HomeMy WebLinkAbout2000-102 THE CORPORATION OF
THE MUNICIPALITY OF CLARINGTON
BY-LAW NUMBER 2000-102
being a by-law to authorize the execution by the Municipality of
Clarington of an agreement for the transfer of an easement to the
Municipality in land necessary to accommodate the planned diversion
of Westside Creek
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 Agreement between Ontario One Networks Inc., Blue Circle Canada Inc.
and the Municipality of Clarington, 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 re, ayor
Patti L arrie, erk
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ATTACI3MENT N0. 2
EASEMENT AGREEMENT
('n INTERESTIESTATE TRANSFERRED
Subject to the following terms and conditions, the right and easement to lay, construct, operate,
maintain,inspect,alter,repair,replace,reconstruct and remove certain works and vegetation for the
Westside Creek Diversion and other works appurtenant thereto (hereinafter called the "Westside
Creek Diversion Works") in, over, along,across, upon and under those parts of the Transferor's
land described in Box(5)(which lands are herein called the "Strip").Together with the right to the
Transferee,its servants,agents and contractors with all necessary vehicles,supplies and equipment
to enter onto the Strip by the Transferor's access routes (as designated from time to time by the
Transferor) and pass and repass over the Strip for the purpose of exercising or enjoying any of the
rights herein contained. The easement and rights granted herein are for the benefit of each of the
following lands:
(a) those portions of the Transferee's lands to be used as part of a quarry operation and
more particularly described in Schedule "I" attached hereto (the "Blue Circle
Lands");
(b) those portions of the Transferee's lands to be used forconservation and parkpurposes
and to be conveyed either to the Central Lake Ontario Conservation Authority
("CLOCA") or to The Corporation of the Municipality of Clarington (the
"Municipality") and more particularly described in Schedule "II" attached hereto
(the "Reconfigured Westside Marsh"): and
(c) those portions of the Municipality's lands comprising Cove Road, its extension
westerly and the bridge over the Westside Creek ("Cove Road Westside Creek
Bridge") and more particularly described in Schedule If attached hereto.
The terms and conditions above-mentioned which the Transferee covenants and agrees to observe
and to be bound by are as follows:
1. This indenture shall be effective from the * day of June, 2000.
2. (a) Prior to the commencement of construction of the Westside Creek Diversion W orks,
the Transferee shall pay to the Transferor for the easement and other rights hereby
granted the sum of Two Hundred Seventy-Two Thousand Four Hundred and Forty
Dollars ($256,240.00), plus G.S.T., if applicable. The preceding amount includes
compensation for the easement rights required for the Westside Creek Diversion
which include the easement lands and access as provided for herein. The parties
agree that except as provided for herein there shall be no readjustment in the
compensation after final completion of the Westside Creek Diversion Works
notwithstanding any change in the description required pursuant to Section 2(c)
hereof.
(b) At the time of execution of this indenture,the Transferee shall pay to the Transferor
the sum of Twenty-Two Thousand Five Hundred Dollars f'..fr�($22.500.001
representing payment in full for all of the Transferor's costs incurred to date relating
to the negotiations for this indenture, the Construction Agreement (as hereinafter
defined), review of all plans, specifications, drawings and other documents
respecting this indenture and the Westside Creek Diversion Works but for greater
certainty, this shall not constitute payment of any of the Transferor's costs relating
to any revision or amendment to this indenture, the Construction Agreement, any
new, amended or revised plans, specifications, drawings or other documents
respecting this indenture or the Westside Creek Diversion Works,supervision of the
construction of the Westside Creek Diversion Works or legal fees and disbursements
incurred by the Transferor in connection of the same,whether such legal fees and
disbursements were incurred before or after the date of this indenture.
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(c) In the event that any portion of the Westside Creek Diversion Works as constructed
is:
(i) beyond the boundary of the Strip: and
(ii) further than 16 meters from any transmission tower or footing
therefore:and
(iii) not more than 0.3 meters from the boundaries of the Strip:
the Transferor and the Transferee agree to enter into an agreement amending this
indenture,with the Transferee to arrange at its cost for an Ontario Land Surveyor to
prepare a new description and reference plan for the Westside Creek Diversion
Works as constructed and setting out the correct description of the Strip as amended
and such amending agreement and revised reference plan shall be registered on title
to the Strip.
