HomeMy WebLinkAbout2009-110THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON
BY-LAW 2009-110
Being a by-law to authorize a Host Municipal Agreement between Ontario
Power Generation and The Corporation of the Municipality of Clarington
WHEREAS at their meeting held on July 13, 2009, the Council of the Municipality
of Clarington adopted the recommendations contained in Report CAO-003-09;
NOW THEREFORE THE CORPORATION OF THE MUNICIPALITY OF
CLARINGTON HEREBY ENACTS AS FOLLOWS:
THAT the Mayor and Municipal Clerk are hereby authorized to execute, on
behalf of The Corporation of the Municipality of Clarington and seal with
the Corporation Seal, a Host Municipal Agreement between Ontario
Power Generation and The Corporation of the Municipality of Clarington.
THAT the agreement attached hereto as Schedule "A" forms part of this
By-law.
By-law read a first and second time this 13th day of July, 2009.
By-law read a third time and finally passed this 13th day of July, 2009.
EXECUTION COPY
HOST MUNICIPALITY AGREEMENT
AUGUST 31, 2009
Between
ONTARIO POWER GENERATION INC.
and
THE CORPORATION OF THE MUNICIPALITY OF
CLARINGTON
HOST MUNICIPALITY AGREEMENT
This Agreement is effective as of August 31, 2009 between
ONTARIO POWER GENERATION INC., a
corporation existing under the laws of Ontario ("OPG"),
and
THE CORPORATION OF THE MUNICIPALITY OF
CLARINGTON, a corporation existing under the laws of
Ontario ("Clarington")
RECITALS
A. Whereas OPG is the owner of the Darlington Nuclear Generation Site, which
includes the Darlington Nuclear Generating Station, afour-unit nuclear generating
station, and vacant lands for potential nuclear plant new build located in the
Municipality of Clarington, Ontario;
B. Whereas this Agreement relates to New Build, which is a part of New Nuclear at
Darlington (referenced below), but New Build is limited to up to two (2) nuclear
generating units with a total electrical output of up to 3500 megawatts (MW) of
electrical generating capacity for supply to the Ontario grid;
C. Whereas the scope of the potential nuclear plant new development on the New
Build Site includes site preparation, construction, operation, refurbishment,
decommissioning and abandonment of up to four (4) new nucleaz reactors for the
production of up to 4,800 megawatts of electrical generating capacity for supply
to the Ontario grid, to be known as ("OPG's New Nuclear at Darlington") in the
Municipality of Clazington;
D. Whereas Clarington is recognized as the host municipality for New Build;
E. Whereas Clarington and OPG acknowledge the benefits New Build may bring to
Clazington and to the residents of the Municipality of Clarington (the
"Clarington Residents");
F. Whereas OPG acknowledges that local community support is desirable for the
success of New Build;
G. Whereas Clarington and OPG wish to ensure that the construction and operation
of New Build is carried out in the public interest and in the interest of the general
health, safety and welfare of the Clarington Residents;
H. Whereas the construction and operation of New Build must meet legally imposed
environmental, health, safety and security standards and Canada's international
obligations, the interpretation and scope of which fall primarily under the
jurisdiction of the CNSC;
I. Whereas it is not anticipated that New Build will cause significant adverse effects
on the social and economic life of Clarington and the Clarington Residents, based
on the implementation of a range of impact management measures, it is
anticipated that there will be some disturbance and disruption resulting from New
Build; and
Whereas OPG's predecessor historically had a host municipality agreement with
Clarington and its predecessors.
THEREFORE IN CONSIDERATION OF the covenants hereinafter contained and for
value received, the Parties agree as follows:
SECTION 1-INTENT AND INTERPRETATION
1.1 Definitions
In this Agreement, the following terms have the respective meanings set out below:
(a) Agreement means this host municipality agreement, including any recitals and
schedules, as amended or restated from time to time by an Amendment.
