed Asset Disposal Period and Non-Fixed Asset Disposal Period, the Recipient, in respect of that Project Component: i)
sells, leases, encumbers or otherwise disposes of, directly or indirectly, any Fixed Asset or Non-Fixed Asset to a third party; or
ii) takes any action, directly or indirectly, that will leave the Fixed Asset and/or NonFixed Asset no longer available for service to the general public; (collectively referred to as the “Disposed Asset”), the Recipient shall reimburse Canada, upon Canada’s demand, the greater of: I) the proportion of proceeds received by the Recipient from the third party equal to the percentage contributed by Canada for the Disposed Asset; or ll) the proportion of Canada’s Contribution for the Disposed Asset, reduced in accordance with the tables below-mentioned. Notwithstanding the above, the total reimbursed by the Recipient shall not exceed the amount paid by Canada towards said Disposed Asset.
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TABLE A – FIXED ASSET Timeframe:
Up to 1 year after the Project Component Completion Date 1 to 2 years after the Project Component Completion Date 2 to 3 years after the Project Component Completion Date 3 to 4 years after the Project Component Completion Date 4 to 5 years after the Project Component Completion Date 5 to 6 years after the Project Component Completion Date 6 to 7 years after the Project Component Completion Date 7 to 8 years after the Project Component Completion Date 8 to 9 years after the Project Component Completion Date 9 to 10 years after the Project Component Completion Date 10 to 11 years after the Project Component Completion Date 11 to 12 years after the Project Component Completion Date 12 to 13 years after the Project Component Completion Date 13 to 14 years after the Project Component Completion Date 14 to 15 years after the Project Component Completion Date 15 to 16 years after the Project Component Completion Date 16 to 17 years after the Project Component Completion Date 17 to 18 years after the Project Component Completion Date 18 to 19 years after the Project Component Completion Date 19 to 20 years after the Project Component Completion Date 20 to 21 years after the Project Component Completion Date 21 to 22 years after the Project Component Completion Date 22 to 23 years after the Project Component Completion Date 23 to 24 years after the Project Component Completion Date 24 to 25 years after the Project Component Completion Date 25 years after the Project Component Completion Date
TABLE B – NON-FIXED ASSET
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Return of contribution for Fixed Asset (in current dollars) 100% 96% 92% 88% 84% 80% 76% 72% 68% 64% 60% 56% 52% 48% 44% 40% 36% 32% 28% 24% 20% 16% 12% 8% 4% 0%
Agreement for 64th Avenue Extension from 204 St. to 216 St, Township of Langley 2008/2009-2011/2012
Timframe:
Up to 1 year after the Project Component Completion Date 1 to 2 years after the Project Component Completion Date 2 to 3 years after the Project Component Completion Date 3 to 4 years after the Project Component Completion Date 4 to 5 years after the Project Component Completion Date 5 to 6 years after the Project Component Completion Date 6 to 7 years after the Project Component Completion Date 7 to 8 years after the Project Component Completion Date 8 to 9 years after the Project Component Completion Date 9 to 10 years after the Project Component Completion Date 10 years after the Project Component Completion Date
Return of contribution for Non-Fixed Asset (in current dollars) 100% 90% 80% 70% 60% 50% 40% 30% 20% 10% 0%
b) Subject to subsection 19.13 (Assignment), if the Recipient takes any action described in subsection 17.1 a) i) of this Agreement during the Fixed Asset Disposal Period or NonFixed Asset Disposal Period, the Recipient shall assign its rights and obligations under this Agreement to the outside party involved; c) Notwithstanding the foregoing, if the Recipient takes any action described in subsection 16.1 a) i) of this Agreement during the Fixed Asset Disposal Period or Non-Fixed Asset Disposal Period, based on technical or operational requirements of the Recipient, the Recipient may, at Canada's discretion and with its written approval, in lieu of the repayment set out above, reinvest the proceeds from the Disposed Asset into an asset that replaces the Disposed Asset. If Canada deems the reinvestment inappropriate, the Recipient shall be required to reimburse Canada, as per subsection 16.1 a); and d) Notwithstanding the foregoing, if the Recipient takes any action described in subsection 16.1 a) i) of this Agreement during the Fixed Asset Disposal Period or Non-Fixed Asset Disposal Period, for a nominal amount, and the Disposed Asset remains available for service to the general public, Canada may, at its discretion, choose to waive the remedies identified in subsections 16.1 a) I) and 16.1 a) II). 17.2
ABANDONMENT OF FIXED AND NON-FIXED ASSETS If, at any time during the Fixed Asset Disposal Period or Non-Fixed Asset Disposal Period the Recipient proposes to significantly reduce, abandon or substantially abandon, as determined by Canada, a Fixed or Non-Fixed Asset, even if it remains under the ownership of the Recipient, Canada may require the Recipient to reimburse Canada, on demand, a proportionate amount of the funds contributed by Canada for the section of the Project Component or Project Sub-Component which has been reduced, abandoned or essentially abandoned in accordance with the table in subsection 16.1 a) (Disposal of Fixed and NonFixed Assets).
17.3
NOTICE
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The Recipient shall notify Canada in writing, one hundred eighty (180) days in advance if, at any time during the Fixed Asset Disposal Period or Non-Fixed Asset Disposal Period, the Recipient proposes, plans or anticipates to take any action as described in subsection 16.1 a) (Disposal of Fixed and Non-Fixed Assets). The Recipient shall notify Canada in writing, one hundred eighty (180) days in advance if, at any time during the Fixed Asset Disposal Period or Non-Fixed Asset Disposal Period, the Recipient proposes to significantly reduce, abandon or essentially abandon a Fixed and/or Non-Fixed Asset, as described in subsection 16.1 a) (Disposal of Fixed and Non-Fixed Assets). 18.
REVENUES FROM ASSETS
18.1
PUBLIC BENEFIT The Parties acknowledge that their contributions to the Project are meant to accrue to the public benefit. The Recipient will notify Canada in writing within ninety (90) days of the end of a Fiscal Year, if any Fixed Asset and/or Non-Fixed Asset to which Canada has contributed under this Agreement is used in such a way that, in the Fiscal Year, revenues are generated from it which exceed its operating expenses and Canada may require the Recipient to pay to Canada immediately a portion of the excess, in the same proportion as Canada's contribution is to the total cost of the asset. This obligation will apply only to the first twenty (20) complete Fiscal Years following the Project Component Completion Date.
18.2
TOLLING The Project, as described under this Agreement, will not be tolled at any time during a period of twenty-five (25) years after the Project Completion Date, unless an agreement is reached with Canada relative to the establishment of Tolls and the treatment of funds contributed by Canada for the Project under this Agreement, and: (i) A free and fully accessible alternate route is available, without significant restrictions, unless the only alternate route is serviced by ferry, bridge, or through tolled facilities already existing as at the Effective Date; (ii) toll revenues are used exclusively to offset project costs for projects where toll revenues, in whole or in part, flow to a private sector operator excluding Eligible Costs covered under this Agreement; ongoing operating costs; capital maintenance (e.g., resurfacing); a contingency reserve; rate of return on capital (excluding all public contributions); and purchase of private land for the right-of-way, if any; (iii) a tariff of Tolls be made available by the Recipient to any member of the public, on request; (iv) the tariff of Tolls, and exemptions, be applied without discrimination for the same class of user, regardless of their place of origin; and (v) Tolls are collected, where feasible, through the use of electronic tolling systems that
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are compatible with North American standards. The Recipient agrees not to permit the establishment of Tolls, at any time during a period of twenty-five (20) years after the date of completion of a Project, for all or a portion of the Project, unless an agreement is reached with Canada relative to the establishment of Tolls and the treatment of funds contributed by Canada for the Project under this Agreement. 19.
GENERAL
19.1
GOVERNING LAW This Agreement is governed by the laws of British Columbia, subject always to any paramount or applicable federal laws.
19.2
FEDERAL CROWN PREROGATIVE Nothing in this Agreement is intended to or is construed as limiting, waiving or derogating from any federal Crown prerogative.
19.3
COMPLIANCE WITH LAWS The Recipient shall comply with all applicable laws and regulations, including but not limited to environmental laws and regulations, and all requirements of regulatory bodies having jurisdiction over the subject matter of this Project.
19.4
FINANCIAL ADMINISTRATION ACT Notwithstanding any other provision in this Agreement, the obligations contracted by Canada are all subject to the Financial Administration Act (R.S., 1985, c. F-11).
19.5
BINDING OBLIGATIONS Each Party declares to the other that the signing and execution of this Agreement was duly and validly authorized, and that each has incurred a legal and valid obligation that is binding on it.
19.6
DEBTS DUE TO HER MAJESTY IN RIGHT OF CANADA Any amount owed to Canada under this Agreement will constitute a debt due to Her Majesty in Right of Canada, which the Recipient agrees to reimburse Canada forthwith on demand.
19.7
INTEREST ON DEBTS DUE TO HER MAJESTY IN RIGHT OF CANADA Debts due to Her Majesty in Right of Canada will accrue interest in accordance with the Interest and Administrative Charges Regulations (SOR/96-188) of the Financial Administration Act (R.S., 1985, c. F-11).
19.8
SET-OFF BY CANADA Any debt due to Her Majesty in Right of Canada may be set-off against any amounts payable by Canada to the Recipient under this Agreement.
19.9
NO BENEFIT
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No member of the House of Commons or the Senate of Canada will be admitted to any share or part of this Agreement or of any Contract made pursuant to this Agreement, or to any benefit arising from them. 19.10 NO PARTNERSHIP, NO JOINT VENTURE, NO AGENCY, ETC. No provision of this Agreement and no action by the Parties will establish or be deemed to establish a partnership, joint venture, principal-agent relationship, or employer-employee relationship in any way or for any purpose whatsoever between Canada and the Recipient or between Canada and a Third Party. Without limiting the generality of the foregoing, the Recipient agrees not to represent itself, including in any agreement with a Third Party, as a partner or agent of the Crown. Canada shall have no responsibility for fulfilment of any obligation into which the Recipient enters in relation to the Project, including, without limitation, any loan, capital lease or other long-term obligation. 19.11 NO AUTHORITY TO REPRESENT Nothing in this Agreement is to be construed as authorizing a Third Party to contract for, or to incur any obligation on behalf of, a Party or to act as agent for a Party. No provision of this Agreement shall be construed as authorizing a claimant or any person to enter into a Contract or to contract an obligation on behalf of any of the Parties, and the Recipient shall take the necessary action to ensure that any agreement between the Recipient and any Third Party contains a provision to that effect. 19.12 NO ACTIONS OR PROCEEDINGS The Recipient represents that it is not subject to an obligation or prohibition which could restrict or interfere with its performance of this Agreement, and further, that no actions or legal proceedings have been brought and that it has not received any threat of actions or proceedings that could or may restrict or interfere with its performance of this Agreement. The Recipient agrees to inform Canada immediately if any such action or proceedings are threatened or brought during the term of this Agreement. 19.13 ASSIGNMENT The Recipient shall not transfer or assign its rights or obligations under this Agreement without the prior written consent of Canada. Any attempt by the Recipient to assign any of the rights, duties or obligations of this Agreement without Canada’s express written consent shall be deemed invalid. 19.14 WAIVER Any tolerance or indulgence demonstrated by a Party will not constitute a waiver. A Party may only waive its rights under this Agreement in writing. 19.15 CONFLICT OF INTEREST RDIMS No. 2370671 version 5 CANADA – TOWNSHIP OF LANGLEY APGCITIF Page 28 of 44
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No current or former public servant or public office holder or reporting public office holder to whom the Conflict of Interest Act (2006, c. 9, s.2), the Values and Ethics Code for the Public Service and/or the Conflict of Interest and Post-employment Code for Public Office Holders apply, shall derive any direct benefit from this Agreement, unless said individual is in compliance with the applicable provisions of the Act and/or Codes. The Recipient shall inform Canada, in writing, should any real and/or apparent conflict of interest exist or arise that could have a direct impact on Canada’s contribution to the Project. 19.16 INTELLECTUAL PROPERTY The Recipient shall obtain the necessary authorizations, as needed, for the implementation of the Project, from Third Parties who may own the intellectual property rights or other rights in respect of any Projects. Canada shall assume no liability in respect of claims from any Third Party in relation to such rights and to the Agreement. 19.17 CONSEQUENTIAL MEASURES Subject to this Agreement, the Recipient shall independently and at its own cost conclude such arrangements as are necessary to allow the implementation of a Project under this Agreement whenever such Projects affects a municipality, agency, or instrumentality under provincial control. 19.18 LOBBYISTS AND AGENT FEES The Recipient warrants that any person it has hired, for payment, to speak to or correspond with any employee or other person representing Canada on the Recipient behalf, concerning any matter relating to the contribution under this Agreement or any benefit hereunder and who is required to be registered pursuant to the Lobbyists Registration Act R.S. 1985 c. 44 (4th Supplement), is registered pursuant to that Act. The Recipient warrants that no person or entity that is negotiating the whole or any part of the terms of this Agreement receives any payment or other compensation that is contingent upon or calculated upon the contribution hereunder. 19.19 SUCCESSOR This Agreement is binding upon the Parties and their respective administrators and successors. 19.20 OFFICIAL LANGUAGES ACT The Recipient is responsible, in consultation with Canada, for taking the necessary measures to respect the spirit and intent of Official Languages Act, R.S.C. 1985 c. 31 (4th Supp.) to communicate with the public in the official language of their choice. 20.
