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HomeMy WebLinkAbout2000-101 THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON BY-LAW NUMBER 2000-101 being a by-law to authorize the execution of the Fourth Amending Agreement to the Principles of Understanding between Blue Circle Canada Inc. and the Municipality of Clarington dated November 3, 1997 WHEREAS at the meeting on June 26, 2000 Council approved the recommendations contained in Report Solic-#3-00; NOW THEREFORE THE COUNCIL OF THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON ENACTS AS FOLLOWS: 1. The Mayor and Clerk are hereby authorized on behalf of the Municipality of Clarington to execute the Fourth Amending Agreement to the Principles of Understanding between Blue Circle Canada Inc. and the Municipality of Clarington dated November 3, 1997, a copy of which is contained in Schedule 1 attached to and forming part of this By-law. BY-LAW read a first and second time this 26th day of June, 2000. BY-LAW read a third time and finally passed this 26th day of June, 2000. Diane Ha e, yor *. e, rk THIS FOURTH AMENDING AGREEMENT TO THE PRINCIPLES OF UNDERSTANDING made as of this 26th day of June, 2000. BETWEEN: THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON ("Municipality") OF THE FIRST PART - and - BLUE CIRCLE CANADA INC. ('Blue Circle") OF THE SECOND PART WHEREAS: A. Paragraph 24 of the Principles of Understanding ("Principles") between the Parties dated November 3, 1997 provide for the Principles to terminate and have no force and effect in the event that any of the conditions referred to in paragraph 1 and paragraph 23 or any of the events listed in paragraph 8(b) of the Principles is not satisfied prior to December 31, 1999 ("Unwinding Date"). B. By the First Amending Agreement to the Principles of Understanding dated December 13, 1999 the Parties amended paragraph 24 of the Principles to extend the Unwinding Date from December 31, 1999 to February 29, 2000 on the terms set out therein. -2- C. By the Second Amending Agreement to the Principles of Understanding dated February 21, 2000 the Parties amended paragraph 24 of the Principles to extend the Unwinding Date from February 29, 2000 to April 30, 2000 on the terms set out therein. D. By the Third Amending Agreement to the Principles of Understanding dated April 25th,2000 the Parties amended paragraph 24 of the Principles to extend the Unwinding Date from April 30, 2000 to a date not later than June 30, 2000 on the terms set out therein. E. The Parties have agreed to further amend the Principles as set out below. NOW THEREFORE WITNESSETH THAT in consideration of the premises and the covenants hereinafter expressed,and the sum of two($2.00)dollars of lawful money of Canada,now paid by each Party to the others (the receipt whereof by each Party is hereby acknowledged), the Parties hereto covenant and agree to and with each other as follows: 1. The Principles are amended as follows: (a) Recital "L"of the Principles is deleted and replaced with the following: "Blue Circle intends to acquire perpetual easements from Ontario Hydro on the portions of the Ontario Hydro Lands which are identified on the Plan contained in Schedule"A"hereto and which are referred to in these Principles as the "Westside Creek Diversion Area. . A". With the consent of Ontario Hydro, Blue Circle will transfer these easements to the Municipality forthwith after the completion of construction of the "Westside Creek Diversion Works" (as hereafter defined);" r -3- (b) Paragraph 3(d) of the Principles is amended by deleting from the fifth and sixth lines thereof the words"and"Proposed Closure Area D"and the abutting reserves set out in Schedule "H" hereto and"; (c) Paragraph 3(e)of the Principles is amended by adding the following at the end of the second sentence thereof: "provided that the transfer of Proposed Closure Area D together with the abutting reserves to CLOCA shall be subject to the following easements which shall first be transferred to Blue Circle by the Municipality: (i) an easement over parts 5, 9 and 18 on Brown & Coggan Draft Plan No. 1971017 for the purposes of constructing and maintaining the Overflow Channel Lands C by means of an open channel; (ii) an easement for the purpose of constructing and maintaining a noise attenuation berm over Parts 2, 12 and 15 on the aforesaid draft plan; and (iii) an access easement over parts 4, 10 and 17 on the aforesaid draft plan. (d) Clause 7(a)(i) of the Principles is deleted and replaced with the following: "(i) will execute agreements with Ontario Hydro and the Municipality for the acquisition by Blue Circle of easements in the portions of the Ontario Hydro Lands which comprise the Westside Creek Diversion Area A, and for the construction of the Westside Creek Diversion Works by Blue -4- Circle. Further, the easement agreement will provide for the consent by Ontario Hydro to the transfer to the Municipality of perpetual easements in the Westside Creek Diversion Area A for a nominal consideration on the completion of the Westside Creek Diversion Works. The latter transfer to the Municipality shall contain terms and conditions acceptable to the Municipality's Director of Public Works, acting reasonably;" (e) Sub-paragraph 8(a) of the Principles is amended by deleting the word "and" at the end of clause (v) and the punctuation at the end of clause (vi), by adding a semi- colon at the end of clause (vi), and by adding a new clause (vii) as follows: "8(a)(vii) Blue Circle