(b) Amendment means a written amendment agreement signed by the Parties which
makes any change to this Agreement or an amended or restated agreement.
Amend, Amends and Amended shall have similaz meanings.
(c) Applicable Laws, in respect of any person, property, transaction or event, means
all applicable laws, statutes, regulations, treaties, judgements and decrees
applicable to that person, property, transaction or event at the applicable time and,
whether or not having the force of law, all applicable Permits, Licences and
Approvals, requirements, requests, directives, rules, guidelines, standards,
specifications, codes, instructions, circulars, manuals, and policies of any relevant
technical organisation or any Governmental Authority having authority over that
person, property, transaction or event at the applicable time.
(d) Arbitrator means a single arbitrator and must be a retired judge of the Supreme
Court of Canada, the Superior Court of Justice (Ontario) or of any court of a
Canadian province having jurisdiction comparable to, or higher than that of such
court.
(e) BCA means the Building Code Act, 1992, S.O. 1992, a 23 (Ontario), as amended,
consolidated, supplemented, or replaced from time to time.
(f) Business Day means any day other than a Saturday, Sunday, New Year's Day,
Family Day, Good Friday, Easter Monday, Victoria Day, Canada Day, Civic
Holiday, Labour Day, Thanksgiving Day, Christmas Day and Boxing Day or any
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other public holiday declared by the federal or provincial government. Each
Business Day will end at 5:00 p.m. on that day.
(g) CEAA means the Canadian Environmental Assessment Act (Canada), as
amended, consolidated, supplemented, or replaced from time to time.
(h) CEAA Joint Review Panel means the joint review panel that constitutes a review
panel pursuant to the CEAA, and a panel of the CNSC pursuant to the Nuclear
Safety and Control Act (Canada) for the purpose of reviewing the CNSC Licence
to Prepare Site.
(i) C-H 1993 Agreement is as defined in Section 8 of this Agreement.
(j) CNSC means the Canadian Nuclear Safety Commission established under the
Nuclear Safety and Control Act (Canada) and any successor agency, board or
commission.
(k) CNSC Construction Licence means the nuclear power reactor construction
licence to be issued by the CNSC, pursuant to the Nuclear Safety and Control Act
(Canada), to OPG in respect of the construction of New Build, as amended or
replaced from time to time.
(1) CNSC Operating Licence means the nuclear power reactor operating licence to
be issued by the CNSC, pursuant to the Nuclear Safety and Control Act (Canada)
to OPG in respect of the operation of New Build, as amended or replaced from
time to time.
(m) CNSC Licence to Prepare Site means the nuclear reactor site preparation licence
to be issued by the CNSC, pursuant to the Nuclear Safety and Control Act
(Canada), to OPG in respect of the preparation of the New Build Site for the
construction of New Build, as amended or replaced from time to time.
(n) Darlington Nuclear Generation Site means the combination of the Existing Site
and the New Build Site.
(o) DCA means the Development Charges Act, 1997 (Ontario), as amended,
consolidated, supplemented, or replaced from time to time.
(p) EA Approval means the Environmental Impact Statement, and the results of the
CEAA Joint Review Panel process in respect thereof, including any report of the
CEAA Joint Review Panel, and including any follow up actions, conditions,
decision or recommendations of any Governmental Authority in respect thereof.
(q) Environmental Impact Statement means all technical and related studies, data,
modeling, analysis, documentation, reports, or other information submitted to the
CEAA-Joint Review Panel.
(r) Existing Facilities means the nuclear and ancillary facilities as located inside the
security fence of OPG on the Existing Site and all alterations or additions thereto
which are made from time to time.
(s) Existing Operations means all business and operations conducted at the Existing
Facilites including any refurbishment activities.
(t) Existing Site means the land as described and depicted within the red boundary
line on the diagram in Appendix A to this Agreement, but excludes the portion of
the land described in Appendix B to this Agreement in respect of the New Build
Site.