NOTICES, DOCUMENT AND INFORMATION
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20.1
NOTICE DEEMED GIVEN Any notice, including but not limited to, certificates and declarations provided for under this Agreement shall be delivered in person or sent by registered mail, or facsimile. Said notice shall be deemed to have been delivered on the earlier of either receipt by the addressee or ten (10) business days after mailing if sent by registered mail or the following business day if delivered in person or sent by facsimile.
20.2
DOCUMENTS AND INFORMATION Subject to subsection 19.1 (Notice deemed given), any information and/or documentation provided for under this Agreement may be delivered in person, or sent by mail, facsimile, or by electronic transmission.
20.3
ADDRESSES FOR CANADA AND THE RECIPIENT Any notice, document or information with respect to this Agreement shall be addressed in accordance with the following. A Party may change the address below by notifying the other Party in writing. For Canada:
Any notice to Canada must be sent to: Jim Lothrop, P.Eng Senior Director Highways & Borders Transport Canada Place de Ville, 330 Sparks St. Ottawa (Ontario) Canada K1A 0N5 Telephone No.: (613) 998-1902 Fax No.: (613) 990-9639 E-Mail: [email protected] For The Township of Langley: Colin Wright, P. Eng. General manager, Engineering 20338 65 Avenue Langley, B.C. V2Y 3J1
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Telephone No.: (604) 533-6072 Fax No.: (604) 533.6099 E-Mail: [email protected]
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SIGNATURES This Agreement has been executed on behalf of Her Majesty in Right of Canada by the Minister of Transport, Infrastructure and Communities, and on behalf of the Recipient by [TITLE].
The Township of Langley
HER MAJESTY IN RIGHT OF CANADA
Original signed by: Original signed by:
____________________ [NAME] Minister of Transport, Infrastructure and Communities
____________________ [NAME] [TITLE]
Date: ____________________
Date: ____________________
Witnessed by:
Witnessed by:
__________________
____________________
Date: ____________________
Date:______________________
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SCHEDULE A – ELIGIBLE AND INELIGIBLE COSTS A.1 Eligible Costs Subject to subsection A.2, Eligible Costs will be all direct costs, which are in Canada’s opinion properly and reasonably incurred and paid by an eligible Recipient for an eligible investment under a contract for goods or services necessary for the implementation of a Project, and includes: a) Capital costs, as defined and determined according to generally accepted accounting principles, and relating to the construction, rehabilitation or improvement of highways, roads, bridges/tunnels, railways, multi-modal facilities, grade crossing/separations, customs facilities, connectors to inter-modal facilities, ITS and any other infrastructure Projects that meet the selection criteria; b) Costs related to signage, lighting, highway markings and utility adjustments; c) The costs of joint communication activities (press releases, press conferences, translation, etc.) and road signage recognition set out in the Communication Protocol that will form part of the Agreement; d) All planning (including plans and specifications) design and evaluation costs specified in the Agreement such as the costs of environmental planning, surveying, engineering, architectural supervision, testing and management consulting services, as limited by subsection 4.1 a) ii) of this Agreement; e) The costs of engineering and environmental reviews, including environmental assessments and follow-up programs as defined in the Canadian Environmental Assessment Act and the costs of remedial activities, mitigation measures and follow-up identified in any environmental assessment; f)
The costs of Aboriginal consultations;
g) The costs of developing and implementing innovative techniques for carrying out the Project; h) Recipient audit and evaluation costs as specified in the Agreement; i)
Other costs that, in the opinion of Canada, are considered to be direct and necessary for the successful implementation of the Project and have been approved in writing prior to being incurred, with the exception of Ineligible Costs as noted below.
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A.2
Ineligible Costs Certain costs are not eligible for funding and therefore will not be considered in the calculation of the total Eligible Costs of the Project, including: a) Costs incurred prior to the signature of the Agreement and after the Project Completion Date. b) The cost of purchasing land, associated real estate and other fees, financing charges and interest payments on loans; c) Provincial sales tax and the Goods and Services Tax for which the Recipient or a third party is eligible for a tax rebate and all other costs eligible for rebates; d) Costs which have been shared under other federal statutes or programs; e) Legal fees; f)
General repairs and maintenance of a Project work and related structures unless they are part of a larger capital expansion Project;
g) Compensatory costs due to construction Projects; h) Services or works normally provided by the Recipient incurred in the course of implementation of the Project except those specified as Eligible Costs; and i)
Employee wages and benefits, overhead costs as well as other direct or indirect operating, maintenance and administrative costs incurred by the Recipient, and more specifically costs relating to survey, engineering, design, architecture, supervision, management and other services delivered directly by permanent employees of the Recipient, or of a Crown corporation or corporation owned and controlled by the Recipient except in the case where the Recipient can demonstrate value for money.
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SCHEDULE B – DETAILED PROJECT DESCRIPTION AND CASH FLOW
Total Cost
Project Component
Total Eligible Cost
Project Costs
Description
Canada
Breakdown of Expenditures
Twp. of Langley
2008/09
2009/10
2010/11
No.
th
$
$
$
%
$
%
$
$
$
$51,000,000
$6,200,000
$3,100,000
50%
$3,100,000
50%
--
$4,470,000
$1,730,000
$X,XXX,XXX
$X,XXX,XXX
$X,XXX,XXX
50%
$X,XXX,XXX
50%
$X,XXX,XXX
$X,XXX,XXX
$X,XXX,XXX
50%
$X,XXX,XXX
50%
th
64 Avenue Extension from 204 St. to th 216 St
1
The Project will consist of the construction of approximately 2km of new four-lane municipal roadway extending from 204 St. to 216 St. on the 64th Ave. alignment. A new structure will be constructed to carry the roadway over the Roberts Bank Rail Corridor as well as Glover Rd. (Provincial Highway 10). Another new structure will be built to carry the roadway over North Creek.
2
TOTAL
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SCHEDULE C – COMMUNICATIONS PROTOCOL C.1
General
C.1.1 The Parties agree to carry out joint communications activities and products that will promote opportunities to communicate project milestones with the public in an open, transparent, effective and proactive manner, using appropriate, ongoing, consistent public information material acknowledging the Parties’ contributions. C.1.2 The Committee shall identify appropriate forms for these communications and public information activities and products, and may strike a communications subcommittee responsible for providing advice and support on these matters. If necessary, the sub-committee will create a proposed rollout of communication activities. The sub-committee shall be made up of at least one representative of each Party. C.1.3 All Joint Public Communication Material in relation to this Agreement shall be prepared in both official languages in accordance with the Official Languages Act (Canada), and shall equitably reflect the contributions of the Parties and, where applicable, any Third Party Operators. This includes ensuring equal recognition and prominence where words, logos, symbols and other types of identification are incorporated into materials. C.1.4 All Joint Public Communication Material or signage related to Project Components shall be produced in accordance with the Federal Identity Program. C.1.5 All Joint Public Communication Material concerning this Agreement shall be in a form approved by the Committee. C.1.6 In the event of an election call that affects the riding the project is located in, whether federal, provincial or municipal, no public announcements will be permitted. C.1.7 Costs associated with the development and delivery of joint communications products and activities are an Eligible Cost. All costs are to paid by the Recipient and submitted to Canada for reimbursement in accordance with the funding ratio established in Schedule B. C.2
Operational Notices
C.2.1 Operational notices including but not limited to public calls for tenders, road closure notices, transportation management activities or highway safety activities that may result from the performance of work under this agreement will not require federal approval. C.3
Communication with the Public
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Public information material C.3.1 The Parties may produce information kits, brochures, public reports, and web pages providing information for private-sector interest groups, contractors and members of the public on this Agreement. C.3.2 All draft joint communications products shall be distributed to the partners in sufficient time to allow for appropriate approvals. The lead-time should be, at a minimum, twenty (20) business days prior to the event/publication of material.
Media releases C.3.3 Unless agreed to in advance by the Parties, the Parties shall organize a signing ceremony and a joint media release shall be issued when the Agreement is signed. A release, in which each of the Parties is assigned equal importance, shall be issued in respect of each Project or in combination with other Projects, unless otherwise agreed by the parties. The releases will include quotations from all Parties. The Parties shall agree upon and approve the content of the release. Media conferences, public announcements and other joint events C.3.4 The Parties shall co-operate in organizing media conferences, announcements and official ceremonies and shall respect the order of precedence as established by Canadian Heritage or other mutually agreed upon protocol. Unless agreed to in advance by the Parties, no public announcement concerning a Project covered by this Agreement shall be made by either of the Parties or, where applicable, unless the other Party has been given at least twenty (20) business days notice of the public announcement. C.3.5 Either Party may organize a joint media conference or public ceremony pertaining to a Project. Unless agreed to in advance by the Parties, the Party that does so shall give the other Party reasonable notice of twenty (20) business days, and such notice shall also be given in respect of other joint events or public announcements. Signage C.3.6 the Recipient further agrees to supply, erect and maintain, on the direction of Canada: a) prior to the implementation of any Project under this Agreement, including new construction, Project signs measuring not less than 1.2 metres by 2.4 metres and visible by users traveling in either direction at the beginning and the end of each Project, unless otherwise agreed upon by the Committee, must be erected and maintained until the Project Component Completion Date. Canada will provide the Recipient with the necessary information to construct the signs; b) upon completion of a project and where feasible, the Parties may provide and install, a plaque or permanent sign bearing an appropriate inscription. The RDIMS No. 2370671 version 5 CANADA – TOWNSHIP OF LANGLEY APGCITIF Page 37 of 44
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Committee must approve the design, wording and specifications of such permanent signs. c) where a sign is to be erected by either Party referring to either Party’s financial contribution, it shall include specific reference to the federal contribution herein made; d) except for traffic control or safety devices, no additional signage concerning the Project shall be erected by any Party; e) the costs of any temporary or permanent signage shall be an Eligible Cost.
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Agreement for 64th Avenue Extension from 204 St. to 216 St, Township of Langley 2008/2009-2011/2012
SCHEDULE D – AUDIT FRAMEWORK
D.1
Purpose
The purpose of the audit framework is to provide independent and objective assurances that: a) systems and procedures are in place to ensure that the management process has regard to the terms and conditions of the Agreement and ensures that the financial assistance is granted for Projects that met the eligibility criteria and the applicable obligations or requirements. b) disbursements are supported by a rigorous process that has regard to risk management and verifies that the eligibility requirements are complied with and the costs incurred are allowable.
D.2
Audit Objectives
The objectives of audits conducted under this Agreement are as follows: a) to determine whether funds have been disbursed for the agreed purposes, by examining the payment approval process, including the nature and extent of the supporting documents, the accuracy of the information supplied in respect of claims for payment and the evidence of appropriate authorizations, and such other due diligence reviews as appropriate; and b) to ensure that prompt and timely corrective action is taken in response to audit findings.
D.3
Financial Compliance Audit Criteria
The criteria with which, the auditor will express an opinion as to the recipient’s financial compliance are established by the following sections of Agreement: a) Section 4.1 – Contribution by Canada; b) Section 4.2 – Commitments by the Recipient; c) Schedule A – Eligible and Ineligible Costs; d) Schedule C – Communications Protocol, Section C.1.7; e) Additional sections as deemed necessary by Canada. RDIMS No. 2370671 version 5 CANADA – TOWNSHIP OF LANGLEY APGCITIF Page 39 of 44
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D.4
Auditor’s Report
D.4.1 The auditor should provide an audit opinion as to the recipient’s compliance with the criteria established by Section D3 – Audit Criteria of Schedule D – Audit Framework. D.4.2 The auditor should provide an audit opinion in accordance with Section 5815 – Audit Reports on Compliance with Agreements, Statutes and Regulations of the Canadian Institute of Chartered Accountant’s assurance handbook. D.4.3 The auditor’s report should refer to the eligible criteria and to a Schedule of Eligible Expenditures. D.4.4 Notes attached to the Schedule of Eligible Expenditures should include a general note outlining a general description of the project, a listing of significant accounting policies used to prepare the Schedule of Eligible Expenditures and a note describing what constitutes and eligible and ineligible expenditure.
D.5
Roles and Responsibilities
D.5.1 The independent auditor will have an equal duty of care to both Canada and the Recipient. D.5.2 The Committee shall approve the annual audit plans and the report of the audit findings, and shall ensure that prompt and timely corrective action is taken in response to the audit findings, including the recovery of funds, where applicable D.5.3 The Recipient will be responsible for ensuring that all audits required under the Agreement are carried out and will pay all audit costs, except for those audits specified in Section 11.8.