shall deliver and the Municipality shall agree to accept a Licence Agreement executed by it to the Municipality containing terms and conditions acceptable to the Municipality's Director of Public Works, acting reasonably, to permit the construction, maintenance and repair of a culvert below the surface of Waverly Road and abutting reserves on Parts 3,4 and 5 shown on Plan 40R- 19718,to accommodate a channel for the Westside Creek Diversion between the lands comprising portions of the Westside Creek Diversion Area A and without limiting the generality of the foregoing, the Licence Agreement . shall provide that the construction of the proposed culvert and a schedule for its commencement and completion shall be approved by the aforesaid Director, acting reasonably before the construction is commenced; r -5- (f) Clause 8(b)(viii) is deleted and replaced with the following: "(viii) the execution of the agreements respecting the construction of the Westside Creek Diversion Works, and the transfers of easements referred to in clause 7(a)(i) hereof," (g) Sub-paragraph 10(a) of the Principles is amended by adding at the end thereof "provided that the Municipality may execute such Agreement as a party for such purposes and on such terms and conditions as the Municipality may approve." (h) Sub-paragraph 10(b) is amended by adding after the words "to CLOCA"the words "and to the Municipality". (i) The second sentence of paragraph 13 is deleted and replaced with the following: "The agreement shall provide for the transfer by Blue Circle with the consent of Ontario Hydro, at Blue Circle's cost, of a perpetual easement in Westside Creek Diversion Area A to the Municipality forthwith after Ontario Hydro gives notice to Blue Circle and the Municipality in writing that the Westside Creek Diversion Works on Westside Creek Diversion Area A have been completed. The perpetual easement shall be transferred for a nominal consideration and shall be in a form and have a content that is satisfactory to the Municipality's solicitor acting reasonably." (j) Sub-paragraph 16(b) is deleted and replaced with the following: r , -6- "16(b) All transfers to the Municipality and by the Municipality to CLOCA which are made to implement the intent of these Principles shall have a form and content satisfactory to the Municipality's solicitor,acting reasonably. All governmental fees and taxes payable on the registration of transfers to the Municipality shall be paid by Blue Circle. All governmental fees and taxes payable on the registration of transfers to CLOCA shall be paid in equal shares by Blue Circle and by the Municipality."; (k) New paragraph 23A, 23B, and 23C are added as follows: "23A. Transfer of Various Lands and Easements In each case in which the Principles provide for the transfer of land or an easement to CLOCA or as otherwise directed by the Municipality, the transfer shall be made by Blue Circle to the Municipality. Thereafter, except in the case of the easements in the Westside Creek Diversion Area A transferred to the Municipality pursuant to the agreements referred to in clauses 7(a)(i), 8(b)(viii) and paragraph 13 hereof, the Municipality may transfer the same to CLOCA. In addition to all governmental fees and taxes payable on the registration of transfers to the Municipality, Blue Circle shall pay to the Municipality on demand the reasonable cost to the Municipality for the services of a qualified appraiser in preparing the appraisal required by section 193 of the Municipal Act before the lands which are transferred by Blue Circle—to the Municipality pursuant to the Principles can be declared surplus and transferred to CLOCA. r -7- 23B. Indemnity (a) Blue Circle covenants and agrees to indemnify and hold harmless the Municipality from and against all direct, indirect and/or consequential costs, expenses, losses, damages, actions, causes of action, interest claims, charges, proceedings, claims or demands arising out of the construction, installation, maintenance, repair or use of the Westside Creek Diversion Works from and after the date of the transfer of the perpetual easements to the Municipality as contemplated by clause 7(a)(i)hereof(the"Commencement Date") or any act or omission of the servants, agents, sublicensees and contractors relating to the Westside Creek Diversion Works arising after the Commencement Date, including without limiting the generality of the foregoing, all costs and expenses incurred in restoring or rectifying the aforesaid Works or complying with any requests, orders or notices issued pursuant to any applicable legislation and relating to or arising out of the aforesaid Works, the construction, installation, repair and maintenance thereof. (b) Without limiting the generality of the foregoing,Blue Circle shall indemnify the Municipality and save it harmless from and against any and all direct, indirect and or consequential costs, losses,claims, actions, damages, liability and expenses in connection with loss of life or personal injury or property damage arising from or in any way connected with the Works, including without limitation, any occurrence caused or arising during access to or egress from the Works by Blue Circle, by CLOCA, or by their respective agents, contractors, employees, servants, licensees and invitees, from and after the Commencement Date whatsoever in,upon or at the Works or in the vicinity thereof or the use thereof and without limiting the generality of the foregoing, against any event occasioned wholly