3. The Transferee shall,except in case of emergency,before commencing any work authorized
by this indenture or intended so to be, give to the Transferor forty-eight hours' previous
written notice,and in cases of emergency such previous notice as is reasonably possible,and
during the time period of any active construction work, repair and maintenance, the
Transferor may have its representatives present,whose reasonable time and expense shall be
paid(except in the event of emergencies,in which case all of such time and expense incurred
in good faith without limitation shall be paid)by the Transferee on presentation of detailed
invoices therefor. The cost to the Transferee of any such representative shall be determined
on the basis of the actual amounts paid by the Transferor, for such representatives who are
not employees of the Transferor,or the Transferor's fully laboured rate(as determined by the
Transferor from time to time) for such representatives who are employees of the Transferor
(the "Fully Laboured Rate"). For greater certainty,the term"Fully Laboured Rate"asused
in this indenture shall mean the amount calculated by the Transferor as its cost of providing
the services of its employees,based on the individual employee's salary or wage,benefits and
additional costs related thereto (including Employment Insurance, Canada Pension Plan,
other pension plan costs,other benefits)and a factor of ten(10%)per cent for attribution of
overhead. In addition,the Transferor may charge to the Transferee and the Transferee shall
pay the amount reasonably charged to the Transferor(except in the event of emergencies,in
which case all of such charges incurred in good faith without limitation shall be paid) for
each piece of machinery or equipment used by its representatives in such circumstances,or
if such equipment is owned or leased by the Transferor,the Transferor may charge for such
machinery or equipment an hourly rate established from time to time (or if the Transferor
does not regularly establish such rates, established at that time) by the Transferor on a
reasonable basis. The Transferor shall disclose to the Transferee the basis upon which it
established such machinery and equipment charge-out rates.
4. The Transferee in connection with laying,constructing,operating, maintaining,inspecting,
altering, repairing, replacing, reconstructing or removing the Westside Creek Diversion
Works or any part or parts of them shall not interfere in any way with or cause any damage
to any Works of the Transferor (as defined herein) now, constructed on the Strip or on
adjacent Transferor's lands and during any such activities,the Transferee shall comply with
the Occupational Health and Safety Act, R.S.O. 1990, c. 0.1, as amended, and any
regulations passed thereunder and,with respect to the original construction of the Westside
Creek Diversion Works,with a construction agreement entered into between the Transferor
and the Transferee dated the same date as this indenture (which agreement is herein called
the "Constvuetion Agreement").
5. The Transferee shall maintain the Westside Creek Diversion Works in a good and substantial
state of repair at all times.
6. The Transferee shall comply with all statutes, by-laws, rules, regulations, orders of, and
agreements and undertakings entered into by the Transferee with and to,every governmental
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or other competent authority relating in any manner to the Westside Creek Diversion Works
or the exercise of any of the rights or the easement herein granted.
7. The Transferor and anyone acting pursuant to its authority (including licensees,
sub-licensees, permitted users and occupants) may at any time enter on the Strip and the
Transferor's adjacent lands and inspect all existing and future works of the Transferor
whether for Ontario Hydro or for such licensees, sub-licensees and such other users and
occupiers as are permitted by Ontario Hydro (the "Works of the Transferor") and/or
maintain, repair, rearrange or replace, add to, relocate anywhere on the Strip or the
Transferor's adjacent lands and/or remove any of the Works of the Transferor and other of
the Transferor's works as defined in the Electricity Act, 1995 (being Schedule "A" of the
Energy Competition Act,S.O. 1995, c. 15,as amended or replaced from time to time, and,
with respect to electricity transmission facilities only, may install, construct, add, inspect,
maintain,repair,alter,rearrange,replace,relocate anywhere on the Strip and the Transferor's
adjacent lands and/or remove such new works or equipment as the Transfer or determines
necessary or desirable. Notwithstanding the foregoing, in taking or permitting any of the
actions contemplated in this Section 7, the Transferor shall not beyond the extent required
disrupt, damage or otherwise interfere with the Westside Creek Diversion Works and
acknowledges and agrees that to the extent changes to the Westside Creek Diversion Works
are required to accommodate changes to the Works of the Transferor, the Transferor shall
be entitled to make such changes so long as it gives prior notice thereof to the Transferee and
obtains the prior written consent of the Transferee to such changes,such consent not to be
unreasonably withheld. The cost of such changes to the Westside Creek Diversion Works
required to accommodate changes to electrical transmission facilities only shall be borne as
follows:
(a) during the first ten(10) years after the granting of the easements herein,100%by the
Transferor;
(b) during the eleventh(11th)through the twentieth(20th)years after the granting of the
easements herein,inclusive,50%by the Transferor and 50%by the Transferee; and
(c) thereafter,by the Transferee.