D.6
Audit Plan
D.6.1 The Committee shall ensure that an annual audit plan is drawn up and includes an overall strategy for the audit as well as a detailed audit plan. The overall strategy would include but is not limited to the following: a) Conduct of preliminary engagement activities that would entail gathering a sufficient understanding of the terms of the engagement, an assessment of the Recipient’s management structure and an assessment of independence;
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b) The overall audit strategy sets the scope, timing and approach to the audit, and guides the development of more detailed audit plans; c) Ascertaining the reporting objectives of the engagement to plan the timing of the audit and the nature of the communications required, and key dates for expected communications with management and those responsible for governance; a) An appropriate assessment of important factors that will determine the focus of the engagement team’s efforts including a determination of a materiality level, preliminary identification of areas where there may be higher risks of material misstatement, preliminary identification of material components and account balances, evaluation of whether the auditor may plan to obtain evidence regarding the effectiveness of internal controls, and identification of recent entity-specific, industry, financial reporting or other relevant developments; b) Deployment of resources for specific audit areas, an assessment of amount of resources required and how the resources will be managed subject to the completion of the auditor’s risk assessment procedures; The detailed component of the audit plan would include but is not limited to the following: a) A description of the nature, timing and extent of planned risk assessment procedures sufficient to assess the risks of material misstatement as determined by the auditor’s understanding of the entity, its environment and assessment of materiality; b) A description of the nature, timing and extent of planned further audit procedures at the assertion level for each material class of transactions, account balances and disclosures as determined by the auditor’s determination of assessed risks; c) Any additional procedures required to carry out the engagement. D.6.2 The Committee shall ensure that all audit reports be available to the public on request. In addition, pursuant to the Treasury Board of Canada’s audit policy, the Federal Co-chair shall ensure that the results of any available audits are provided to the public on request. D.6.3 Any audit conducted within the framework of this Agreement shall be done in accordance with accepted auditing standards such as the rules of the Canadian Institute of Chartered Accountants.
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Agreement for 64th Avenue Extension from 204 St. to 216 St, Township of Langley 2008/2009-2011/2012
SCHEDULE E – INFORMATION E1
General The purpose of Schedule E is to identify the data and information that the Recipient must collect and provide to Canada under this Agreement, as well as the sharing and the use of this information by the Parties. The Parties agree that the collection of accurate and timely data and information is essential to ensure the sound management of this Agreement and to report to Canadians on results and accomplishments.
E2
Annual Report As per section 11.6 (Annual Report), Recipient will provide an Annual Report by July 31st of each Fiscal Year. The report shall include the following: 1. General Overview of Results: A general overview of the results accomplished under the Agreement during the Fiscal Year, including a description of the work completed, expenditures, environmental issues, and any concerns affecting the progress or completion of the Projects Components in the Agreement 2. Copies of all Schedule B revisions signed during that fiscal year 3. Project updates, including: • description, map and status of the work completed on approved Projects • contracts started or completed and the estimated date of completion of contracts • major milestones (e.g. opening of a section of a project, etc.) • maps and photographs of the project locations showing the work in progress and the work completed on approved Projects • communications activities undertaken during the Fiscal Year (e.g. news releases) • environmental monitoring report to confirm that the environmental mitigation measures outlined in the CEAA screening report were implemented, a description of any changes that were required, and a summary of environmental issues encountered during the implementation of the project • report on performance measurement data collected as included in the prospective analysis if applicable 4. A Fiscal Year-end summary table of expenditures under this Agreement; 5. A copy of the annual audit for the Agreement.
E3
Retrospective Evaluation
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Within 7 years following the Final Project Component Completion Date, the Recipient agrees to prepare and submit a retrospective analysis in order to evaluate whether the objectives of the prospective analysis have been met. The retrospective evaluation will follow up on the information contained the Prospective Analysis.
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SCHEDULE F – SOLEMN DECLARATION OF SUBSTANTIAL COMPLETION In the matter of the Canada – [RECIPIENT] [PROJECT] Agreement entered into between Her Majesty in right of Canada, represented by the Minister of Transport, Infrastructure and Communities, and The Township of Langley, represented by the [TITLE], on [DATE]. I, [NAME], a Registered Professional Engineer in the Province of British Columbia do solemnly declare as follows: 1. That I am the [TITLE, DEPARTMENT, RECIPIENT], and as such have knowledge of the matters set forth in this affidavit; 2. That the work identified as the Project in Schedule B of the above-mentioned Agreement has been substantially completed as described in Schedule B, Revision , dated the _______ day of ______ 20__. 3. That the above-mentioned [PROJECT COMPONENT] is open for its intended purpose. As described in subsection 3.2 4. That the work for the [PROJECT COMPONENT]: • was carried out by [PRIME CONTRACTOR], between [START DATE] and [COMPLETION DATE]; • was supervised and inspected by qualified staff; • conforms with the plans, specifications and other documentation for the [PROJECT COMPONENT OR SUB-COMPONENT]; • conforms with applicable environmental legislation, and that appropriate mitigation measures have been implemented; and • conforms with the traffic, construction and engineering guidelines as approved by the Management Committee established under the above mentioned Agreement. Declared at [CITY] , in the [Province or Territory] of [NAME OF PROVINCE / TERIRITORY] this ___________day of _________ 20___.
Engineer’s SEAL (name, title)
____________________________ (Witness name, title)
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ATTACHMENT C
PROJECT AGREEMENT
64th Avenue Rail Overpass at Highway 10 Project
Roberts Bank Rail Corridor Program (RBRC)
TransLink BC Ministry of Transportation and Infrastructure Port Metro Vancouver Township of Langley
February 24, 2009
2904702.1
Project Agreement 64th Avenue Rail Overpass at Highway 10 (RBRC) Project
Roberts Bank Rail Corridor Program
Roberts Bank Rail Corridor Program
PROJECT AGREEMENT 64th Avenue Rail Overpass at Highway 10 Project (the “Project”) THIS AGREEMENT made the ________day of _______________, 2009 BETWEEN: SOUTH COAST BRITISH COLUMBIA TRANSPORTATION AUTHORITY, having an office at 1600 - 4720 Kingsway, Burnaby, B.C. V5H 4N2 (“TransLink”) AND: HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF BRITISH COLUMBIA as represented by the Minister of Transportation and Infrastructure, having an office at 940 Blanshard Street, PO Box 9850 Stn Prov Govt, Victoria, B.C. V8W 9T5 (“BC MoT)”) AND: THE CORPORATION OF THE TOWNSHIP OF LANGLEY, having an office at 4914 221st Street, Langley, B.C. V3A 3Z8 (the “Township”) AND: VANCOUVER FRASER PORT AUTHORITY, having an office at 100 The Pointe, 999 Canada Place, Vancouver, B.C. V6C 3T4 (“Port Metro Vancouver”) WHEREAS A. The British Columbia Ministry of Transportation and Infrastructure (“BC MoT”), the South Coast British Columbia Transportation Authority (“TransLink”), Vancouver Fraser Port
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Project Agreement 64th Avenue Rail Overpass at Highway 10 (RBRC) Project
Roberts Bank Rail Corridor Program
Authority (“Port Metro Vancouver”) and the Township of Langley (“Township”), herein called the Parties, along with other agencies identified below, wish to promote international trade through a program, funded in part by the Asia-Pacific Gateway and Corridor Initiative, that provides a comprehensive program of road/rail grade separations on the Roberts Bank Rail Corridor (the “RBRC Program”). B. The RBRC Program is intended to facilitate and improve the movement of rail freight to and from the Roberts Bank marine terminals through the communities of Delta, Surrey, Langley City and the Township of Langley while providing relief for those communities and road users affected by the rail transport and enhancing movement of people and goods in those communities. C. The RBRC Program Partners include Transport Canada, BC MoT, TransLink, Port Metro Vancouver, the Township, the Corporation of Delta, the City of Surrey, the City of Langley, the British Columbia Railway Company, the Canadian Pacific Railway Company, the Canadian National Railway, and the BNSF Railway. The RBRC Program Partners have agreed to participate in and to contribute to the RBRC Program as described in an “Agreement-inPrinciple” signed on June 28th, 2007 (the “AIP”) under which TransLink, on behalf of the partners under the RBRC Program, has been appointed to develop, coordinate and implement, administer and manage the overall delivery of the RBRC Program. D. TransLink has appointed a program manager for the RBRC Program (the “RBRC Program Manager”) who will undertake the day to day activities of the RBRC Program. E. The 64th Avenue Highway 10 Road Rail Grade Separation Project (the “Project”) is part of the RBRC Program, and will separate rail and vehicular traffic thereby facilitating and improving the movement of people and goods on the road network and the movement of rail freight to and from the Roberts Bank marine terminals through the communities of the City of Langley and the Township of Langley. F. TransLink wishes to improve the Major Road Network and promote the movement of goods and people through participation in the Project. G. BC MoT wishes to ensure it maintains a safe and efficient highway system through the delivery of the Project. H. Port Metro Vancouver wishes to participate in the Project in order to improve and enhance the movement of imported and exported goods to and from the marine port facilities at Roberts Bank along the Roberts Bank rail corridor. I. The Township wishes to participate in the Project in order to provide relief for its citizens through the grade separation of rail and vehicular traffic and to improve public safety, emergency vehicle access and the movement of goods and people in the surrounding communities.
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Project Agreement 64th Avenue Rail Overpass at Highway 10 (RBRC) Project
Roberts Bank Rail Corridor Program
J. Accordingly, the Parties wish to meet the objectives of the RBRC Program through the overpass and associated road improvements described in this Agreement by the cost-effective planning, design, construction and funding of the Project. The Parties agree to cooperate in the Project with a shared sense of purpose, mutual respect and trust. K. The Parties agree that the Township will be responsible for the day to day delivery and implementation of the Project in accordance with the terms and conditions of this Agreement including land acquisition and consolidation, procurement, design and construction. IN CONSIDERATION of the promises and covenants contained in this Agreement the Parties hereby agree as follows: 1.
DEFINITIONS 1.1
In this Agreement, the following terms will have the following meanings:
(a)
“Approval Matrix” means the approval matrix attached as Schedule “A” to this Agreement;
(b)
“Agreement-in-Principle” means the agreement-in-principle dated for reference June 27, 2007, in which Transport Canada, BC MoT; TransLink, Port Metro Vancouver; the Corporation of Delta; the City of Surrey; the City of Langley; the Township; British Columbia Railway Company; Canadian Pacific Railway; Canadian National Railway; and, BNSF Railway agreed to participate in and to contribute to the RBRC Program, including this Project, and under which TransLink is appointed to manage the overall delivery of, and to develop, coordinate and implement, the RBRC Program;
(c)
“BC MoT” means Her Majesty the Queen in right of the Province of British Columbia as represented by the Minister of Transportation and Infrastructure;
(d)
“Communications” includes media releases, media updates, public responses, printed materials, information sessions and staged events;
(e)
“Communications Plan” means the plan which is approved as part of the Project Implementation Plan and which shall be consistent with the RBRC Program communications plan;
(f)
“Commencement Date” means the date of reference of this Agreement;
(g)
“Conceptual Plan” means the plan for the Project attached as Schedule “B” to this Agreement as it may be amended in writing from time to time during the Term;
(h)
“Contract” means the written agreement for the Design, Construction and completion of the Project that will be made between the Township and the successful Proponent in accordance with the terms of the RFP;
(i)
“Contractor” means the person who enters into the Contract with the Township;
(j)
“Contribution Amount” means, subject to amendment in accordance with this Agreement, the contribution for each Party to the Project as identified and set out in
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Project Agreement 64th Avenue Rail Overpass at Highway 10 (RBRC) Project
Roberts Bank Rail Corridor Program
Schedule “C” to this Agreement for an aggregate total amount not to exceed $51 Million or such other amount or amounts as the Parties hereto may agree in writing; (k)
“Construction” means all things other than Design necessary to complete the Work;
(l)
“Design” means the compendium of drawings, plans, specifications and other project material produced by a professional engineer or other professional that is lawfully authorized to provide design services in British Columbia, to calculate, determine and define the items of Work to be constructed together with the labour required to prepare such materials;
(m)
“District Transportation Manager” means the District Transportation Manager of the Lower Mainland District of the Ministry of Transportation and Infrastructure;
(n)
“Document of Requirements” means the document described in Subsection 6.1(b) as may be amended in writing from time to time during the Term;
(o)
“Engineer” means a person who is authorized, registered or licensed under the Engineers and Geoscientists Act to provide professional engineering services in British Columbia;
(p)
“Evaluation Committee” means the RFP evaluation committee as described in Subsection 6.1 (c) ;
(q)
“Funding Partner Representatives” means representatives of those agencies identified in Schedule “C” that are contributing to the Project;
(r)
“G.S.T.” means the goods and services tax imposed under the Excise Tax Act (Canada);
(s)
“Improvement(s)” includes anything made, constructed, erected, built, altered, repaired or added to, in, on or under Project Land, and attached to it or intended to become a part of it, and also includes any clearing, excavating, digging, drilling, tunnelling, filling, grading or ditching of, in, on or under Project Land;
(t)
“Major Road Network” has the meaning set out in the SCBCTA Act;
(u)
“Milestone Dates” means the milestone dates set out in Schedule “D” to this Agreement as they may be amended in writing by the Parties hereto;
(v)
“Multi-Modal Use” means the safe, uninterrupted, and unobstructed use of a highway including travelled lanes, sidewalks, pathways and shoulders by all forms of traffic including automobiles, bicycles, motorcycles, buses, trucks and pedestrians;
(w)
“Owner’s Engineer” means Delcan Corporation, or any other person approved in advance in accordance with the Approval Matrix, who has been retained to provide engineering services for the Project on behalf of the Township;
(x)
“Owner Partner Representatives” means representatives of those agencies that will own and/or have jurisdiction over the Project’s infrastructure at completion, being BC MoT, Township and TransLink for its interest in the Major Road Network and transit services within the Project;
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Project Agreement 64th Avenue Rail Overpass at Highway 10 (RBRC) Project
Roberts Bank Rail Corridor Program
(y)
“Parties” means BC MoT, TransLink, Port Metro Vancouver and Township.