or in part by any act or omission of Blue Circle or CLOCA, their agents, contractors, employees, -8- servants, licensees or sublicensees in connection with or related to the inspection, maintenance or repairs of the Works or by anyone permitted by Blue Circle or by CLOCA to be on the Westside Creek Diversion Area"A" or such Works or in the vicinity of the Works, as provided or contemplated herein, except to the extent contributed to by the intentional acts of the Municipality and those for whom it is in law responsible. If the Municipality shall be made a party to any litigation commenced by or against Blue Circle or by or against CLOCA, then Blue Circle shall protect and hold the Municipality harmless and shall pay all reasonable costs, expenses and legal fees incurred or paid by the Municipality in connection with such litigation. Without limiting the foregoing, such indemnification shall include all costs, expenses and damages direct, indirect and consequential which may arise from any damage or injury from any of the Works occasioned wholly or in part by the act or omission of Blue Circle, CLOCA, or by their respective agents, contractors, employees, servants, licensees and sublicensees or by anyone permitted to be on or in the vicinity of the Works or the Westside Creek Diversion Area "A" by the Municipality, except to the extent contributed to by the intentional acts of the Municipality or those for whom it is in law responsible. (c) Blue Circle shall at all times have the right at its option and expense to dispute and contest in the name of the Municipality any third party claim for which it admits, in writing,that in the event of such third party claim is held to be valid, Blue Circle is liable to indemnify the Municipality under this paragraph 23B. The Municipality shall fully co-operate with Blue Circle and its counsel in any proceedings with respect to any such third party claim and Blue Circle shall pay the actual costs reasonably incurred by the Municipality. If Blue Circle does not admit it is liable to indemnify the Municipality under this paragraph 23B in respect of the claim, the -9- Municipality shall ensure that Blue Circle is kept advised of the progress of such third party claim and the Municipality may, but is not obligated to, assert any defence to such third party claim as it deems reasonable in the circumstances without in any way reducing the liability of Blue Circle under this indemnification. (d) If Blue Circle exercises the option to defend a third party claim, then the following provisions shall apply: (i) the Municipality shall be kept fully informed of all aspects of the conduct of the dispute and shall be provided with copies of all correspondence related thereto; (ii) the appointment of solicitors or other professional advisors shall be subject to the prior approval, in writing,of the Municipality, not to be unreasonably withheld or delayed. Without limiting the foregoing, the Municipality may engage its own counsel or other professional advisors, all reasonable expenses of whom are to be for the account of Blue Circle to review the conduct of such dispute and to advise the Municipality with respect to the same; (iii) Blue Circle shall not settle or compromise any third party claim or agree on any matter in the conduct of the dispute which may affect the liability of the Municipality to any person whatsoever without the prior written approval of the Municipality, such approval not to be unreasonably withheld or delayed; -10- (iv) Blue Circle shall be entitled to reasonable access to all relevant books and records of the Municipality and to its employees that are necessary for the purpose of defending such third party claim; (v) If the Municipality, acting reasonably, believes there is liability for such third party claim, which may be in excess of any insurance then held by Blue Circle, or any contractor or licensee of Blue Circle for such third party claim or if the Municipality, acting reasonably, believes that any insurer in respect of same may deny coverage, then the Municipality may at its option require Blue Circle to post such additional security as may be reasonably required to secure the potential liability for such claim, and such security may include letters of credit, financial instruments, performance bonds (if applicable), cash, guarantees from parties whose covenant is satisfactory to the Municipality in its unfettered discretion, exercised, however in good faith, or any combination thereof. (e) Blue Circle shall provide, at its expense, and keep in force insurance of the type commonly called "comprehensive general liability insurance", which insurance shall be with insurers acceptable to the Municipality acting reasonably and shall include coverage for personal injury (including death), property damage and consequential damage all on a"per occurrence"basis with respect to all operations carried on upon the Westside Creek Diversion Area"A" or with respect to the Westside Creek Diversion Works by either party with limits for any one occurrence or claim of not less than $25,000,000.00 (Twenty-Five Million Dollars). Such insurance shall name the Municipality as an insured and contain a cross-liability clause, such insurance at the option of Blue Circle may form part of Blue Circle's blanket insurance policy and shall provide or the insurer shall agree that such policy may not be cancelled or its coverage reduced without thirty (30) days prior written notice to the Municipality. Blue