In making such changes, the Transferor shall comply with all statutes, by-laws, rules or
regulations of, orders of and agreements entered into by the Transferee with and to every
governmental or other competent authority relating to the Westside Creek Diversion Works.
If any loss or damage results to the Works of the Transferor, whether on the Strip or the
Transferor's adjacent lands,by reason of or in consequence of the Transferor exercising its
rights in this Section 7, then except where the same was required as a result of any default
of the Transferee or defect in the Westside Creek Diversion Works,the Transferor shall be
responsible,for such loss and damage and without limiting the generality of the foregoing,
the Transferee's indemnity hereinafter set out shall not apply to such loss or damage.
S. The Transferee covenants and agrees to indemnify and hold harmless the Transferor from
and againstall direct,indirect and/or consequential costs,expenses,losses,damages,actions,
causes of action, interest claims,charges,proceedings,claims or demands arising out of its
use or occupation of the Strip after the date of this Transfer and Grant of Easement (the
"Commencement Date") or any act or omission by its servants,agents,sub-licensees and
contractors relating to the Strip and arising after the Commencement Date or arising out of.
(a) any spill of pollutants(as defined in theEnviromnental Protection Act,R.S.O. 1990,
c. E.19) caused by the actions of the Transferee or by its servants, agents and
contractors on all or any part of the Strip or any other lands of the Transferor
occurring from and after the Commencement Date of this easement grant and
occurring during the term; and
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(b) any contravention by the Transferee or by its servants,agents and contractors of any
provision of any environmental legislation including but not limited to the
Environmental Protection Act, R.S.O. 1990, c. E.19 and the Ontario Crater
Resources Act, R.S.O. 1990, c. 0.40 to the extent that such contravention occurred
from and after the Commencement Date of this easement grant and during the term:
including,without limiting the generality of the foregoing, all costs and expenses incurred
in restoring or rectifying the Strip or complying with any requests, orders or notices issued
pursuant to any applicable legislation and relating to or arising out of the Transferee's use of
or easement .rights within the Strip.
P
Without limiting the foregoing, the Transferee shall indemnify the Transferor and save it
harmless from and against any and all direct, indirect and/or consequential costs, loss,
claims, actions, damages, liability and expenses in connection with loss of life, personal
injury or damage to property arising from any occurrence caused or arising from the
occupancy or use by the Transferee of the Strip,including without limitation any occurrence
caused or arising during access to or egress from the Strip by the Transferee, its agents,
contractors, employees, servants, licensees and sub-licensees from and after the
Commencement Date,and any renewals thereof,whatsoever in, upon or at the Strip,or the
occupancy or use by the Transferee of the Strip or any part thereof,and without limiting the
generality of the foregoing, against any event occasioned wholly or in part by any act or
omission of the Transferee, its agents, contractors, employees, servants, licensees or
sub-licensees or by anyone permitted to be on the Strip by the Transferee, except to the
extent contributed to by the intentional acts of the Transferor and those for whom it is in law
responsible. In the event the Transferor shall be made a party to any litigation commenced
by or against the Transferee, then the Transferee shall protect and hold the Transferor
harmless and shall pay all reasonable costs,expenses and legal fees incurred or paid by the
Transferor 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 to any Works of the Transfer oroccasioned
wholly or in part by any act or omission of the Transferee,its agents,contractors,employees,
servants, licensees and sub-licensees or by anyone permitted to be on the Strip by the
Transferee,except to the extent contributed to by the intentional acts of the Transferor and
those for whom it is in law responsible.