(z)
“Port Metro Vancouver” means Vancouver Fraser Port Authority;
(aa)
“Process Advisor” means the person who is appointed by the Township to review the procurement process for the Project;
(bb)
“Produced Material” means all accounting records, findings, software, data, specifications, drawings, reports, documents and other material produced by the Contractor (or any of its employees) or any of its subcontractors (or its employees) as a result of the Contract including all such material which is in existence prior to the start of the Term or developed independently of the Contract;
(cc)
“Project” means the Design and Construction of Improvements shown on the Conceptual Plan together with all associated works and infrastructure, the scope of which is described in Schedule “E” to this Agreement;
(dd)
“Project Budget” means the project budget described in Schedule “C” to this Agreement as it may be amended in accordance with the terms of this Agreement;
(ee)
“Project Change Request” means the written request referred to in Section 8.1;
(ff)
“Project Costs” means the actual eligible costs of completing the Project as defined in Schedule “C”;
(gg)
“Project Implementation Plan” means the plan described in Subsection 6.1(a) as maybe amended in writing from time to time during the Term;
(hh)
“Project Manager” means Doug Hyde or any other person approved in advance in accordance with the Approval Matrix, who has been appointed or retained by the Township to provide project management services for the Project on behalf of the Township;
(ii)
“Project Land” means the land upon which the Project is constructed;
(jj)
“Project Organization and Human Resource Plan” means the organization and identification of human resources for the Project identified in Section 5;
(kk)
“Project Procurement Plan” means the procurement plan identified in Section 5 and approved in accordance with the Approval Matrix;
(ll)
“Project Schedule” means the detailed schedule for the Design, Construction and completion of the Project set out in the Project Implementation Plan, which will be consistent with the Milestone Dates;
(mm) “Project Scope” means the description in Schedule “E” to this Agreement and as generally shown on the Conceptual Plan in Schedule “B” to this Agreement that will be more fully developed and designed in accordance with the Project Implementation Plan and the Document of Requirements all in accordance with this Agreement; (nn)
“Property Costs” means Project Costs relating to the acquisition of real property;
(oo)
“Project Steering Committee” means the committee established by the RBRC Program as described in Schedule “F”;
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Project Agreement 64th Avenue Rail Overpass at Highway 10 (RBRC) Project
Roberts Bank Rail Corridor Program
(pp)
“Proponent” or “Proponents” means a person or persons who submit a proposal in response to the RFP;
(qq)
“Province” means Her Majesty the Queen as represented by the Province of British Columbia;
(rr)
“RBRC Program” means the program, funded in part by the Asia-Pacific Gateway and Corridor Initiative, that provides a comprehensive program of road/rail grade separations on the Roberts Bank rail corridor (the “RBRC Program”), of which the Project is a part, and which is intended to facilitate and improve the movement of rail freight to and from the Roberts Bank marine terminals through the communities of Delta, Surrey, Langley City and the Township of Langley while providing relief to those communities from the rail transport and enhancing the movement of people and goods in those communities;
(ss)
“RBRC Program Manager” means Collings Johnston Inc or any other person appointed by TransLink to undertake the day to day management activities of the RBRC Program on behalf of the RBRC Partners;
(tt)
“RBRC Program Partners” means each of the organizations that signed the Agreement in Principle;
(uu)
“RFP” means the Request for Proposals for the Project issued by the Township;
(vv)
“SCBCTA Act” means the South Coast British Columbia Transportation Authority Act;
(ww) “Substantial Completion” means the Work has reached the state where it is ready for Multi-Modal Use or is being used for the purpose intended, confirmed as such by expert opinion of the Owner’s Engineer, and is so certified by the Project Manager and without restricting the generality of the foregoing, includes all of the following: (i)
final paving of all roads;
(ii)
full operation of all structures and drainage systems;
(iii)
full operation of all traffic lighting and signalization;
(iv)
placement of all temporary pavement markings and layout for all permanent pavement markings;
(v)
erection of all regulatory and guide signage; and
(vi)
installation of all median and roadside barriers and other safety devices,
with the exception of defects and deficiencies and incomplete works that do not affect its appearance or impair its use provided the total value of all incomplete, defective and deficient Work does not exceed 3% of the Project Budget set out in Schedule “C” to this Agreement; (xx)
2904702.1
“Term” means the period of time as set out in Section 3.5;
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Project Agreement 64th Avenue Rail Overpass at Highway 10 (RBRC) Project
Roberts Bank Rail Corridor Program
(yy)
“Total Completion” means that the entire Work (including the grant of a nonexclusive, non-transferable, perpetual, irrevocable, royalty-free, worldwide licence of the as-built drawings along with all moral rights therein from the Contractor to the Township and MoT) except for those items which are or may be the subject of a warranty claim, has been performed to the requirements of the Contract and is so certified by the Contractor through the Contractor’s Engineer;
(zz)
“Township” means the Corporation of the Township of Langley;
(aaa)
“TransLink” means the South Coast British Columbia Transportation Authority;
(bbb) “Work” or “Works” means everything to be provided and performed by the Township in relation to the Project including the provision of all professional, technical, skilled and unskilled labour, services, material, equipment and including, without limitation, all Design and Construction, and any action as necessary for the Contractor, subcontractors and other contractors to complete and perform their respective obligations arising from and in accordance with the terms and conditions of the Contract or contracts. 1.2
The schedules, that shall form part of this Agreement and are attached hereto, are as follows: Schedule “A” — Approval Matrix; Schedule “B” — Conceptual Plan; Schedule “C” — Project Costs, Contribution Amounts and Project Budget; Schedule “D” — Milestone Dates; Schedule “E” — Project Scope;
2.
SCBCTA ACT
2904702.1
2.1
The Township, BC MoT and Port Metro Vancouver acknowledge that TransLink may, by bylaw, establish standards for all or any part of the Major Road Network, including the Project, in accordance with the SCBCTA Act.
2.2
Prior to completion of the Project, the Township’s staff will recommend to the Township Council that applicable bylaws be amended to formally designate ________________ [name of Road] as a truck route, to be effective no later than the date on which the Project is open to the public.
2.3
If the Township formally designates ___________ [name of Road] as a truck route, TransLink staff will recommend to the TransLink Board of Directors that ________ [name of Road] from _________ to _________ (including __________) and ________ [name of Road] from _________ [name of Road] to __________ [name of Road] be formally designated under section 18 of the SCBCTA Act as part of the Major Road Network.
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Project Agreement 64th Avenue Rail Overpass at Highway 10 (RBRC) Project 3.
Roberts Bank Rail Corridor Program
PROJECT DELIVERY 3.1
The Township will deliver the Project in accordance with the terms of this Agreement.
3.2
The Township represents and warrants that it has, or will retain, the skills and experience necessary to carry out the Project in a professional, competent and diligent manner.
3.3
The Township will undertake and deliver the Project to completion, or will cause its Contractor to undertake and deliver the Project to completion, in accordance with this Agreement and, without limitation:
(a)
in accordance with Schedule “E” to this Agreement for the Project Scope;
(b)
in a professional, competent, timely and diligent manner, in accordance with acceptable standards and specifications set out in this Agreement;
(c)
in compliance with all applicable laws, statutes, regulations, by-laws, and directions of all governmental and statutory authorities issued under lawful authority; and
(d)
achieve Substantial Completion by 2012 or such later date as agreed to by the Parties in accordance with the Approval Matrix. 3.4
In order to deliver the Project on behalf of the Parties in accordance with this Agreement, and without limiting the foregoing, the Township:
(a)
will comply with and enforce all agreements that it enters into to have the Project delivered;
(b)
will ensure all consents, permits, licences, certificates and approvals, including an environmental assessment in accordance with the Canadian Environmental Assessment Act, necessary to complete the Project are obtained prior to commencement of Construction;
(c)
will ensure proper implementation of the Project Implementation Plan;
(d)
will ensure the Project Manager facilitates review and approval of the Project deliverables in accordance with the Approval Matrix; and
(e)
will ensure that:
2904702.1
(i)
the Project Manager promptly advises the Parties of any changes that may have a significant impact on the scope, schedule or budget of the Project;
(ii)
access to all land that is impacted by the Construction of the Project is maintained;
(iii)
the Project Manager advises the Parties promptly upon receiving notice from the Contractor of the anticipated date of full Multi-Modal Use;
(iv)
the Parties have access to the Project at all reasonable times to carry out their obligations under this Agreement and to ensure compliance with the Contract; and
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Project Agreement 64th Avenue Rail Overpass at Highway 10 (RBRC) Project (v)
Roberts Bank Rail Corridor Program
if required, a reference plan under section 107 of the Land Title Act is prepared and deposited in the land title office in order to dedicate all highways.
3.5
The term of this Agreement commences on the Commencement Date and terminates on the date that all warranty and any other obligations under the Contract are fully performed or such earlier date provided for in this Agreement.
3.6
The Township:
(a)
will develop the Project Implementation Plan, the Document of Requirements and the Project Budget; and
(b)
will complete the Project in accordance with this Agreement. 3.7
The Township will ensure monthly progress reports describing the status of the Project are provided to the Project Steering Committee 15 days following the end of each month or such other period of time that the Parties may direct. The Project Steering Committee will review the progress reports for general conformance with the RBRC Program. The Parties will review for compliance with the Project and this agreement. The monthly progress reports will contain the following:
(a)
progress of Design and Construction to date in relation to and compared against the Project Schedule and the likelihood of meeting each of the Milestone Dates;
(b)
an up-to-date Project Schedule, showing dates on which Milestones Dates have been achieved, indicating any variances, and showing projected dates for future Milestone Dates;
(c)
a brief description of Project Work planned for the next month;
(d)
an up-to-date summary of actual Project Costs, forecast of costs to Total Completion, and variances, if any, from the Project Budget;
(e)
any procurement undertaken for the Project;
(f)
any material communications undertaken for the Project;
(g)
any land acquisition for the Project;
(h)
any required approvals;
(i)
any safety issues encountered;
(j)
quality management and assurance status;
(k)
risk management and monitoring and any actions taken or recommended to manage or mitigate risks;
(l)
a description of any significant difficulties encountered, any anticipated claims for extra Project Costs, or any other actual or anticipated deviations from Project Scope, Project Budget, Project Schedule, or other plans; and
(m)
any other matters requested by the Parties.
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4.
3.8
The Parties agree that a Project Steering Committee will review all key Project decisions for general conformance with the RBRC Program as described in the Approval Matrix in accordance with the terms of reference set out in Schedule “F” to this Agreement.
3.9
Each of the Township, TransLink and BC MoT will appoint an Owner Partner Representative who will have the authority to take any actions required and to make timely decisions and approvals on behalf of his or her respective agency for this Project as described in the Approval Matrix.
PROJECT MANAGER AND OWNER’S ENGINEER 4.1
The Township will ensure that the Project Manager and the Owner’s Engineer undertake and complete all of the tasks required of them under this Agreement at the times set out in this Agreement for the completion of such tasks. Without limitation, the Township will ensure that the Project Manager:
(a)
administers all contracts in relation to the Project;
(b)
confirms the accuracy of invoices for payment within the approved Project Budget and Project Schedule;
(c)
recommends certification of Substantial Completion and Total Completion to the Township, BC MoT and TransLink; and
(d)
after acceptance of the recommendation in Subsection 4.1 (c), issues certification of Substantial Completion and Total Completeion. 4.2
5.