Circle shall keep on deposit with the Municipality a certificate of such portion of any blanket insurance policy and all renewals thereof and all endorsements thereof sufficient to show at all times the current status of such insurance as required under this clause 2313(e) and without limiting the generality of the foregoing, Blue Circle shall furnish the Municipality proof of the renewal or replacement of every such policy at least one month prior to the expiry of such policy. If and whenever Blue Circle fails to comply with the foregoing, the Municipality upon at least fifteen(1 S)days prior notice or such shorter period as is available prior to the expiry of the insurance policy may effect such insurance for the benefit of the Municipality and Blue Circle jointly, and if the Municipality does so, any additional premium paid by it beyond its usual insurance costs shall be recoverable from Blue Circle on demand. 23C. Arbitration and Termination (a) Without limiting the right of the Municipality to require the remedy of any perceived default prior to either the commencement or the conclusion of the arbitration process provided for herein,any dispute which arises between the parties hereto concerning any matter in connection with paragraph 23B hereof shall be determined by arbitration by either parry giving written notice to the other of such dispute, setting out the issues in dispute with sufficient particularity to permit the other party to adequately respond thereto, and such arbitration shall be pursuant to the Arbitration Act (Ontario), as amended, from time to time or pursuant to any legislation substituted therefor and subject to the following provisions: -12- (b) there shall be three arbitrators appointed in the manner following, that is to say: (i) either party may appoint an arbitrator and on doing so shall forthwith give notice in writing thereof to the other party; (ii) the party in respect of a notice of the appointment of an arbitrator as aforesaid shall, unless it has already done so, within fifteen (15) business days from the date of receiving the notice appoint an arbitrator and give notice thereof to the other party; (iii) if either party does not appoint an arbitrator within the time limited under the preceding clause 23C(b)(ii),the other party may apply to a Judge of the Ontario Superior Court of Justice to appoint an arbitrator on behalf of and at the expense of the party so in default; (iv) the arbitrators appointed by or for the parties hereto shall appoint a third arbitrator and, if they fail to do so within seven(7)days after the last of them was appointed,either party at its own costs and on notice to the other may apply to a Judge of the Ontario Superior Court of Justice to appoint a third arbitrator; (c) the arbitrator or arbitrators shall have the power to obtain the assistance, advice or opinion of such engineer, architect, surveyor, appraiser, valuer or other expert as he or they may think fit and shall have the discretion to act upon any assistance, advice or opinion so obtained; (d) the arbitrators shall in their discretion determine which and to what extent each party shall bear the costs and expenses of the arbitration; -13- (e) each of the parties will do all acts and things and execute all deeds and instruments necessary to give effect to any award made upon any such arbitration; (f) the decision of the arbitrator or arbitrators shall be in writing and shall be binding upon the parties hereto. Paragraphs 2313 and 23C shall not be terminated by either party except as provided herein or except by mutual consent." (1) Schedule "J" is amended by: (i) under the heading "Commencement Date", deleting "Winter 1998" and replacing it with"Spring, 2001"; (ii) under the heading "Schedule of Work", deleting "Winter 1998" and replacing it with"Spring, 2001"; and (iii) under the heading "Completion Date", deleting "Winter 2001" and replacing it with"Winter, 2004"; and (m) Paragraph 24 of the Principles as amended by the First, Second and Third Amending Agreements is further amended by deleting the date"June 30, 2000" and replacing it with the date"July 31, 2000". 2. All other terms and conditions of the Principles shall remain the same and time shall be of the essence. -14- ;. This Fourth Amending Agreement to the Principles of Understanding may be executed by the Parties in counterpart. IN WITNESS WHEREOF the Parties hereto have hereunto set their hands and seals the day and year first above written and the Parties hereto have hereunto affixed their corporate seals by the hands of their proper officers duly authorized in that behalf. SIGNED, SEALED AND ) THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON DELIVERED ) in the presence of ) Mayor erk BLUE CIRCLE CANADA INC. Per: Name: Title: Per: Name: Title: Q:\HEFFERON\CLARfNG\BLUECIRC\AGREES\AMEND4.DR3 Telephone (416) 360-3326 Facsimile (416) 868-0306 DENNIS C. HEFFERON BARRISTER & SOLICITOR Suite 2500 130 Adelaide Street West Toronto, Ontario M5H 2M2 TDX Box 38 5 July 2000 DELIVERED Ms. Patti L. Barrie Clerk Municipality of Clarington 40 Temperance Street Bowmanville, Ontario L I C 3A6 Dear Ms. Barrie: Re: Extension of Principles of Understanding between the Municipality of Clarington and Blue Circle Canada Inc. : Fourth Amending Agreement dated June, 26, 2000 I enclose herewith the fully executed copy of the Fourth Amending Agreement to the Principles of Understanding executed in counterpart by Blue Circle Canada Inc. for your records. I am enclosing