(u) Fire Protection and Emergency Response MOU means the Memorandum of
Understanding between Caalington and OPG effective January 1, 2007 in respect
of the Existing Facilities.
(v) Governmental Authority means any federal, provincial, territorial, regional,
municipal or local governmental authority, quasi-governmental authority, court,
government or self-regulatory organization, commission, boazd, tribunal,
organization, or any regulatory, administrative or other agency, or any political or
other subdivision, department, or branch of any of the foregoing, having legal
jurisdiction in any way over OPG or Project Co., any aspect of the performance of
this Project Agreement or the construction of New Build, in each case to the
extent it has or performs legislative, judicial, regulatory, administrative or other
functions within its jurisdiction, and including the Independent Electricity System
Operator for Ontario and, for clarity, the CNSC.
(w) MPAC has the definition set out in Section 7 of this Agreement.
(x) New Build is a part of New Nuclear at Darlington and means the site preparation,
construction, operation, refurbishment, decommissioning and abandonment of up
to two nuclear generating units with total electrical output of up to 3500 MW of
electrical generating capacity and all administrative, ancillary and other buildings,
structures, infrastructure and systems necessary to operate, maintain and repair the
units in accordance with Applicable Laws, applicable codes and standards and
good utility practices, including:
(1) the nuclear island, balance of the plant and all other facilities, the
buildings for or associated with the nucleaz reactors, including the
turbine hall and used fuel bays;
(2) the water treatment plants, pump/screen facilities and fore bays
associated with New Build;
(3) the low and intermediate level radioactive waste storage facilities,
used fuel dry storage facilities, and internal maintenance areas;
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(4) the irradiated fuel bay, new nuclear fuel storage areas, converted
fuel storage facilities, hazazdous substance facilities, compressed
gas storage facilities, radiation support and decontamination
facilities, the heavy water management facilities (if applicable), the
training centre and training simulator, and security systems,
fencing and signage facilities;
(~) the condenser cooling structures (i.e. lake water intake/discharge
structures and/or cooling towers);
(6) the support facilities (including administrative buildings,
cafeterias, change room facilities, records facilities, parking
facilities, maintenance facilities and shops, laboratories,
wazehouses, contaminated and uncontaminated laundry, lay down
areas, inspection services and radiography facilifies, dentistry
laboratories, first aid and medical facilities, health physic
laboratory and facilities, emergency response centres and
monitoring equipment and systems);
(7) the shoreline and underwater structures, including infill of an area
adjacent to New Build, a docking facility, underwater tunnels and
pipes into Lake Ontario;
(8) the buildings and equipment necessary to extend the switchyazd at
the Dazlington Nucleaz Generation Site;
(9) the ancillary infrastructure facilities (including power systems,
sanitazy sewers, chemical waste ponds, potable water systems or
connections, storm water systems, subsurface drainage
management systems, roads and driveways into the New Build
Site, a fence between the New Build Site and the Existing
Facilities); and
(10) all other ancillazy facilities (including chemical and oil storage
facilities, vehicle fuel storage facilities, emergency backup diesel
generators).
(y) New Build Cannot Proceed means, as determined by OPG acting reasonably,
that New Build cannot be advanced, constructed, or there is no reasonable
prospect thereof, because of events outside of the reasonable or actual control of
OPG and Notice of same is provided by OPG to Clazington or a bona fde public
announcement is made of same by either OPG or the Government of Ontazio.
(z) New Build Milestones means the CNSC's issuance of the CNSC Licence to
Prepare Site, the CNSC Construction Licence and the CNSC Operating Licence.
(aa) New Build Site means the land as described in Appendix B to this Agreement on
which New Build is to be located and which, for greater certainty, does not
include the Existing Site.
(bb) New EOC is as defined in Section 10 of this Agreement.
(cc) Nuclear Security Regulations means the Aruclear Security Regulations
promulgated under the Nuclear Safety and Control Act (Canada).