The Transferee shall at all times have the right, at its option and expense, to dispute and
contest in the name of the Transferor any third party claims for which it admits in writing
that, in the event such third party claim is held to be valid, the Transferee is liable to
indemnify the Transferorunder this Section 8.The Transferor shall fully co-operate with the
Transferee and its counsel in any proceedings with respect to any such third party claim and
the Transferee shall pay the actual costs reasonably incurred by the Transferor and the Fully
Laboured Rates for the employees of the Transferor. In the event the Transferee does not
admit that it is liable to indemnify the Transferor under this Section 8 in respect of a third
party claim, the Transferor shall ensure that the Transferee is kept advised of the progress
of such third party claim and may,but is not obligated to, assert such defence to such third
party claim as the Transferor deems reasonable in the circumstances without in any way
reducing liability of the Transferee under this indemnification.
If the Transferee exercises the option to defend a third party claim, then the following
provisions shall apply:
(i) the Transferor 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 Transferor, such
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approval not to be unreasonably withheld or delayed. Without
limiting the foregoing,the Transferor may engage its own counsel or
other professional advisors,all reasonable expenses of whom are to
be for the account of the Transferee, to review the conduct of such
dispute and to advise the Transferor with respect to the same;
(iii) the Transferee shall not settle or compromise any third party claim or
Y
agree on any matter in the conduct of the dispute which may affect
the liability of the Transferor to any person whatsoever without the
prior written approval of the Transferor, such approval not to be
unreasonably withheld or delayed;
(iv) the Transferee shall be entitled to reasonable access to all relevant
books and records of the Transferor that are necessary for the
purposes of defending such third party claim: and
(v) if the Transferor,acting reasonably,believes that there is liability for
such third party claim which may be in excess of any insurances then
held by the Transferee or any contractor or licensee of the Transferee
for such third party claim (or if the Transferor, acting reasonably,
believes that any insurer in respect of the same may deny coverage),
then the Transferor may at its option require the Transferee to post
such security as may be reasonably required to secure the potential
liability forsuch 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
Transferor in it unfettered discretion, exercised, however, in good
faith, or any combination thereof.
9. The Transferee shall assume liability for and pay as they become due all taxes, rates, and
assessments of every kind whatever,or any statutory amounts or grants in lieu thereof,that
may be imposed on the Transferor or the Strip by reason of the Westside Creek Diversion
Works or by reason of any of the rights or the easement granted herein and shall at all times
indemnify the Transferorfrom and against all such taxes,rates,and assessments,or amounts
in lieu thereof.
10. Notwithstanding anything herein contained to the contrary the Westside Creek Diversion
Works and all other property of the Transferee at any time on the Strip or on adjacent
Transferor's land shall be at the sole risk of the Transferee and the Transferor shall not be
liable for any loss or damage thereto however occurring and the Transferee releases the
Transferor from all claims and demands in respect of any such loss or damage,except to the
extent contributed to by the intentional acts of the Transferor and those for whom it is in law
responsible.
11. No right,title or interest in or to the Strip or any part or parts of it or any adjacent land of the
Transferor shall be acquired by the Transferee except as expressly set out in and subject to
all the terms and conditions of this indenture.
12. (a) Within six(6) months of the completion of the end of the monitoring period for the
construction of the Westside Creek Diversion Works in accordance with the terms
of this indenture and the Construction Agreement, the Transferee shall assign this
indenture and the rights and easement conferred by it to the Municipality in the form
of Transfer of Easement Agreement annexed as Schedule III and the Transferor shall
agree to be a party to such assignment for the purpose of reconfirming the grant of
easement and other rights hereunder to the Municipality and for the purpose of
consenting to such assignment. The said assignment shall reserve unto Blue Circle
Canada Inc. and its successors the rights of access granted to the Transferee herein
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for the purposes of remedying defaults in the manner provided in section 13 hereof.
Blue Circle Canada Inc. is not thereby released from its obligations and liabilities
hereunder by reason of the transfer of easement and accordingly Blue Circle Canada
Inc. and its successors shall be entitled to the continuing rights as set out in sections
8 and 13 to dispute and contest third party claims for which it may be liable to the
Transferor and relating to defaults under this indenture, all as more particularly set
out in sections 8 and 13.The Municipality has signed this indenture for the purpose
of confirming its agreement to enter into the annexed form of transfer of easement
agreement with the Transferor and the Transferee upon the completion of the
Westside Creek Diversion Works and expiry of the said monitoring period.