a copy of a letter dated June 29, 2000 from Weir and Foulds (Blue Circle's solicitors) confirming their agreement with me that the Unwinding Date is extended from June 30, 2000 to July 10, 2000 with all terms and conditions of the Principles of Understanding dated November 3, 1997 to remain the same and time to remain of the essence. Yours very truly, a DCH:bg Dennis C. Hefferon Enclosure C. Mr. Stephen Vokes Weir & Foulds Exchange Tower Barristers and Solicitors Suite 1600 P.O.Box 480 130 King Street West Toronto,Ontario Canada M5X U5 Tel (416)365-1110 Fax (416)365-1876 Internet http://www.weirfouIds.com June 29, 2000 Alec K.Clute E-mail clutea @weirfoulds.com Direct Line(416)947-5006 Delivered Dennis C. Hefferon Barrister& Solicitor Suite 2500 130 Adelaide Street West Toronto, ON M5H 2M2 Dear Mr. Hefferon: Re: Fourth Amending Agreement to the Principles of Understanding between The Municipality of Clarington and Blue Circle Canada Inc. We enclose herewith a counterpart copy ofthe Fourth Amending Agreement executed by Blue Circle Canada Inc. and we acknowledge receipt from you of a counterpart executed by the Municipality. We confirm our telephone conversation in which it was agreed that,pursuant to the rights given to our respective firms in the Third and Fourth Amending Agreements to the Principles of Understanding, the Unwinding Date is extended from June 30, 2000 to July 10, 2000; all other terms and conditions of the Principles to remain the same and time to remain of the essence. Yours very truly, WEIR&FOULDS A c K. Clute AKC/df cc. Wilson Little(w/o encl.) Jim Schell(w/o encl.) Ian MacNaughton(w/o encl.) Phil McClendon(w/o encl.) R. Wayne Rosenman(w/o encl.) ::ODMA\PCDOCS\W&11434418\1 THIS FOURTH AMENDING AGREEMENT TO THE PRINCIPLES OF UNDERSTANDING made as of this 26th day of June, 2000. BETWEEN: THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON ("Municipality") OF THE FIRST PART - and- BLUE CIRCLE CANADA INC. ("Blue Circle") OF THE SECOND PART WHEREAS: A. Paragraph 24 of the Principles of Understanding ("Principles") between the Parties dated November 3, 1997 provide for the Principles to terminate and have no force and effect in the event that any of the conditions referred to in paragraph 1 and paragraph 23 or any of the events listed in paragraph 8(b) of the Principles is not satisfied prior to December 31, 1999 ("Unwinding Date"). B. By the First Amending Agreement to the Principles of Understanding dated December 13, 1999 the Parties amended paragraph 24 of the Principles to extend the Unwinding Date from December 31, 1999 to February 29, 2000 on the terms set out therein. -2- C. By the Second Amending Agreement to the Principles of Understanding dated February 21, 2000 the Parties amended paragraph 24 of the Principles to extend the Unwinding Date from February 29, 2000 to April 30, 2000 on the terms set out therein. D. By the Third Amending Agreement to the Principles of Understanding dated April 25th,2000 the Parties amended paragraph 24 of the Principles to extend the Unwinding Date from April 30, 2000 to a date not later than June 30, 2000 on the terms set out therein. E. The Parties have agreed to further amend the Principles as set out below. NOW THEREFORE WITNESSETH THAT in consideration of the premises and the covenants hereinafter expressed,and the sum of two($2.00)dollars of lawful money of Canada,now paid by each Party to the others (the receipt whereof by each Party is hereby acknowledged), the Parties hereto covenant and agree to and with each other as follows: 1. The Principles are amended as follows: (a) Recital "L" of the Principles is deleted and replaced with the following: "Blue Circle intends to acquire perpetual easements from Ontario Hydro on the portions of the Ontario Hydro Lands which are identified on the Plan contained in Schedule"A"hereto and which are referred to in these Principles as the "Westside Creek Diversion Area A". With the consent of Ontario Hydro, Blue Circle will transfer these easements to the Municipality forthwith after the completion of construction of the "Westside Creek Diversion Works" (as hereafter defined);" -3- (b) Paragraph 3(d)of the Principles is amended by deleting from the fifth and sixth lines thereof the words"and"Proposed Closure Area D"and the abutting reserves set out in Schedule "H"hereto and"; (c) Paragraph 3(e)of the Principles is amended by adding the following at the end of the second sentence thereof: "provided that the transfer of Proposed Closure Area D together with the abutting reserves to CLOCA shall be subject to the following easements which shall first be transferred to Blue Circle by the Municipality: (i) an easement over parts 5, 9 and 18 on Brown& Coggan Draft Plan No. 1971017 for the purposes of constructing and maintaining the Overflow Channel Lands C by means of an open channel; (ii) an easement for the purpose of constructing and maintaining a noise attenuation berm over Parts 2, 12 and 15 on the aforesaid draft plan; and (iii) an access easement over parts 4, 10 and 17 on the aforesaid draft plan. (d) Clause 7(a)(i) of the Principles is deleted and replaced with the following: "(i) will execute agreements with Ontario Hydro and the Municipality for the acquisition by Blue Circle of easements in the portions of the Ontario Hydro Lands which comprise the Westside Creek Diversion Area A, and for the construction of the Westside Creek Diversion Works by Blue -4- Circle. Further, the easement agreement will provide for the