(dd) Nofice means any notice, required or pemutted to be given under this Agreement,
and Notify has a similar meaning.
(ee) Parties means Clazington and OPG and Party means either Clarington or OPG,
as the context requires.
(ff) Permits, Licences and Approvals means all permissions, consents, approvals,
certificates, permits, licences, statutory agreements and authorizations required by
Applicable Laws, and all consents and agreements from any third parties
(including any development permits, building permits, zoning approvals, and any
other planning or development permit which may be required by Applicable
Laws) needed, in each case to construct or operate New Build.
(gg) Project Agreement means the agreement to be made between OPG and Project
Co. pursuant to which Project Co. is to provide the design, engineering, licensing
support, constnzction, commissioning and turnover of New Build to OPG in
accordance with the terms of that agreement.
(hh) Project Co. means the entity which is to be the counter party to OPG under the
Project Agreement.
(ii) Protected Area means the portion of New Build that is surrounded by a security
barrier that meets the requirements of Section 9 of the Nuclear Security
Regulations and in which buildings and/or structures will be located that perform
the same or substantially similar function or role as those included in the
Protected Area Existing Site within the boundary delineated by the red line on the
diagram attached as Appendix C to this Agreement.
(jj) Protected Area Existing Site means the area surrounded by a security barrier
that meets the requirements of Section 9 of the Nuclear Security Regulations
relating to the Existing Site and the boundary of which is delineated by the red
line on the diagram attached as Appendix C to this Agreement and shall include
the low and intermediate level radioactive waste storage facilities and used fuel
dry storage facilities.
1.2 Headings and Table of Contents
The division of this Agreement into sections, the insertion of headings and the provision
of a table of contents are for convenience of reference only and are not to affect the
construction or interpretation of this Agreement.
1.3 Expanded Definitions
Unless otherwise specified in this Agreement, words importing the singular include the
plural and vice versa and words importing gender include all genders. The term
"including" means "including without limitation", and the terms "include", "includes"
and "included" have similar meanings. Any reference in this Agreement to any other
agreement, is deemed to include a reference to that other agreement, as amended or
restated from time to time.
1.4 Time of Day
Unless otherwise specified in this Agreement, references to time of day or date mean the
local time or date in Clarington, Ontario.
1.5 Business Days
If under this Agreement any payment or calculation is to be made on or as of a day which
is not a Business Day, then that payment or calculation is to be made on or as of the next
day that is a Business Day.
1.6 Governing Law
This Agreement will be construed and interpreted in accordance with the laws of Ontario
and the laws of Canada applicable in Ontario. Each of the Parties irrevocably submits to
the non-exclusive jurisdiction of the courts of Ontario.
1.7 Severability
If any term of this Agreement is or becomes illegal, invalid or unenforceable, the
illegality, invalidity or unenforceability ofthat term will not affect the legality, validity or
enforceability of the remaining terms of this Agreement and the Parties will, if necessary,
Amend this Agreement to accomplish the intent of the Parties as originally set out in this
Agreement to the maximum extent allowed by Applicable Laws.
1.8 Survival
Except as otherwise provided in this Agreement, termination or expiration of this
Agreement shall be without prejudice to, and shall not affect the provisions of Sections
3.3 and 10 of this Agreement respecting the New EOC and the obligations of OPG set out
therein all of which shall survive the termination or expiration of this Agreement,
including termination on the expiry date pursuant to Section 2?.
1.9 Statutory and Technical References
Each reference to a statute in this Agreement is deemed to be a reference to that statute,
and to the regulations made under that statute, all as amended or re-enacted from time to
time.
1.10 Entire Agreement
This Agreement constitutes the entire agreement between the Parties regarding the
subjectmatter and, except for any Amendment, supersedes all other agreements,
negotiations, discussions, undertakings, representations, warranties and understandings,
whether written or verbal.