(b) Save as set out above,the Transferee shall not transfer,assign orsublet this indenture
or any rights or easement conferred by it without the previous written consent of the
Transferor.Such consent,in respect only of a transfer,assignment or subletting to the
parent,associate,affiliate or subsidiary corporation of the Transferee or a corporation
formed by the Transferee and others as a result of a merger, amalgamation or
corporate reorganization shall not be unreasonably withheld or delayed;provided as
a term of any assignment,any such new transferee shall enter into an agreement with
the Transferor agreeing to assume the obligations under this indenture.
(c) The Transferor agrees that during the term of this easement, representatives of
CLOCA, at CLOCA's cost and risk, shall be permitted access to the Strip and the
Westside Creek Diversion Works for the purposes of inspecting and monitoring the
Westside Creek Diversion W orks and for the purposes of ensuring that the Transferee
carries out its obligations under this indenture with respect to the Westside Creek
Diversion Works.
13. If the Transferee should at any time fail to carry out any of the terms and conditions herein
contained,the Transferor may give notice to the Transferee and, if Blue Circle Canada Inc.
has transferred its rights hereunder,to Blue Circle Canada Inc. or its successors,specifying
such failure and if the failure is not remedied within fifteen(15) business days of the notice
being mailed or such longer period of time (as may be reasonably required so long as the
Transferee has commenced and continuously and diligently proceeds to remedy such default
in accordance with a written plan prepared by the Transferee and approved by the Transferor
(and, if such plan requires any deviation from the approved design of Westside Creek
Diversion Works, prior to the transfer of the Fasement to the Municipality, by the
Municipality),such approval not to be unreasonably withheld or delayed,the Transferor may
perform in a reasonable manner such obligations for the account of the Transferee;provided
that in the event of a perceived emergency, the Transferor shall be entitled to cure such
default immediately,and shall provide such previous notice as is reasonably possible to the
Transferee prior to so doing, but failure to provide such notice shall not impair the
Transferor's right to cure such default in the event of a perceived emergency.In the event that
the Transferor remedies the default of the Transferee,the Transferee shall be responsible for
reimbursing the Transferor for all costs, expenses and damages reasonably incurred (or in
the case the Transferor in good faith believes there to be an emergency, incurred in good
faith)by the Transferor arising from such default upon submission of a detailed invoice from
the Transferor. If the Transferee either fails to remedy any default within the time period set
out in this Section 13 orfails to reimburse the Transferor for all costs,expenses and damages
incurred, then the Transferor shall be entitled to terminate this indenture upon fifteen (15)
business days' notice to the Transferee; provided that contemporaneously with such notice
to the Transferee, the Transferor shall also provide a copy of such termination notice to the
Municipality. The Transferor shall upon expiration of the said fifteen (15) business day
period, and subject to the following, be entitled to take possession of the Westside Creek
Diversion Works, exclude from the Strip any parties claiming an interest under this
indenture,and subject to any governmental orders, laws or regulations, restore the Strip to
its original condition, to the extent possible, and/or maintain all or some of the Westside
Creek Diversion Works for any period of time,all at the expense of the Transferee. The right
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of termination provided for herein is subject to the qualification that if, prior to such
termination becoming effective, the Transferee has served the Transferor with notice of
arbitration with respect to the default alleged by the Transferor as provided for in paragraph
16 hereof, such termination shall not be effective unless and until the arbitrators have,
determined that the Transferor is entitled to terminate this indenture.Without limiting any
other remedies of the Transferor, the right of termination is further subject to the
qualification that if the default is not of a nature which in the Transferor's discretion,
exercised in good faith, poses an immediate or immanent danger to the Works of the
Transferor or to any person,the right of the Transferor to terminate shall not be excercisable
until Blue Circle Canada Inc. or its successors have had a reasonable opportunity to cure the
default.
14. The Transferee shall provide at its expense and keep in force, throughout the term of this
indenture, insurance of the type commonly called Comprehensive General Liability
Insurance which insurance shall be with insurers acceptable to the Transferor, 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
out upon the Strip and the Transferee's use and occupancy of the Strip with limits forany one
occurrence or claim not less than$25,000,000.00.Such insurance shall name the Transferor
and the Transferee as co-insureds (and may also include the Municipality and CLOCA as
co-insureds) and contain a cross-liability clause. Such insurance at the option of the
Transferee may form part of the Transferee'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 Transferor. The Transferee shall keep on deposit
with the Transferor a certificate of such portion of the blanket insurance policy and all
renewals thereof and all endorsements thereto sufficient to show at all times the current
status of such insurance as required under this Section 14 and without limiting the generality
of the foregoing, the Transferee shall furnish to the Transferor proof of the renewal or
replacement of every such policy at least one month prior to the expiry of such policy. If and
whenever the Transferee fails to comply with the foregoing, the Transferor 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 Transferor and Transferee
jointly and if the Transferor does so,any premium paid by it shall be recoverable from the
Transferee payable on demand.