consent by Ontario Hydro to the transfer to the Municipality of perpetual easements in the Westside Creek Diversion Area A for a nominal consideration on the completion of the Westside Creek Diversion Works. The latter transfer to the Municipality shall contain terms and conditions acceptable to the Municipality's Director of Public Works, acting reasonably;" (e) Sub-paragraph 8(a) of the Principles is amended by deleting the word "and" at the end of clause (v) and the punctuation at the end of clause (vi), by adding a semi- colon at the end of clause (vi), and by adding a new clause (vii) as follows: "8(a)(vii) Blue Circle shall deliver and the Municipality shall agree to accept a Licence Agreement executed by it to the Municipality containing terms and conditions acceptable to the Municipality's Director of Public Works, acting reasonably, to permit the construction, maintenance and repair of a culvert below the surface of Waverly Road and abutting reserves on Parts 3,4 and 5 shown on Plan 40R- 19718,to accommodate a channel for the Westside Creek Diversion between the lands comprising portions of the Westside Creek Diversion Area A and without limiting the generality of the foregoing, the Licence Agreement . shall provide that the construction of the proposed culvert and a schedule for its commencement and completion shall be approved by the aforesaid Director, acting reasonably before the construction is commenced; -5- (f) Clause 8(b)(viii) is deleted and replaced with the following: "(viii) the execution of the agreements respecting the construction of the Westside Creek Diversion Works, and the transfers of easements referred to in clause 7(a)(i) hereof;" (g) Sub-paragraph 10(a) of the Principles is amended by adding at the end thereof "provided that the Municipality may execute such Agreement as a party for such purposes and on such terms and conditions as the Municipality may approve." (h) Sub-paragraph 10(b)is amended by adding after the words "to CLOCA"the words "and to the Municipality". (i) The second sentence of paragraph 13 is deleted and replaced with the following: "The agreement shall provide for the transfer by Blue Circle with the consent of Ontario Hydro, at Blue Circle's cost, of a perpetual easement in Westside Creek Diversion Area A to the Municipality forthwith after Ontario Hydro gives notice to Blue Circle and the Municipality in writing that the Westside Creek Diversion Works on Westside Creek Diversion Area A have been completed. The perpetual easement shall be transferred for a nominal consideration . and shall be in a form and have a content that is satisfactory to the Municipality's solicitor acting reasonably." (j) Sub-paragraph 16(b) is deleted and replaced with the following: -6- "16(b) All transfers to the Municipality and by the Municipality to CLOCA which are made to implement the intent of these Principles shall have a form and content satisfactory to the Municipality's solicitor,acting reasonably. All governmental fees and taxes payable on the registration of transfers to the Municipality shall be paid by Blue Circle. All governmental fees and taxes payable on the registration of transfers to CLOCA shall be paid in equal shares by Blue Circle and by the Municipality."; (k) New paragraph 23A, 23B, and 23C are added as follows: "23A. Transfer of Various Lands and Easements In each case in which the Principles provide for the transfer of land or an easement to CLOCA or as otherwise directed by the Municipality, the transfer shall be made by Blue Circle to the Municipality. Thereafter, except in the case of the easements in the Westside Creek Diversion Area A transferred to the Municipality pursuant to the agreements referred to in clauses 7(a)(i), 8(b)(viii) and paragraph 13 hereof, the Municipality may transfer the same to CLOCA. In addition to all governmental fees and taxes payable on the registration of transfers to the Municipality, Blue Circle shall pay to the Municipality on demand the reasonable cost to the Municipality for the services of a qualified appraiser in preparing the appraisal required by section 193 of the Municipal Act before the lands which are transferred by Blue Circle.to the Municipality pursuant to the Principles can be declared surplus and transferred to CLOCA. -7- 23B. Indemnity (a) Blue Circle covenants and agrees to indemnify and hold harmless the Municipality from and against all direct, indirect and/or consequential costs, expenses, losses, damages, actions,causes of action, interest claims, charges, proceedings, claims or demands arising out of the construction, installation, maintenance,repair or use of the Westside Creek Diversion Works from and after the date of the transfer of the perpetual easements to the Municipality as contemplated by clause 7(a)(i)hereof(the"Commencement Date")or any act or omission of the servants, agents, sublicensees and contractors relating to the Westside Creek Diversion Works arising after the Commencement Date, including without limiting the generality of the foregoing, all costs and expenses incurred in restoring or rectifying the aforesaid Works or complying with any requests, orders or notices issued pursuant to any applicable legislation and relating to or arising out of the aforesaid Works, the construction, installation, repair and maintenance thereof. (b) Without limiting the generality of the foregoing,Blue Circle shall indemnify the Municipality and save it harmless from and against any and all direct, indirect and or