1.11 Currency
Amounts to be paid under this Agreement are to be paid in Canadian Dollars or, for
greater certainty, the lawful currency of Canada.
SECTION 2 -TERM AND TERMINATION
2.1 Term
The effective date of this Agreement shall be the last of the following dates:
(i) the date upon which OPG executes this Agreement; and
(ii) the date upon which Clazington executes this Agreement.
Each Party shall notify the other Party when that Party has executed this Agreement.
2.2 Termination
Notwithstanding anything to the contrary herein, this Agreement will terminate
immediately with no further obligation on either Party, except as otherwise expressly
provided in this Agreement, including as otherwise provided at Section 1.8 herein, if the
Project Agreement is terminated, or if New Build Cannot Proceed. On termination
pursuant to this Section 2.2, neither Party will be liable to the other for any costs or
damages.
SECTION 3 -PAYMENT
3.1 Total Compensation
Total compensation under this Agreement as set out in Sections 3.2 and 3.3 below shall
be $10 million.
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3.2 Compensation for Impacts
OPG shall pay the following amounts as full and fmal compensation to Clarington for
impacts upon the Municipality of Clarington as a result of New Build, including impacts
as disclosed in the Environmental Impact Statement, impacts specifically described in
this Agreement, and for all other matters provided in this Agreement, save and except for
the provisions of Section 3.3 and Section 4 of this Agreement, in accordance with the
following terms and conditions:
(a) Total compensation for impacts shall be $9.25 million;
(b) Clarington hereby agrees the compensation set out in Section 3.2(a) is sufficient
compensation to be made by OPG;
(c) Of the $9.25 million referenced in Section 3.2(a) above, $3 million shall be paid
forthwith or as soon as otherwise practicable following issuance of the CNSC
Licence to Prepare Site;
(d) The remaining sum of $6.25 million shall be paid forthwith or as soon as
otherwise practicable following issuance of the CNSC Construction Licence;
(e) In the event that OPG determines, acting reasonably, that Clarington is not
performing its obligations under this Agreement as referenced herein, either Party
may submit the issue to Arbitration pursuant to Section 13 of this Agreement;
(f) Payment of the sums referenced in this Section 3.2 shall not be made if New
Build Cannot Proceed is effected In the event that New Build Cannot Proceed is
effected, OPG shall be forever relieved from making further payments to
Clarington for compensation under this Section 3.2 of the Agreement.
3.3 Contribution to New EOC
OPG shall pay the sum of $'750,000 as a full and final contribution towards Clarington's
development of the New EOC, as set out in further detail in Section 10 below. In
furtherance of receipt of this payment, Clarington shall give Notice to OPG of its award
of a successful bid for the construction of the New EOC and payment of the sum set out
herein shall be made forthwith or as soon as otherwise practicable following OPG's
receipt of the said Notice.
For greater certainty, payment herein is not conditional upon New Build Cannot Proceed
not being effected or the Project Agreement not being terminated. Notwithstanding the
termination of this Agreement, this Section will survive and be binding on the Parties
3.4 Waterfront Trail and Darlington Soccer Field Considerations
(a) For greater certainty, the Parties agree that the compensation paid to Clarington
pursuant to Section 3.2 of this Agreement includes full and final compensation for
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any impact upon what is commonly known as the "Waterfront Trail" or the
"Trail" (hereinafter the "Trail") in the Municipality of Clazington, including any
and all compensation or other amounts that may be owing or owed to Clazington
now or in the future by OPG pursuant to Section 2(a) of a certain licence granted
to Clazington by Ontario Hydro for use of certain lands as the Trail commencing
June 1, 1995 (the "Trail Licence") and including specifically compensation for
any impacts whatsoever upon the benefits to Clazington under the Trail Licence.