Roberts Bank Rail Corridor Program
If, at any time during the Term, either the Project Manager or the Owner’s Engineer is unable to undertake his or her duties, the Township will notify the Owner Partner Representatives and, with the approval of Owner Partner Representatives in accordance with the Approval Matrix, the Township will immediately appoint or retain another person to undertake the duties of the Project Manager or the Owner’s Engineer as applicable.
RBRC PROGRAM MANAGER 5.1
(a)
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The primary purpose of the RBRC Program Manager is to undertake the day-today activities of the program on behalf of the Partners Committee. Specific responsibilities related to this Project include: acting as secretariat to the Project Steering Committee: (i)
ensuring that the Project Steering Committee functions in an effective and efficient way;
(ii)
coordinating distribution and collection of Project and relevant RBRC Program documentation to and from relevant parties in a timely manner; and
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(b)
6.
Roberts Bank Rail Corridor Program
ensuring that the items requiring attention and decision from the RBRC Propgram Partners are expediently brought forward to the attention of the Parties.
providing independent oversight and verification of Project Costs and financial accountability throughout lifetime of the project: (i)
verifying Project Costs, assessing their conformance with overall RBRC Program objectives and making a recommendation for payment to individual RBRC Program Partners providing funding to the Project, following the agreed-upon principles for Project Costs as described in Schedule “C”.
(ii)
ensuring that the Project, where possible will benefit from available economies of scale during RBRC Program implementation; and
(iii)
establishing and maintaining a financial planning framework to facilitate RBRC Program and Project cash flow planning and financial tracking to the Project.
PROJECT IMPLEMENTATION PLAN AND DOCUMENT OF REQUIREMENTS 6.1
The Project Manager will, before issuance of the RFP, in consultation with the Owner’s Engineer and Process Advisor, provide the Project Procurement Plan to the Owner Partner Representatives for approval in accordance with the Approval Matrix. This Project Procurement Plan will include:
(a)
the RFP including the Document of Requirements, as described in Section 5.2 (b);
(b)
evaluation methodology and scoring process;
(c)
establishment of the Evaluation Committee;
(d)
detailed approval processes and schedule for the procurement, in accordance with the Approval Matrix;
(e)
contract management; and
(f)
cover letter by the Process Advisor indicating their approval of the processes and evaluation framework outlined in the Procurement Plan. 6.2
The Project Manager will, before award of the Contract and in consultation with the Owner’s Engineer prepare and provide the Project Implementation Plan for implementation of the Project to the Project Steering Committee for review and to the Owner Partner Representatives for approval in accordance with the Approval Matrix. The Project Implementation Plan will include the following:
(a)
Project background, overview and organization;
(b)
the Document of Requirements, prepared in cooperation and consultation with the engineering staff for the Township, TransLink and BC MoT, that will address:
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(i)
Project Scope;
(ii)
performance criteria and technical requirements;
(iii)
design criteria ,engineering standards and specifications;
(iv)
quality management;
(v)
risk management and mitigation;
(vi)
traffic management;
(vii)
bonding and insurance requirements;
(viii)
safety audit; and
(ix)
roles and responsibilities;
(c)
Project Budget and Reporting;
(d)
Project Schedule with Milestone Dates and work breakdown structure;
(e)
critical success factors;
(f)
Project Procurement Plan;
(g)
change management plan;
(h)
traffic safety strategy acceptable to the District Highway Manager;
(i)
Contract management;
(j)
Communications Plan; and
(k)
Project Organization and Human Resource Plan. 6.3
No review or approval of the Project Implementation Plan will be construed as evidence that the Project Implementation Plan or any part thereof is complete, satisfactory or is in compliance with the Contract if there is subsequent evidence to the contrary that it is not.
6.4
the Township acknowledges and agrees that:
(a)
the Township will ensure the Project Manager delivers the Procurement Plan, RFP and the Project Implementation Plan to the Project Steering Committee and the Owner Partner Representatives so that there is adequate time to review, comment or and approve as applicable based on the Approval Matrix, understanding that the Parties agree to act expeditiously in their review;
(b)
the RFP will not be issued until the Project Procurement Plan has been reviewed and approved in accordance with the Approval Matrix;
(c)
the Document of Requirements will be included in the RFP; and
(d)
the award of Contract will not occur until the Project Implementation Plan has been reviewed and approved in accordance with the Approval Matrix.
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PROCUREMENT PROCESS AND AWARD OF CONTRACT 7.1
The Township will ensure that all procurement processes and procedures, including the RFP, are fair, equitable, open, transparent and competitive and that all proponents will be afforded a full and fair opportunity to compete. The Township will prepare a Project Procurement Plan as described in Section 5.1 for review and approval in accordance with the Approval Matrix.
7.2
The Township will appoint a process advisor who will oversee the procurement process to ensure that the process is fair, equitable, open, transparent and competitive and that all proponents will be afforded a full and fair opportunity to compete.
7.3
The Township will prepare and issue the RFP which will:
(a)
ensure that only those persons who have been short-listed under the Request For Expressions of Interest are permitted to submit a proposal in response to the RFP;
(b)
provide for the consent of surety, letters of credit and all other submittals and Contract security documents that must be delivered to the Township with the proposal; and
(c)
include the criteria for the evaluation of all compliant proposals made in response to the RFP. 7.4
The Township will ensure that the Contract:
(a)
includes insurance and bonding requirements satisfactory to the Township and BC MoT;
(b)
requires the Contractor to retain suitably qualified engineer(s);
(c)
allows for approved Project Change Requests;
(d)
requires the Contractor to provide the Project Manager with not less than 30 days notice of the anticipated date of Multi-Modal Use;
(e)
requires the Contractor to obtain, prior to commencement of Construction, all necessary consents, permits, licences, certificates, approvals and environmental permits required by competent governmental authorities that are necessary for the completion of the Project; and
(f)
requires the Contractor (or its employees) and any subcontractor (or its employees) to deliver the Produced Material to the Township and BC MoT together with all documents satisfactory to the Township granting the non- exclusive, non-transferable, perpetual, irrevocable, royalty-free, worldwide licence to use the Produced Material to the Township and to BC MoT. 7.5
The Project Manager will have the resulting proposals reviewed and approved in accordance with the Project Procurement Plan and Approval Matrix and will:
(a)
reject all proposals that do not meet the mandatory criteria set out in the RFP, and
(b)
evaluate and rank all compliant proposals according to the evaluation criteria.
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8.
Roberts Bank Rail Corridor Program
7.6
Subject to the Process Advisor’s opinion obtained by the Township that the procurement process has been fair, equitable, open, transparent and competitive, the evaluation and ranking of the proposals and award of the Contract will be reviewed and approved by the Parties in accordance with the Approval Matrix whereupon the Project Manager will forward to the Township the Evaluation Committee’s recommendation and Owner Partier Representatives’ approval and , if accepted by the Township Council, the Township will negotiate the Contract with the successful proponent in compliance with the process described in the RFP.
7.7
Upon the successful negotiation of the Contract, the Project Manager will advise the Owner Partner Representatives and the RBRC Program Manager of that fact and, upon approval by the Owner Partner Representatives, and if accepted by the Township Council, the Township will, in accordance with the RFP, ensure that the Contract is executed by the Contractor and the Township.
7.8
The Parties acknowledge that it is their intention to deliver the Project utilizing a design- build process, however, if no acceptable proposal is submitted in accordance with the RFP, the Parties will consider delivering the Project by another delivery method and, if they determine to do so, another RFP or other appropriate procurement process will be issued by the Township and the provisions of this Section will apply to the issuance of that subsequent RFP or procurement process.
COMPLIANCE REVIEW AND QUALITY MANAGEMENT 8.1
The Owner’s Engineer will review the Project to ensure it is being completed in accordance with the Document of Requirements and the Contract and the Owner’s Engineer will provide an opinion, in writing, to the Project Manager on that matter and if the Owner’s Engineer determines that the Project is not being completed in accordance with, the Document of Requirements and the Contract, the Owner’s Engineer will so advise the Project Manager who, in turn, will so advise the Project Steering Committee and the Owner Partner Representatives for review and approval in accordance with the Approval Matrix and:
(a)
if the Owner Partner Representatives approve an alternate method of completing the Project, it will authorize the Project Manager to complete the Project in that manner and the Project Implementation Plan, the Document of Requirements and the Contract will be amended accordingly; or
(b)
if the Owner Partner Representatives do not approve a proposed alternate method of completing the Project, the Project Manager will ensure the Contractor completes the Project in accordance with the Document of Requirements and the Contract.
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8.2
Nothing in Section 7.1 will be construed to relieve the Township from its obligations to have the Project delivered in accordance with this Agreement.
8.3
The Township will ensure that the Contract requires a quality management plan prepared or approved by an independent consultant and that includes compliance
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reviews of Design and Construction of the Project to ensure compliance with the design and engineering standards. The Project Manager will provide the quality management plan to the Owner Partner Representatives for review for general compliance with the RBRC Program. 9.
CHANGE MANAGEMENT Project Change Requests 9.1
During the Term, any Party may request a change to the Project Scope, the Project Schedule, the Project Budget, the Project Implementation Plan, the Document of Requirements or the Contract. That Party must prepare a Project Change Request with a full description of the proposed change, the reason for requesting the change, a proposed method of adjustment for, or an amount of adjustment to, the Project Budget and the Project Schedule, if any, and any other proposed consequential adjustments to the Contract and deliver it to the Project Manager.
9.2
The Project Manager will review the Project Change Request and determine:
(a)
the impacts on the Contract, the Document of Requirements, the Project Implementation Plan, the Project Budget, the Project Scope and the Project Schedule;
(b)
the options available and the preferred option to mitigate or avoid such negative impacts;
(c)
the steps the Contractor or any other person must take to mitigate or avoid such impacts; and
(d)
the cost of the proposed change.
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9.3
The Project Manager will advise the Parties of the Project Change Request and its assessed impact on the Project.
9.4
If the Parties agree that the Project Change Request should be considered further, subject to Section 9.5, the Project Manager will forward the request to the Project Steering Committee who will review the Project Change Request for general conformance to the RBRC Program and will provide any comments and advise of any non-conformances to the Project Manager, who will then advise the Parties of such feedback. .
9.5
Any material change to the Project Scope, Project Budget or Project Schedule will require the approval of the Parties in accordance with the Approval Matrix.
9.6
If a Project Change Request is substantially caused by or required by one Party, after considering the Project Change Request, the Parties may decide to approve the Project Change Request provided that the Party or Parties benefiting from the Project Change Request first agrees to bear all of the costs that are incurred as a result of that Project Change Request at no cost to the Project.
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10.
Roberts Bank Rail Corridor Program
9.7
If the Project Change Request is approved and it changes Project Costs, the Parties agree to amend the Project Budget and Contribution Amounts by each Party as required in accordance with Section 10.
9.8
If the Project Change Request is approved, the Township will amend the Document of Requirements, Project Implementation Plan and the Contract, as applicable, to reflect the approved change to the Project Scope, the Project Budget, Project Contributions and the Project Schedule.
COST OVERRUNAS AND ABANDONMENT Cost Overruns 10.1
The Parties will use their best efforts to keep the Project Costs within the Project Budget, however, if at any time Project Costs are forecast to exceed the Project Budget, the Parties may jointly agree to amend the Project Scope to accommodate the cost increase so that Project Costs are kept within the Project Budget while ensuring that the objectives of the RBRC Program and of the Project are reasonably met
10.2
If the Parties are unable to amend the Project Scope to keep the Project Costs within the Project Budget while ensuring that the objectives of the RBRC Program and of the Project are reasonably met, the Parties may request additional funds from either or both the RBRC Program or their respective agencies as follows:
(a)
request the RBRC Manager for additional funds from the RBRC Program, in which case the RBRC Manager will request the RBRC Program Partners to evaluate the request and review it for general conformance to the scope, budget and costing of the RBRC Program, and determine availability of funds;
(b)
request additional funding from their respective agencies and, if such request for funding is approved, the Parties may agree to amend the Project Budget and contribute additional funding to cover the overruns in their respective proportionate share.
10.3
If no additional funds are available from the RBRC Program or the Parties’ respective agencies and the Project Cost cannot be reasonably reduced without significantly impacting Project and RBRC Program objectives, the Parties will:
(a)
consider whether any of the Program or Project objectives could be amended in order to reduce costs to meet the Project Budget in which case the RBRC Manager will request the RBRC Program Partners to evaluate the request and review it for general conformance to the scope, budget and costing of the RBRC Program; or
(b)
if it is prior to award of the Construction Contract, agree to abandon the Project in which case each Party will pay a prorated amount of its Contribution Amount of the Project Costs incurred up to and including the date of the abandonment of the
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Project and the obligations of the Parties under this Agreement will be at an end; and (c)
if it is after the award of the Construction Contract, the Township and BC MoT may agree to pay for overruns of the Project Costs beyond the Project Budget provided the overruns are associated with delivery and do not result from Project Change Requests by another Party.