consequential costs, losses,claims, actions, damages, liability and expenses in connection with loss of life or personal injury or property damage arising from or in any way connected with the Works, including without limitation, any occurrence caused or arising during access to or egress from the Works by Blue Circle, by CLOCA, or by their respective agents, contractors, employees, servants, licensees and invitees, from and after the Commencement Date whatsoever in,upon or at the Works or in the vicinity thereof or the use thereof and without limiting the generality of the foregoing, against any event occasioned wholly or in part by any act or omission of Blue Circle or CLOCA, their agents, contractors, employees, -8- servants, licensees or sublicensees in connection with or related to the inspection, maintenance or repairs of the Works or by anyone permitted by Blue Circle or by CLOCA to be on the Westside Creek Diversion Area"A" or such Works or in the vicinity of the Works, as provided or contemplated herein, except to the extent contributed to by the intentional acts of the Municipality and those for whom it is in law responsible. If the Municipality shall be made a party to any litigation commenced by or against Blue Circle or by or against CLOCA, then Blue Circle shall protect and hold the Municipality harmless and shall pay all reasonable costs, expenses and legal fees incurred or paid by the Municipality in connection with such litigation. Without limiting the foregoing, such indemnification shall include all costs, expenses and damages direct, indirect and consequential which may arise from any damage or injury from any of the Works occasioned wholly or in part by the act or omission of Blue Circle, CLOCA, or by their respective agents, contractors, employees, servants, licensees and sublicensees or by anyone permitted to be on or in the vicinity of the Works or the Westside Creek Diversion Area "A" by the Municipality, except to the extent contributed to by the intentional acts of the Municipality or those for whom it is in law responsible. (c) Blue Circle shall at all times have the right at its option and expense to dispute and contest in the name of the Municipality any third party claim for which it admits,in writing,that in the event of such third party claim is held to be valid, Blue Circle is liable to indemnify the Municipality under this paragraph 23B. The Municipality shall fully co-operate with Blue Circle and its counsel in any proceedings with respect to any such third party claim and Blue Circle shall pay the actual costs reasonably incurred by the Municipality. If Blue Circle does not admit it is liable to indemnify the Municipality under this paragraph 23B in respect of the claim, the -9- Municipality shall ensure that Blue Circle is kept advised of the progress of such third party claim and the Municipality may, but is not obligated to, assert any defence to such third party claim as it deems reasonable in the circumstances without in any way reducing the liability of Blue Circle under this indemnification. (d) If Blue Circle exercises the option to defend a third party claim, then the following provisions shall apply: (i) the Municipality shall be kept fully informed of all aspects of the conduct of the dispute and shall be provided with copies of all correspondence related thereto; (ii) the appointment of solicitors or other professional advisors shall be subject to the prior approval,in writing,of the Municipality, not to be unreasonably withheld or delayed. Without limiting the foregoing, the Municipality may engage its own counsel or other professional advisors, all reasonable expenses of whom are to be for the account of Blue Circle to review the conduct of such dispute and to advise the Municipality with respect to the same; (iii) Blue Circle shall not settle or compromise any third parry claim or agree on any matter in the conduct of the dispute which may affect the liability of the Municipality to any person whatsoever without the prior written approval of the Municipality, such approval not to be unreasonably withheld or delayed; -10- (iv) Blue Circle shall be entitled to reasonable access to all relevant books and records of the Municipality and to its employees that are necessary for the purpose of defending such third party claim; (v) If the Municipality, acting reasonably, believes there is liability for such third party claim,which may be in excess of any insurance then held by Blue Circle, or any contractor or licensee of Blue Circle for such third party claim or if the Municipality, acting reasonably, believes that any insurer in respect of same may deny coverage, then the Municipality may at its option require Blue Circle to post such additional security as may be reasonably required to secure the potential liability for such claim, and such security may include letters of credit, financial instruments, performance bonds (if applicable), cash, guarantees from parties whose covenant is satisfactory to the Municipality in its unfettered discretion, exercised, however in good faith, or any combination thereof. (e) Blue Circle shall provide, at its expense, and keep in force insurance of the type commonly called "comprehensive general liability insurance", which insurance shall be with insurers acceptable to the Municipality acting reasonably and shall include coverage for personal injury (including death), property damage and consequential damage all on a"per occurrence"basis with respect to