15. This indenture shall run with the Strip and shall enure to the benefit of and be binding upon
the Transferorand the Transferee and,except as otherwise stipulated herein,their respective
successors and assigns.
16. Without limiting the right of the Transferor 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 this indenture 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:
(a) there shall be three arbitrators appointed in the manner following, that is to say:
(i) eitherparty may appoint an arbitrator and on doing so shall forthwith
give notice in writing thereof to the other party:
(ii) the party in receipt 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:
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(iii) if either party does not appoint an arbitrator within the time limited
under the preceding subparagraph ftji , the other party may apply
to aJudge of the Supreme Court of Ontario 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 cost and on notice
to the other may apply to a Judge of the Supreme Court of Ontario to
appoint a third arbitrator;
(b) 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;
(c) the arbitrators shall in their discretion determine which and to what extent each party
shall bear the costs and expenses of the arbitration:
(d) each of the parties will do all acts and things and execute all deed and instruments
necessary to give effect to any award made upon any such arbitration;
(e) the decision of the arbitrator or arbitrators shall be in writing and shall be binding
upon the parties hereto.
17. All payments and communications which may be or are required to be given by any party
to the other herein, shall (in the absence of any specific provision to the contrary) be in
writing and delivered or sent by prepaid registered mail or telecopier to the parties at their
following respective addresses:
For Blue Circle:
400 Waverly Road South
Bowmanville, ON LIC 3K3
Attention: Plant Manager
Facsimile No.: (905) 623-4695
With a copy to the attention of:
Blue Circle America Inc.
Two Parkway Centre
1100 - 18 8 Parkway Place
Marietta,Georgia
30067 U.S.A.
Attention: Vice President and General Counsel
Facsimile No.: (770) 499-2830
For Hydro:
Ontario Hydro Networks Company Inc.
700 University Avenue
Toronto, Ontario M58 IX6
Attention: The Secretary
June 7,2000
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Facsimile No.:
For the Municipality:
The Corporation of the Municipality of Clarington
40 Temperance Street
Bowmanville, ON L1C 3A6
Attention: Chief Administrative Officer
Facsimile No.: (905) 623-0830
and if any such payment o r communication is sent by prepaid registered mail,it sball,subject
to the following sentence, be conclusively deemed to have been received on the third
business day following the mailing thereof and, if delivered or telecopied, it shall be
conclusively deemed to have been received at the time delivery or transmission.
Notwithstanding the foregoing provisions with respect mailing,in the event that it may be
reasonably anticipated that, due to any strike, lock-out or similar event involving an
interruption in postal service,any payment or communication will not be received by the
addressee by no later than the third business day following the mailing thereof, then the
mailing of any such payment or communication as aforesaid shall not be an effective means
of sending the same but rather any payment or communication must then be sent by an
alternative means of transportation which it may reasonably be anticipated will cause the
payment or communication to be received reasonably expeditiously by the addressee. Any
party may from time to time change its address hereinbefore set forth by notice to the other
of them in accordance with this Section. For the purposes of this Agreement, a "business
a Saturday, Sunday or statutory holiday.
day" shall include every day except
18. This Easement shall be interpreted in accordance with the laws of the Province of Ontario
and of Canada applicable therein,and the Transferor and Transferee irrevocably attorn to the
jurisdiction of the courts of the Province of Ontario.
19. Expect as provided for below,neither the Transferee nor the Transferor shall be regarded as
being in default in performance of any obligation hereunder during the period of any
unavoidable delay relating thereto. For the purposes of this agreement"unavoidable delay"
means any delay for the duration of the delay which is imposed by reason of strikes,
lockouts, riots, wars or acts of military authority, acts of public enemies, sabotage,
epidemics,washouts,nuclear and radiation activity or fallouts,rebellion or civil commotion,
fire or explosion:flood,wind,water,earthquake or other casualty,or an Act of God and any
act, omission or event whether of the kind herein enumerated or otherwise not within the
control of the Transferee or the Transferor, as the case may be, none of which has been
caused by the deliberate default or act or omission by such party and none of which has been
avoidable by the exercise of reasonable effort or foresight by such party.Further,none of the
foregoing shall apply to any default by the Transferee which affects,damages or threatens
to affect or damage any transmission tower or footing therefore or any other electricity
transmission facility or equipment of. Each of the Transferee and the Transferor shall notify
the other of the commencement,duration and consequence(so far as the same is within the
knowledge of the party in question) of any unavoidable delay affecting the performance of
any of its obligations hereunder within thirty (30) days of such knowledge.