10.4
If additional funds are obtained from the RBRC Program or the Parties’ respective agencies or if scope is reduced to meet the Project Budget, the Township will amend other documents in accordance with Section 9.8 and the RBRC Program Manager will be advised of the amendments.
Abandonment, Termination 10.5
11.
If the Contract has not been awarded, the Project may be abandoned as a result of an event beyond the control of the Parties provided that each Party will pay a prorated amount of its Contribution Amount of the Project Costs incurred up to and including the date of the abandonment of the Project and, in which case, the obligations of the Parties under this Agreement will be at an end.
DESIGN REVIEW 11.1
The Project Manager will provide the Owner Partner Representatives with written notice of any impending Design review no later than 14 days prior to the Contractor’s submittal due date pursuant to the Design submittal schedule and the Owner Partner Representatives will provide written feedback to the Township no later than 14 days after receiving the complete Design review package provided that:
(a)
the timing of the Design review is pursuant to the Design submission schedule as agreed between the Contractor and the Township, as may be amended from time to time between the Contractor and the Township;
(b)
the Township has, upon amendment of the Design review schedule, forthwith provided the Owner Partner Representatives with a copy and, in any event, provided the most current Design submission schedule no later than 14 days prior to any amended submission date therein or as may otherwise he agreed in writing by the Contractor and the Township; and
(c)
the Township implements and adheres to a communication process with respect to Design reviews that includes the following steps:
2904702.1
(i)
provides an e-mail notice to the Owner Partner Representatives no less than 14 days before the Design submission from the Contractor is due;
(ii)
the Township will forthwith forward the complete Design submittal package from the Contractor in the appropriate electronic format and/or hardcopy to the Owner Partner Representatives along with a covering letter from the Township;
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12.
13.
Roberts Bank Rail Corridor Program
(iii)
the covering letter in Subsection (ii) above will provide a summary of what portion of the Design is to be reviewed, provide a list of all documents within the package to be reviewed and specify the date by which the Township requires a written response from the Owner Partner Representatives; and
(iv)
for significant Design reviews, at the request of the Owner Partner Representatives, the Project Manager will organize a Design review meeting between the Contractor and the Owner Partner Representatives. Such meetings will be scheduled to permit reasonable time for review of the Contractor’s Design submission prior to the meeting and to allow sufficient time for written feedback within 14 days as aforementioned in this Section.
PROJECT LANDS AND DISPOSITION OF SURPLUS LANDS 12.1
The Parties will make available for the Project any lands owned prior to the Commencement Date that are designated in whole or in part as Project Land, at no cost to the Project where those lands are determined to be necessary for the Project by the Owner Partner Representatives.
12.2
If any lands that are not owned by any Party are determined to be necessary for the Project by the Owner Partner Representatives, the Township will make best efforts to acquire the lands in a timely manner.
12.3
The provisions of this Section will survive and continue to apply after the termination of this Agreement.
PROJECT COMPLETION 13.1
On Substantial Completion, the Township will ensure that:
(a)
the Owner’s Engineer completes all reviews required under Section 8.1 and obtains all required certifications and advises the Township that Substantial Completion has been achieved;
(b)
all compliance reviews to be complete at Substantial Completion in accordance with the Contract have been completed; and
(c)
the Project is ready for full Multi-Modal Use. 13.2
On Total Completion, the Township will:
(a)
ensure that all terms and conditions of the Contract have been fully performed (subject only to warranty obligations) and that all components of the Project have been fully completed;
(b)
ensure that all compliance reviews pursuant to the Contract are complete and that all non-compliances, defects, deficiencies and incomplete work have been rectified or completed (except for warranty obligations);
(c)
obtain all required certifications from the Contractor with respect to Total Completion;
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(d)
deliver to each Owner Partner Representative as they may require, a copy in both paper and electronic formats of autoCAD drawings prepared on the latest version of autoCAD, of all Produced Material together with an non-exclusive, non-transferable, perpetual, irrevocable, royalty-free, worldwide licence to use, reproduce, modify and distribute the Produced Material granted from the Contractor to the Township and BC MoT; and
(e)
ensure the Contractor has completed all incomplete work and rectified all identified defects and deficiencies, except for warranty obligations, in accordance with the Contract and to the satisfaction of the Parties.
14.
PAYMENT OF FUNDING CONTRIBUTIONS 14.1
The Parties to this Agreement will contribute funds to the Project as set out in Schedule “C” to this Agreement.
14.2
Not later than the l0th day of the month following the end of each calendar month during the Term (or such other period of time that the Parties, may direct), the Township will forward a detailed invoice for progress payment to the RBRC Program Manager. In that invoice, the Project Manager will certify that all expenditures pertain to the Project and are Project Costs pursuant to the terms of this Agreement for that month. The Project Manager will provide the following supporting documentation with each request:
(a)
a monthly progress report as described in Section 3.7;
(b)
receipts or other supporting documentation evidencing payment by the Township of Project Costs;
(c)
a description of what the Project Costs expenditures covered;
(d)
a summary of payments made to date by all contributing RBRC Program Partners;
(e)
a summary of outstanding payments requested from any other contributing agencies; and
(f)
any other documentation reasonably requested by the Parties to support the request. 14.3
The RBRC Program Manager will review the invoices for completeness and conformance with the RBRC Program in accordance with Section 5.1, confirming the calculations for each funding participant’s share taking into account eligibility of Project Costs to each organization, ensuring that the total contribution by each Party to the Project remains in accordance with Schedule “C”, and advising each Party of its review.
14.4
The RBRC Program Manager will provide a report outlining total expenditures for the Project, each Party’s proportionate share of Project Costs incurred since the last progress payment request and the balance then due by each Party.
Each Party agrees it will pay its respective share of the progress payment requested under Section 14.2 above directly to the Township within 30 days of receipt of the invoice in accordance with Schedule “C”.
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. If, after review of the invoice and documentation provided by the Project Manager in accordance with Section 14.2 above, a Party or the RBRC Program Manager identifies any error or omission in the invoice within 10 days of receipt of the invoice, it will notify the Project Manager and the RBRC Program Manager with a copy to the other Parties. The Project Manager will promptly investigate such discrepancy and amend and resubmit the invoice or, if no amendment is warranted, provide further documentation to the Parties clarifying the matter.
14.6 14.7
The monthly invoice of Project Costs referred to in Section 12.2 must be certified by the Project Manager as being correct and include the following statement: “This statement is delivered to the Township of Langley pursuant to an agreement between TransLink, the Ministry of Transportation and Infrastructure, the Vancouver Fraser Port Authority and the Township of Langley which is dated for reference November ___, 2008 (the “Project Agreement”). I certify that this is a true and correct statement of the Project Costs (as defined in the Project Agreement) which have been incurred by the Township of Langley during the statement period on account of the Project (as defined in the Project Agreement).”
14.8
If:
(a)
the Township is not in material breach of the Agreement; and
(b)
each Party is satisfied, acting reasonably, with the supporting documentation provided under Section 14.2 above; each Party will pay their respective share of the progress payment requested under Subsections 14.3 and `4.4 above within 30 days of receipt of the RBRC Invoice in accordance with Schedule “C”. 14.9 14.10 The Project Budget specified in Schedule “C” to this Agreement will be inclusive of all applicable taxes. 14.11 The Parties will release their final payment within 30 days after Total Completion of the Project, receipt of all of the supporting documentation required under Section 11.2 and the following, which are to be provided to all Parties:
(a)
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a written certificate, executed by the Township’s Director of Engineering and Operations, that the Project has been completed in accordance with this Agreement and, in particular, meets or exceeds engineering specifications and standards set out in Schedule “E” to this Agreement;
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a statement, certified by the Township’s Chief Financial Officer, which must include the total amount of Project Costs, a breakdown of each Party’s contribution to the Project, and the following statement: “I certify that the Project Costs as stated have been incurred by the Township of Langley, are attributable to this Project, are correct, meet the definition set out in the Project Agreement dated for reference November ___, 2008 and are net of the Municipal GST rebate”; and
(c)
15.
a Project close-out report, prepared by the Owner’s Engineer, which sets out recommendations for the operation, maintenance and future rehabilitation of the Project. COVENANTS OF THE TOWNSHIP 15.1
The Township will:
(a)
pay, when due, all taxes, rates, levies, duties, charges and assessments levied or charged, at any time, by any competent governmental authority which relate to the Project and the Township’s obligations under this Agreement and which the Township is liable to pay;
(b)
deliver to the other Parties immediately upon demand, receipts or other evidence of the payment of all money required to be paid by the Township under this Agreement;
(c)
observe, abide by and comply with:
(d)
(i)
all laws, bylaws, orders, directions, ordinances and regulations of any competent governmental authority in any way affecting the Project and the Township’s obligations under this Agreement, and
(ii)
the provisions of this Agreement;
on the request of the Parties, deliver to it the following: (i)
a list of all personnel of the Township who are engaged in delivering the Project;
(ii)
all contracts and agreements related to the Project;
(iii)
substantiation of all services provided to the Township with respect to the Project.
16.
REPRESENTATIONS AND WARRANTIES OF THE PARTIES
16.1
The Township, Port Metro Vancouver, BC MoT and TransLink each warrant and represent to the other Parties with the knowledge that the other Parties will rely upon these warranties and representations in entering into this Agreement and in completing their obligations under this Agreement that it has the power, capacity and authority to enter into this Agreement and to carry out its obligations under this Agreement.
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18.
Roberts Bank Rail Corridor Program
ASSIGNMENT 17.1
No Party may assign this Agreement without the prior written consent of the others, such consent not to be unreasonably withheld.
17.2
The assignment of this Agreement does not release the Township from its obligation to observe and perform all the provisions of this Agreement on its part to be observed and performed unless the Parties specifically release the Township from such obligation in its consent to the assignment of this Agreement.
FUTURE OPERATION, MAINTENANCE AND REHABILITATION 18.1
The Township will ensure that, during the Term, the Work is operated, maintained and rehabilitated in compliance with all applicable laws, statues, regulations, by-laws, and directions of all governmental and statutory authorities issued under lawful authority, including, without limitation, any standards established by TransLink for the Work under the SCBCTA Act or those standards established by BC MoT.
18.2
The Parties acknowledge and agree that, after Substantial Completion of the Project, it is their intention that the operation, maintenance and rehabilitation of the improvements will be as follows:
(a)
the Province will own and BC MoT will be responsible for the operation, maintenance and rehabilitation of the structure going over the railway and Highway 10 as well as any improvements within the Province’s jurisdiction;
(b)
the Township will own and be responsible for the operation, maintenance and rehabilitation of the Improvements within its jurisdiction, and:
(c)
2904702.1
(i)
the Township shall maintain and rehabilitate the travelled lanes, sidewalks, pathways, bicycle lanes, and shoulders of 64th Avenue including that portion on the structure going over Highway 10, and
(ii)
if any traffic control signal is placed on Township property to regulate vehicle movements thereby causing an adverse impact on Highway 10, the Township agrees that BC MoT will have control over the phasing and timing of such signal;
subject to Section 18.1, the Township and BC MoT agree that prior to completion of the Project, the Project Manager in cooperation with the District Transportation Manager and a Township representative will prepare an agreement which will be entered into by the Township and BC MoT with respect to the foregoing and the future operation, maintenance and rehabilitation of the Project. 18.3
The provisions of this Section will survive and continue to apply after the termination of this Agreement.
18.4
All information, material and documentation (including the Produced Material) relating to the Improvements owned by either the BC MoT or the Township
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including copyright in that information, material or documentation (including the Produced Material) become the property of the respective Party having jurisdiction over the Improvements. 19.
20.
RECORDS, AUDIT AND INSPECTION 19.1
The Township will maintain accurate and complete books and records in relation to its operations under this Agreement including all transactions pertaining to the Project and all Project Costs including, without limitation, supporting documentation for all Project Costs related to the Project, from the date of this Agreement until seven years after the completion of the Project in order to accommodate audit and Freedom of Information and Protection of Privacy Act requirements.
19.2
The Township will account for all contributions and expenditures for the Project in accordance with generally accepted accounting principles.
19.3
The Parties will have the right to enter upon the Township’s premises for the purpose of inspecting or auditing the Project Costs and the records and books of the Project at any time during normal business hours. Without limiting the generality of the foregoing, the Parties will have the right to inspect and copy any records and books relating to the Project and Project Costs, including any supporting documentation and to cause an audit to be taken by them or by an independent auditor.
19.4
The Parties will have the right to enter upon the Project site, for the purpose of conducting a physical inspection of the Work, at any time during normal business hours.