all operations carried on upon the Westside Creek Diversion Area"A" or with respect to the Westside Creek Diversion Works by-either party with limits for any one occurrence or claim of not less than $25,000,000.00(Twenty-Five Million Dollars). Such insurance shall name the Municipality as an insured and contain a cross-liability clause, such insurance at the option of Blue Circle may form part of Blue Circle's blanket insurance policy and shall provide or the insurer shall agree that such policy may not be cancelled or its coverage reduced without thirty (30) days prior written notice to the Municipality. Blue Circle shall keep on deposit with the Municipality a certificate of such portion of any blanket insurance policy and all renewals thereof and all endorsements thereof sufficient to show at all times the current status of such insurance as required under this clause 23B(e) and without limiting the generality of the foregoing,Blue Circle shall furnish the Municipality proof of the renewal or replacement of every such policy at least one month prior to the expiry of such policy. If and whenever Blue Circle fails to comply with the foregoing, the Municipality upon at least fifteen(15)days prior notice or such shorter period as is available prior to the expiry of the insurance policy may effect such insurance for the benefit of the Municipality and Blue Circle jointly, and if the Municipality does so, any additional premium paid by it beyond its usual insurance costs shall be recoverable from Blue Circle on demand. 23C. Arbitration and Termination (a) Without limiting the right of the Municipality to require the remedy of any perceived default prior to either the commencement or the conclusion of the arbitration process provided for herein, any dispute which arises between the parties hereto concerning any matter in connection with paragraph 23B hereof shall be determined by arbitration by either party giving written notice to the other of such dispute, setting out the issues in dispute with sufficient particularity to permit the other party to adequately respond thereto,and such arbitration shall be pursuant to the Arbitration Act (Ontario), as amended, from time to time or pursuant to any legislation substituted therefor and subject to the following provisions: -12- (b) there shall be three arbitrators appointed in the manner following, that is to say: (i) either party may appoint an arbitrator and on doing so shall forthwith give notice in writing thereof to the other party; (ii) the party in respect of a notice of the appointment of an arbitrator as aforesaid shall, unless it has already done so, within fifteen (15) business days from the date of receiving the notice appoint an arbitrator and give notice thereof to the other party; (iii) if either party does not appoint an arbitrator within the time limited under the preceding clause 23C(b)(ii),the other party may apply to a Judge of the Ontario Superior Court of Justice to appoint an arbitrator on behalf of and at the expense of the parry so in default; (iv) the arbitrators appointed by or for the parties hereto shall appoint a third arbitrator and,if they fail to do so within seven(7)days after the last of them was appointed,either party at its own costs and on notice to the other may apply to a Judge of the Ontario Superior Court of Justice to appoint a third arbitrator; (c) the arbitrator or arbitrators shall have the power to obtain the assistance, advice or opinion of such engineer, architect, surveyor, appraiser, valuer or other expert as he or they may think fit and shall have the discretion to act upon any assistance, advice or opinion so obtained; (d) the arbitrators shall in their discretion determine which and to what extent each party shall bear the costs and expenses of the arbitration; Y -13- (e) each of the parties will do all acts and things and execute all deeds and instruments necessary to give effect to any award made upon any such arbitration; (f) the decision of the arbitrator or arbitrators shall be in writing and shall be binding upon the parties hereto. Paragraphs 23B and 23C shall not be terminated by either party except as provided herein or except by mutual consent." (1) Schedule"J" is amended by: (i) under the heading "Commencement Date", deleting "Winter 1998" and replacing it with"Spring, 2001"; (ii) under the heading "Schedule of Work", deleting "Winter 1998" and replacing it with"Spring, 2001"; and (iii) under the heading "Completion Date", deleting "Winter 2001" and replacing it with"Winter, 2004"; and (m) Paragraph 24 of the Principles as amended by the First, Second and Third Amending Agreements is further amended by deleting the date"June 30, 2000" and replacing it with the date"July 31, 2000". 2. All other terms and conditions of the Principles shall remain the same and time shall be of the essence. -14- 3. This Fourth Amending Agreement to the Principles of Understanding may be executed by the Parties in counterpart. IN WITNESS WHEREOF the Parties hereto have hereunto set their hands and seals the day and year first above written and the Parties hereto have hereunto affixed their corporate seals by the hands of their proper officers duly authorized in that behalf. SIGNED, SEALED AND ) THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON DELIVERED ) in the presence of ) Mayor Clerk BLUE CIRCLE CANADA INC. Per: 2. Name: v Title: L,,�J�; t,; p Mc tL E'NOO N v P s e�(L 7 Per: Name: Title: Q:\HEFFERON\CLARING\BLUECIRC\AGREES\AMEND4.DR3