20. The grantof perpetual easement rights under this indenture is subject to the express condition
that it is to be effective only if the provisions of section 50 of the PlanningAct,R.S.O. 1990,
c.P.13,as amended,are complied with.Until a consent or exemption under section 50 of the
said Planning Act is obtained, the term of this indenture is hereby reduced and amended so
that it is effective to but terminates at the expiration of twenty-one (21) years less one day
from and including the date hereof. The Transferor agrees that the Transferee may, at the
Transferee's expense,apply for a consent or an exemption pursuant to section 50 relating to
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the grant of easement under this indenture at any time prior to the expiration of 21 years less
one day from and including the date hereof.The Transferor and the Transferee acknowledge
that upon the transfer of this indenture to the Municipality in accordance with section 12(a),
such transfer to the Municipality would comply with the provisions of section 50 of the
Planning Act as it now exists.
SuDe 7,2000
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May 25 June 7, 2000
401521.5 401152
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This redlined draft,generated by CompareRite-The Instant R.edliner,shows the differences between
original document : I:\APPS\DOCSOPEN\W&FIROSENMAW\0401S21.05
and revised document: I:\APPS\DOCSOPEN\W&F\ROSENMAW\0401521.06
CompareRite found 4 change(s) in the text
CompareRite found 2 change(s) in the notes
Deletions appear as struck-through text
Additions appear as double underlined text
June 7,2000
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GATE: 06/07100 TIME: 03:06 PM T0: Dannis Ha£Earon P 868-0306
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SCHEDULE III
TRANSFER OF EASEMENT
THISAGREEMENT made as of the_day of ,2000
AMONG:
HYDRO ONE NETWORKS INC.
(hereinafter called "Hydro")
OF THE FIRST PART
- and -
THE CORPORATION OF THE MUNCIPALITY OF
CLARINGTON
(hereinafter called the "Municipality")
OF THE SECOND PART
-and -
BLUE CIRCLE CANADA INC.
(hereinafter called "Blue Circle")
OF THE THIRD PART
WHEREAS:
A. Hydro has entered into an easement agreement dated the day of
2000 which was registered in the Land Registry Office for the Registry
Lan�Tvles Division of Durham(No. 40)on the_day of 2000 as
Instrument No. (the"Easement Agreement")in which Hydro transferred to Blue
Circle an easement over the Hydro lands as described therein for the purposes of the Westside Creek
Diversion.
B. As provided in section 12(a)of the Schedule to the Easement Agreement,Blue Circle
is transferring the rights and easements conferred by such Easement Agreement to the Municipality
with Hydro being a party for the purposes of reconfirming the grant of easements and other rights
under the Easement Agreement to the Municipality and for consenting to such assignment to the
Municipality.
Now THEREFORE THIS AGREEMENT WITNESSES for good and valuable
consideration(the receipt and sufficiency of which by each of the parties is hereby acknowledged),
the parties agree as follows:
1. The parties hereto acknowledge, confirm and agree that the foregoing recitals are
true.
2. Save as expressly provided to the contrary in this Transfer of Easement Agreement,
any defined terms used in the Easement Agreement shall have the same meaning for
the purposes of this Transfer of Easement Agreement.
3. Blue Circle hereby transfers,sets over and assigns to the Municipality as of and from
the date of this Agreement, the Transferee's rights under the Easement Agreement:
but reserving to Blue Circle those rights expressly set out in the Easement
Agreement.
June 7,2000
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4. Blue Circle confirms to the Municipality that:
(a) the payments required to be made by Blue Circle to Hydro pursuant
to sections 2(b)and 2(c)of the Easement Agreement have been made
in full: and
(b) Blue Circle has completed the construction of the Westside Creek
Diversion Works in accordance with the Construction Agreement and
the terms of the Easement Agreement and that the monitoring period
after completion of the construction of the Westside Creek Diversion
Works has been completed with any defaults by Blue Circle having
been remedied to Hydro's satisfaction.