INDEMNITY AND RELEASE 20.1
The Township will indemnify and save harmless TransLink, BC MoT, Port Metro Vancouver, their respective subsidiaries, directors, officers, employees and agents, (collectively the “Indemnified Parties”) from and against any and all losses, claims, complaints (including, without limitation, complaints pursuant to human rights legislation), damages, actions, causes of action, fines, penalties, costs and expenses (including, without limitation, actual legal fees and disbursements) the Indemnified Parties may sustain, incur, suffer or be put to any time, either before or after the expiration or termination of this Agreement, arising out of, or in connection with the Project or the Work, including, without limitation:
(a)
any breach of this Agreement or anything done or omitted to be done pursuant to this Agreement, whether negligently or otherwise, by the Township or any councillor, officer, employee, agent, contractor or subcontractor of the Township;
(b)
the Design, engineering, Construction, operation, maintenance or rehabilitation of the Project by the Township, whether negligent or otherwise;
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Roberts Bank Rail Corridor Program
(c)
any contravention or alleged contravention of applicable laws, statutes, regulations, by-laws, or directions of governmental or statutory authorities issued under lawful authority, including, without limitation, those related to the environment, environmental protection and contaminated sites;
(d)
the use and occupation of the Project Lands, whether negligent or otherwise; or
(e)
any Project Steering Committee participation, review, inspection, audit, approval, acceptance or payment by TransLink, BC MoT or their respective contractors and consultants in relation to the Design, engineering, Construction, operation, maintenance or rehabilitation of the Project or the Work; whether or not such losses, claims, complaints, damages, actions, causes of action, fines, penalties, costs or expenses relate to the acts or omissions, whether negligent or otherwise, of the Indemnified Parties.
21.
22.
20.2
In addition to the foregoing, and notwithstanding any other term or provision herein contained, the Township, for and on behalf of itself, its councillors, officers, employees, agents, contractors and subcontractors, hereby unconditionally, absolutely and irrevocably releases and forever discharges the Indemnified Parties from any and all losses, liabilities or damages, at law or in equity and whether direct, indirect or consequential, which relate to, arise out of, or are in any way connected with the Design, engineering, Construction, operation, maintenance or rehabilitation of the Project or the Work, whether caused by, or arising through the negligence of the Indemnified Parties.
20.3
The Township acknowledges that the indemnity under Section 208.1 and the release under Section 20.2 will not be affected in any way by the provisions of Section 2.
INSURANCE 21.1
The Township will ensure that insurance and bonding or other contract security is put in place for the Project with insurers and sureties licensed in British Columbia with coverage of a type, and in amounts, that BC MoT specifies for projects of the scope, size and exposure of this Project, during the term of this Agreement and for any subsequent ongoing operation and maintenance and rehabilitation of the resulting infrastructure.
21.2
The Township shall require and ensure that each contractor and sub-contractor involved in the Project maintains insurance compatible with the coverage required in Section 21.1.
DISPUTE RESOLUTION AND JURISDICTION 22.1
2904702.1
If any dispute arises under this Agreement, the Parties involved in the dispute will attempt to make decisions regarding resolution of any dispute efficiently, quickly and cost-effectively. Those Parties will disclose to the other Parties all relevant information and documents regarding any dispute in a timely fashion
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Project Agreement 64th Avenue Rail Overpass at Highway 10 (RBRC) Project
Roberts Bank Rail Corridor Program
with the intent that the Parties resolve any dispute within 14 days of the dispute arising (or within such other time period agreed to by the Parties) through amicable negotiations, failing which, the Parties will resolve the dispute as follows: (a)
by referring the matter to the Parties’ representatives for a unanimous resolution; and
(b)
failing the unanimous resolution of the matter within 14 days of the dispute being referred to it under Subsection (a), by referring the matter to the following representatives of the Parties for resolution or such other representatives as may be appointed by the Parties from time to time: (i)
the Municipal Administrator of the Township;
(ii)
the Vice President, Capital Management and Engineering of TransLink;
(iii)
the Vice President, Business Development of Port Metro Vancouver; and
(iv)
the Assistant Deputy Minister, Partnerships of BC MoT,
and, subject to applicable laws, the Parties will provide candid and timely disclosure to each other of all relevant facts, information and documents to facilitate the resolution of the dispute.
23.
22.2
Subject to Section 22.5 below, if a dispute under this Agreement is not resolved under Subsection 22.1(b) within 30 days of the dispute being referred to the persons identified in Subsection 22.1(b), or within such other time period agreed to in writing by the Parties, any Party may refer the dispute to arbitration conducted by a sole arbitrator appointed under the British Columbia Commercial Arbitration Act. The Parties will agree on the arbitrator or, failing agreement, the arbitrator will be appointed in accordance with the rules of the British Columbia International Commercial Arbitration Centre and the Commercial Arbitration Act.
22.3
The cost of the arbitration referred to in Section 22.2 will be shared equally by the Parties and the arbitration will be governed by the laws of the Province of British Columbia.
22.4
The arbitration will be conducted at a location agreed upon by the Parties.
22.5
A dispute under this Agreement in respect of a matter within the sole discretion of a Party cannot, unless the other Party agrees, be referred to arbitration as set out in Section 22.2.
COMMUNICATIONS AND CONFIDENTIALITY 23.1
2904702.1
All public Communications relating to the Project will be undertaken in accordance with the Communications Plan and in accordance with the Approval Matrix
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Project Agreement 64th Avenue Rail Overpass at Highway 10 (RBRC) Project
(a)
23.2
The Communications Plan is to be in conformance with the “Public Communications Work Plan” developed in accordance with the RBRC Program and will be approved in accordance with the Approval Matrix.
23.3
The Township will ensure that any Project signs erected and maintained at the Project site are in accordance with the Communications Plan.
23.4
The Township will make public announcements concerning the Project only in accordance with the Communications Plan unless consent is first obtained from the Parties. The Township will, in all its publications, news releases, public communications and presentations regarding the Project, acknowledge contributions of all Parties as required by the Communications Plan. The Township will provide milestone information that may be used to promote the Project to other Parties for communications in conformance with the Communications Plan.
23.5
The Township will provide reasonable notice to the Project Steering Committee and the RBRC Program Manager of any proposed public announcement or ceremony related to the Project. This Section will not apply to routine public notices regarding construction-related road closures.
23.6
The Township will coordinate any public consultation required for the Project with respect to road design, transportation improvements and changes in land use.
23.7
All information, material and documentation (including the Produced Material) relating to the Project is confidential and no Party will disclose that information, material or documentation (including the Produced Material) without the prior consent of the other Parties, except where such disclosure is required for the purposes of the Project or by law.
23.8
All information, material and documentation (including the Produced Material) relating to the Project that is in the custody or control of any Party:
subject to British Columbia’s Provincial laws, is subject to the Freedom of Information and Protection of Privacy Act; and subject to federal laws is subject to the Access to Information Act.
(b) 24.
Roberts Bank Rail Corridor Program
INTERPRETATION
2904702.1
24.1
The Parties acknowledge and agree that the Approval Matrix in Schedule “A” to this Agreement provides a summary of the responsibilities and approvals required under this Agreement, however, in the case of a conflict between the Approval Matrix and the terms of this Agreement, the terms of this Agreement will govern.
24.2
This Agreement shall be governed in all respects, including validity, interpretation and effect, by the laws of the Province of British Columbia and the laws of Canada applicable therein, and in cases where federal and provincial laws conflict, the federal law shall prevail. The Parties shall attorn only and
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Project Agreement 64th Avenue Rail Overpass at Highway 10 (RBRC) Project
Roberts Bank Rail Corridor Program
exclusively to the jurisdiction of courts of the Province of British Columbia save and except in the circumstance where the Federal Court has exclusive jurisdiction.
25.
24.3
Where there is a reference to an enactment of the Province of British Columbia or of Canada in this Agreement, that reference will include a reference to any subsequent enactment of the Province of British Columbia or Canada, as the case may be, of like effect and, unless otherwise stated or the context otherwise requires, all statutes referred to in this Agreement are enactments of the Province of British Columbia.
24.4
If any terms, covenant, or condition contained in this Agreement or the application thereof to any person or circumstance will to any extent be invalid or unenforceable, the remainder of this Agreement or the application of that term, covenant or condition to persons or circumstances, other than those concerning which it is held invalid or unenforceable, will not be affected thereby and each term, covenant and condition of this Agreement will be separately valid and enforceable to the fullest extent permitted by law.
24.5
In this Agreement, “person” includes a corporation, firm or association and wherever the singular or masculine form is used in this Agreement it will be construed as the plural or feminine or neuter form, as the case may be, and vice versa where the context or Parties so require.
24.6
The captions and headings contained in this Agreement are for convenience only and do not define or limit the scope or intent of this Agreement.
24.7
No term, condition, covenant or other provision of this Agreement will be considered to have been waived by a Party unless such waiver is expressed in writing by the Party. The waiver by a Party of any breach by another Party of any term, condition, covenant or other provision of this Agreement will not be construed as or constitute a waiver of any further or other breach of the same or any other term, condition, covenant or other provision and the consent or approval of a Party to any act by the other Parties requiring the consent or approval of the Parties will not be considered to waive or render unnecessary such consents or approvals to any subsequent same or similar act by the other Parties.
GENERAL
2904702.1
25.1
The Parties will make all decisions required of them under this Agreement in an expeditious and timely manner.
25.2
Each of the Parties will at all times, from time to time and upon reasonable request, do, execute and deliver all further assurances, acts and documents for the purpose of evidencing and giving full force and effect to the covenants, agreements and provisions in this Agreement.
25.3
Time will be of the essence under this Agreement.
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Project Agreement 64th Avenue Rail Overpass at Highway 10 (RBRC) Project
Roberts Bank Rail Corridor Program
25.4
Nothing contained or implied herein will prejudice or affect the rights and powers of the Township or the Township’s approving officer in the exercise of its or his functions under any public and private statutes, bylaws, orders, and regulations, all of which may be fully and effectively exercised as if this Agreement had not been executed and delivered by the Parties.
25.5
The warranties, representations and agreements contained in this Agreement will not be subject to merger but will survive the completion of the Project.
25.6
All notices, demands, claims or other communications required or permitted hereunder will be in writing and may be delivered prepaid, sent by facsimile or sent by prepaid first class mail, except that delivery of material documents, plans and money to be delivered to a Party in accordance with the terms of this Agreement will be effected by hand or courier to the address specified below, such deliveries to be effective only on actual receipt.
Any notice will be deemed to have been given or received at the time of delivery to the address of the recipient as set out below. Any notice delivered by facsimile will be deemed to be delivered on the next business day following the date of transmission thereof. Any notice mailed as aforesaid will be deemed to have been given and received on the fourth business day following the date of its mailing. Any notice will be addressed as follows: To:
TransLink 1600 – 4720 Kingsway Burnaby, B.C., V5H 4N2 Attention: Manager, Roads and Bridges Facsimile No.: (604) 453-4600
To:
the Township of Langley 4914 – 221st Street Langley, B.C. V3A 3Z8 Attention: Director of Engineering Facsimile No.: (604) ___-____
To:
Vancouver Fraser Port Authority 100 The Pointe 999 Canada Place Vancouver, B.C. V6C 3T4 Attention: ___________________ Facsimile No.: (604) ___-____
2904702.1
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Project Agreement 64th Avenue Rail Overpass at Highway 10 (RBRC) Project To:
Roberts Bank Rail Corridor Program
BC Ministry of Transportation and Infrastructure 5C – 940 Blanshard Street PO Box 9850 Stn Prov Govt Victoria, B.C. V8W 9T5 Attention: Senior Project Manager, Pacific Gateway Branch Facsimile No.: (250) 387-5812
provided, however, that a Party may, by notice in writing to the other Parties, specify another address for service of notices under this Agreement and, where another address is specified by a Party, notice must be delivered to that address in accordance with this Section. 25.7
Wherever this Agreement provides that an action may be taken, a consent or approval must be obtained or a determination must be made, then such Party will act reasonably in taking such action, deciding whether to provide such consent or approval or making such determination; but where this Agreement states that a Party has sole discretion to take an action, provide a consent or approval or make a determination, there will be no requirement to show reasonableness or to act reasonably in taking that action, providing that consent or approval or making that determination.
25.8
If, due to a strike, lockout, labour dispute, act of God, inability to obtain labour or materials, law, ordinance, rule, regulation or order of a competent governmental authority, enemy or hostile action, civil commotion, fire or other casualty or any condition or a cause beyond the Township’s reasonable control, the Township is delayed in performing any of its obligations under this Agreement, the time for the performance of that obligation will be extended by a period of time equal to the period of time of the delay so long as the Township:
(a)
gives notice to the Parties of the delay setting forth the nature of the delay and an estimated time frame for the performance of the Township obligation; and
(b)
diligently attempts to remove the delay if it is within its power to do so; and all costs associated with such delay will be Project Costs. 25.9
The Parties agree that nothing in this Agreement constitutes any of them as the agent, joint venturer or partner of the other Parties or gives any of them any authority or power to bind the other Parties in any way and that all obligations imposed under this Agreement shall be several and not joint.
25.10 This Agreement is binding upon and enures to the benefit of the Parties and their successors and permitted assigns. 25.11 No remedy conferred upon or reserved to either Party is exclusive of any other remedy in this Agreement or provided by law, but such remedy will be cumulative and will be in addition to any other remedy in this Agreement or now or hereafter existing at law, in equity or by statute.