5. Hydro confirms to the Municipality that:
(a) the payments required to be made by Blue Circle to Hydro pursuant
to sections 2(b)and 2(c)of the Easement Agreement have been made
in full: and
(b) Hydro has received the reports from Blue Circle's Consulting
Engineer and Geo-Environmental Engineer referred to in section 3 of
the Construction Agreement and upon review of such engineering
reports, Hydro is not aware of any defaults by Blue Circle under the
Construction Agreement or terms of the Easement Agreement and
that the monitoring period after completion of the construction of the
Westside Creek Diversion Works has been completed with any
defaults by Blue Circle of which Hydro is aware having been
remedied to Hydro's satisfaction.
6. Subject to sections 5 and 6 71 the Municipality agrees with Blue Circle and Hydro
that it will observe and perform the terms and covenants contained in the Easement
Agreement after the effective date of this Transfer of Easement Agreement and in
consideration thereof,Hydro hereby reconfirms the grant of easement contained in
the Easement Agreement in favour of the Municipality and consents to this Transfer
of Easement Agreement from Blue Circle to the Municipality;provided that nothing
herein shall release Blue Circle of any obligations under the Easement Agreement or
limit its liability under the Easement Agreement in accordance with its terms. Blue
Circle acknowledges and confirms, in favour of Hydro, that notwithstanding any
limitation of liability granted by Hydro to the Municipality, nothing in this
Agreement and in particular,without limiting the foregoing,the limitation of liability
in favour of the Municipality contained in section 7 below,shall not affect or limit
the indemnity obligations of Blue Circle given to Hydro under the Easement
Agreement.Hydro confirms that Blue Circle has retained continuing rights underand
subject to sections 8, 12 and 13 of the Easement Agreement for access to the
easement strip for remedying defaults and to dispute and contest third party claims
for which it may be liable to Hydro.
7. Hydro agrees that the liability of the Municipality arid,its successors and CLOCA
during such period of time as i4 the Mum ibis the holder of the easement interest
pursuant to the Easement Agreement shall be limited to liability in respect of risks
insured against under the Comprehensive General Liability Insurance policy referred
to in section 14 of the Easement Agreement which is issued to the Municipality with
coverage limits in the amount of the greater of $25,000,000.00 and the actual
coverage limits contained in the liability and casualty insurance held by the
Municipality from time to time in respect of liability for risks other than those
inenrred contracted by the Municipality under the Easement Agreement and this
Transfer of Easement.
June 7,2000
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S. Blue Circle and Hydro hereto do in all other respects confirm that the Easement
Agreement is in full force and effect, unchanged and unmodified except in
accordance with this Transfer of Easement Agreement and so far as Hydro is aware,
there is no default by Blue Circle under the Easement Agreement.
9. This Transfer of Easement Agreement shall enure to the benefit of and be binding
upon the parties hereto and their respective successors and assigns.
10. This Agreement shall be interpreted in accordance with the laws of the Province of
Ontario and of Canada applicable thereto and the parties hereto irrevocably attorn to
the jurisdiction of courts of the Province of Ontario.
IN WITNESS WHEREOF the parties hereto have duly executed this Agreement as of
the day of 12000.
HYDRO ONE NETWORKS INC.
Per:
Name:
Title:
Per:
Name:
Title:
I/We have authority to bind the Corporation.
THE CORPORATION OF THE
MUNCIPALITY OF CLARINGTON
Per:
Name:
Title:
Per:
Name:
Title:
I/We have authority to bind the Corporation.
BLUE CIRCLE CANADA INC.
Per:
Name:
Title:
Per:
Name:
Title:
I/We have authority to bind the Corporation.
June 7,7000
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Niaq 35,June.7 2000
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This redlined draft,generated by CompareRite-The Instant Redliner,shows the differences between
original document : I:\APPS\DOCSOPEN\W&P\ROSENMAW\0412663.04
and revised document: I:\APPS\DOCSOPEN\W&E\ROSENMAW\0412663.05
CompareRite found 6 change(s) in the text
CompareRite found 2 change(s) in the notes
Deletions appear as struck-through text
Additions appear as double underlined text
June 7,2000
412663.RED
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