2904702.1
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Project Agreement 64th Avenue Rail Overpass at Highway 10 (RBRC) Project
Roberts Bank Rail Corridor Program
25.12 This Agreement may be executed in counterparts and when the counterparts have been executed by the Parties, each originally executed counterpart, whether a facsimile, photocopy or original, will be effective as if one original copy had been executed by the Parties to this Agreement. 25.13 Each Party confirms that it has not, nor has any person on its behalf, given, promised or offered to any official or employee of Port Metro Vancouver or Her Majesty the Queen in Right of Canada for or with a view to obtaining this Agreement any bribe, gift or other inducement and that it has not nor has any person on its behalf, employed any person to solicit or secure this Agreement for a commission, percentage, brokerage or contingent fee. IN WITNESS WHEREOF the Parties hereto have executed this Agreement the day and year first above written. SOUTH COAST BRITISH COLUMBIA TRANSPORTATION AUTHORITY
_______________________________________________ (Authorized Signatory) _______________________________________________ Name, Title (Please print)
MINISTRY OF TRANSPORTATION AND INFRASTRUCTURE
_______________________________________________ (Authorized Signatory) _______________________________________________ Name, Title (Please print)
2904702.1
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Project Agreement 64th Avenue Rail Overpass at Highway 10 (RBRC) Project
Roberts Bank Rail Corridor Program
VANCOUVER FRASER PORT AUTHORITY
_______________________________________________ (Authorized Signatory) _______________________________________________ Name, Title (Please print)
_________________________________ ______________ (Authorized Signatory) _______________________________________________ Name, Title (Please print)
CORPORATION OF THE TOWNSHIP OF LANGLEY
_______________________________________________ (Authorized Signatory) _______________________________________________ Name, Title (Please print)
_________________________________ ______________ (Authorized Signatory) _______________________________________________ Name, Title (Please print)
2904702.1
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Project Agreement 64th Avenue Rail Overpass at Highway 10 (RBRC) Project
Roberts Bank Rail Corridor Program
Schedule “A” Approval Matrix
1
Document or Event
Prepared by
Action Required
Action By
Any change to the Project Manager or Owner’s Engineer (including, criteria, selection and assignment)
Township
Review for general compliance with RBRC Program. Approve
Project Steering Committee
2
Project Implementation Plan (as described in Subsection 6.2)
4
DB RFP Procurement Plan (as described in Subsection 6.1)
Evaluation and Selection
Township
Township
Township, BC MoT
Review for general compliance with RBRC Program. Approve Review for general compliance with RBRC Program. Approve Review for general compliance with RBRC Program. Approve
Award/Contract
Township
Approve
5
Acceptance of Technical Compliance at all phases and including all exceptions to design standards
Owner’s Engineer
Accept
6
Any Material Change to Project Parameters (scope, schedule, budget)
Township
Review for general compliance with RBRC Program. Approve
7
All Other contracts (after execution of this agreement)
2904702.1
Township
Owner Partner Representatives Project Steering Committee Parties Project Steering Committee Owner Partner Representatives Project Steering Committee Owner Partner Representatives Owner Partner Representatives Owner Partner Representatives, City of Langley Project Steering Committee Owner Partner Representatives
none required.
Page 1
Project Agreement 64th Avenue Rail Overpass at Highway 10 (RBRC) Project Document or Event
8
Traffic Management Plans
10
Communication Plan & Activities
11
Monthly Project Reporting
12
Monthly Invoices for Payment (signed and vetted for accuracy by Project Manager and RBRC Program Manager)
13
Substantial Completion
14
Final Completion (Project Acceptance)
2904702.1
Roberts Bank Rail Corridor Program
Prepared by
Action Required
Action By
Contractor(in cooperation with MoT District Transportation Manager and Township) Township, TransLink
Approve
BC MoT, Township
Approve
Parties
Township, RBRC Program Manager
Review for general compliance with RBRC Program. Accept
Project Steering Committee
Township, RBRC Program Manager Township
Accept subject to conformance to agreed to budget, scope and Project Implementation Plan Acceptance of Design and Construction Receive for close-out
Parties
Township
Parties
Owner Partner Representatives Parties
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Project Agreement 64th Avenue Rail Overpass at Highway 10 (RBRC) Project
Roberts Bank Rail Corridor Program
Schedule “B” Conceptual Plan [To be inserted by the Township]
2904702.1
Page 1
Project Agreement 64th Avenue Rail Overpass at Highway 10 (RBRC) Project
Roberts Bank Rail Corridor Program
Schedule “C” Project Costs, Contribution Amounts and Project Budget Project Costs Project Costs will mean all direct costs properly and reasonably incurred and paid solely and specifically in relation to the Project including capital costs that would usually be capitalized in the financial records of the Township. The following are examples of Project Costs that will be eligible for reimbursement under this Agreement, provided that they fall within the definition set out in the immediately preceding paragraph: •
prior to execution of agreements: specified third Party costs related to studies, tests, reports, consulting work and other actual costs incurred by the Parties, other than internal work, for work directly related to development, planning, design and land acquisition necessary for the Project (as agreed to by the Parties in advance)including work done by Delcan as Owners Engineer, work by Pacific Land Group regarding the ALC application, Greta Soo for land acquisition, Bramcon as process advisor, and Arcas for the archaeological works;
•
costs for services related to project delivery by staff and consultants (such as Project Manager, Owner’s Engineer, process advisor, etc.) as agreed to by the Parties in advance;
•
after execution of agreements: capital costs actually and reasonably incurred for planning, development, design, engineering, environmental work, land acquisition, construction commissioning and management of the Project including: o costs incurred under Design and Construction contracts; o Actual costs of applications, permits/licences and approvals required for the Project (excluding those required/charged by RBRC ProgramPartners) including:
environmental protection and compensation works required by government authorities and as agreed to in writing by the Parties;
archaeological protection and compensation works required by government authorities and as agreed to in writing by the Parties;
permitting fees required for the Project;
relocation of existing utilities if required to facilitate the Project; and
acquiring a licence to use the Produced Material, in accordance with Section 6.4(f);
o actual costs(including legal costs) incurred for acquisition of land required for the Project (including by expropriation if necessary) as identified and agreed to by the Parties (exclusive of land owned by a Party which is utilized for the Project or that not agreed to by the Parties); o surveying;
2904702.1
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Project Agreement 64th Avenue Rail Overpass at Highway 10 (RBRC) Project
Roberts Bank Rail Corridor Program
o traffic management; o studies and testing; o basic landscaping (sod/seeding and gravel only); o restoration of existing features and infrastructure disrupted by construction of the project (basic landscaping, driveway pavement, curbs); o consultant/professional fees for engineering, environmental design, construction, monitoring, inspection, testing and contract administration; o project management costs and disbursement in relation to the Project; and o actual costs of communications and community relations reasonably incurred for the Project (including Project signs, events and media releases); •
legal costs incurred by the Parties for preparing and reviewing contracts or agreements for the Project, except for legal costs incurred by the Parties for preparing and reviewing this Agreement;
•
dispute resolution costs – actual costs incurred by the Parties to enforce the contract or to resolve claims arising from the Project; and
•
any other cost as specifically agreed to in writing by the Parties.
Notwithstanding the above, the following are examples of costs that will not be eligible for reimbursement under this Agreement: •
financing costs / interest on any Party’s contribution;
•
public art, enhanced landscaping and other non-standard forms of “beautification”, landscape design;
•
utility upgrading or new construction unless required to facilitate the Project;
•
costs incurred after completion of construction (including operation, maintenance, monitoring or rehabilitation of assets following completion of construction);
•
G.S.T.
•
actual costs of applications, permits/licences and approvals required for the Project by participating RBRC partners;
•
works undertaken concurrently by one or more of the Parties that are not part of the Agreement or Project Scope;
•
costs in excess of the stated maximum contributions unless agreed to and confirmed in writing;
•
costs of previous studies/ work not specified and agreed to by the Parties as a Project Cost;
•
costs in which the Township will receive full recovery from other agencies that are not RBRC Program Partners..
2904702.1
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Project Agreement 64th Avenue Rail Overpass at Highway 10 (RBRC) Project
Roberts Bank Rail Corridor Program
Project Budget The Project Budget as of January 2009 is based on the Conceptual Design set out in Schedule “B” and as more particularly described in the Project Scope described in Schedule “E” is summarized below. Description Project Management Project Development Engineering Property Acquisition Construction – Overpass Structure Construction – All other Management Reserve Contingency Total (Year 2008 dollars)
Estimated Cost (millions) $1,000,000 $_ 300,000 __ $_ 5,000,000 __ $1,000,000 _ $11,800,000__ $ 25,700,000 __ $_ 0 __ $ 6,200,000 ___ $51,000,000.00
Funding Contributions and Payment of Project Costs The agreed funding contributions for the Project are: Agency
Funding Contribution
TransLink
$24,000,000
BC MoT
$12,500,000
Township
$9,300,000
Transport Canada*
$3,100,000
Port Metro Vancouver
$2,100,000
Total (200__ dollars)
$51,000,000
* Note: Transport Canada will be advancing their funds through a separate contribution agreement between Transport Canada and the Township.
2904702.1
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Project Agreement 64th Avenue Rail Overpass at Highway 10 (RBRC) Project
Roberts Bank Rail Corridor Program
Schedule “D” Estimated Milestone Dates
Milestone
Date
Project Agreement
March 2009
Conceptual Design
September 2008
Issuance of RFP
April 2009
Award of Design-Build Contract
September 2009
Commencement of Construction
November 2009
Substantial Completion
May2011
Total Completion
Fall 2011
NOTE: Total Completion must not extend beyond March 2014 (termination of federal funding.)
2904702.1
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Project Agreement 64th Avenue Rail Overpass at Highway 10 (RBRC) Project
Roberts Bank Rail Corridor Program
Schedule “E” Project Scope The Township will implement the Project including the Design and Construction of the Project, the scope of which includes the following: • new four-lane overpass, northeast of the existing Mufford Crescent crossing over the railroad and Glover Road (an approximate overpass structure of 440 m with a superstructure span of 220 m with shoulders on each side); • new four-lane west approach road from Mufford Crescent (northwest of 62nd Avenue) to the overpass along with two cul-de-sacs closing Mufford Crescent between existing at-grade crossings of RBRC and the new approach road (including shoulders); • closing of the access to Highway 10 from Mufford Crescent; • new four-lane east approach road to connect the overpass with 216th Street at 64th Avenue (including shoulders); • new bridge over North Creek; • intersection improvements at 64th Avenue, west of 216th Street including additional east and westbound left turn lanes from the new road to 64th Avenue and rebuild of 64th Avenue at the intersection; • intersection improvements at 64th Avenue and 216th Street including east and westbound left turn lanes from 64th Avenue to 216th Street; • two lane access road to farms approximately 650 m in length from Mufford Crescent, under the overpass and along the railway; • utility adjustments or relocations; • land acquisition. The Township will implement the Project in accordance with the following standards and specifications: Provincial Engineering Standards and Specifications Provincial infrastructure (overpass and highway connections) to be designed and constructed to BC MoT design and engineering standards and specifications as approved by BC MoT South Coast Region. Township Engineering Standards and Specifications Municipal infrastructure to be designed and constructed to Township design and engineering standards and specifications as approved by Township.
2904702.1
Page 1
ATTACHMENT D OPEN HOUSE QUESTIIONNAIRE SUMMARY 1. Has this open house been helpful to you? Yes 169 82%
No 17 9%
No Answer 17 9%
Total 203 100%
2. After reviewing the presentation materials, do you think an overpass is required? Possible responses No. of Respondents Results
Yes
No
No Answer
Total
144 72%
44 22%
15 6%
199 100%
3. If you said yes to question 2, which option best meets the needs of the Township of Langley? Design Options
Preliminary Design
North Route
South Route
“Option J”
Limit Hwy10/ Mufford to right in/out
Other
No Answer
Total
No. of Responses
39
9
9
78
11
22
27
195
Results
20%
5%
5%
40%
5%
11%
14%
100%
4. Which type of traffic control do you prefer at 216 Street? Roundabout 39 22%
Traffic Signal 71 40%
No Preference 26 15%
No Answer 40 23%
Total 176 100%
5. Please state your preference for a community multi-use pathway: Surface
Usage:
Width
Gravel 52 44%
Asphalt 67 56%
Mixed/Ped/Bicycles/Equestrian 97 87% 2 metres 37 22%
3 metres 47 28%
4 metres 21 13%
Total 119 100%
Pedestrian Only 14 13% No Answer 54 32%
Total 111 100% Opposed 8 5%
Total 167 100%
6. Are you in favour of streetlights through the rural portion of the project? Yes 71 36%
No 79 40%
No Answer 49 24%
Total 199 100%
ATTACHMENT E
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