(b) For greater certainty, the Parties agree that the compensation paid to Clazington
pursuant to Section 3.2 of this Agreement includes full and final compensation,
including any and all compensation or other amounts that may be owing to
Clazington now or in the future by OPG pursuant to any licensing agreements,
letter agreements, other agreements or otherwise for any impacts upon what are
generally and locally identified as the "upper hydro soccer fields" and gazebo as
well as the immediately adjacent lands thereto (e.g. whether or not the soccer
fields are removed and even if they are not otherwise affected) located at the
Existing Site.
3.5 Compensation for Traffic and Road Impacts
For greater certainty, the Parties agree that the compensation paid to Clazington pursuant
to Section 3.2 of this Agreement includes full and final compensation by OPG for
currently identified impacts in the Municipality of Clazington related to roads and traffic
in the Municipality of Clazington regardless as to how New Build proceeds. The Parties
acknowledge that depending on how New Build proceeds there may be additional and
varying road and traffic impacts upon the Municipality of Clazington and the Parties
agree, and as specifically provided in Section 4 below, that nothing in this Agreement
affects any rights that Clazington may have to seek compensation from other persons,
including Project Co. in respect of any of the same at such appropriate times.
3.6 Compensation for "Socioeconomic" Impacts
For greater certainty, the Parties agree that the compensation paid to Clazington pursuant
to Section 3.2 of this Agreement includes full and final compensation for any
socioeconomic impacts or what may also be generally described as community disruption
or disturbance in the Municipality of Clazington.
SECTION 4-OTHER POSSIBLE COMPENSATION
4.1 Potential Compensation for other Potential Impacts
OPG and Clazington acknowledge that the total compensation payable by OPG to
Clazington under this Agreement does not include compensation to mitigate certain other
potential impacts arising out of the New Build and relating to:
(a) necessary road improvements and subsequent rehabilitation of Holt Road between
South Service Road and Highway 2, or any other municipal road, if they are used as
a haul route for excavated soil for New Build:
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(b) necessary improvements to South Service Road between Holt and Maple Grove
Roads; or
(c) fire/emergency protection services during the site preparation and construction
phase of New Build.
Nothing in this Section 4.1 affects any rights that Clarington may have to seek
compensation from Project Co., OPG or any other person in respect of any of the
aforementioned potenfial impacts arising out of New Build, except to the extent that
Clarington has received compensation from any such persons in relation to any of these
potential impacts.
At OPG's request, Clarington shall promptly Notify OPG of any compensation that
Clarington has received or will receive from Project Co. or any other person in relation to
any of the aforementioned potential impacts described in this Section 4.1.
4.2 AtmospherieCooling Towers
OPG hereby acknowledges that Clarington does not accept the compensation to be paid
under this Agreement as compensation for all mitigation of impacts in the event that New
Build includes atmospheric cooling towers. OPG further acknowledges and accepts that
Clarington may not support the said atmospheric cooling towers.
SECTION 5 -APPROVALS
5.1 Municipal Approvals
Clarington agrees to give due consideration to providing OPG and/or Project Co. with all
Permits, Licences and Approvals within its jurisdiction to grant in order to permit and
expedite New Build, and will expeditiously process applications in this regard provided
that:
(i) OPG or Project Co. will furnish any such documentation normally required
by Clarington to support the approval being sought; and
(ii) OPG or Project Co. will pay all normal costs associated with any such
applications which are customarily required by Clarington.
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5.2 Federal and Provincial Approvals
Clazington shall, in good faith, exercise its best efforts to help achieve the New Build
Milestones. Clarington shall provide its cooperation in support of the EA Approval and
any other environmental approvals and licensing applications sought, including those
specifically relating to achieving the New Build Milestones, as well as any other federal
or provincial approvals or licences required for New Build.
SECTION 6- BUILDING PERMITS
6.1 Within the Protected Area and Existing Operations
Clarington agrees that it shall not require or take any steps to require any of OPG, Project
Co., their assigns or agents in respect of either New Build or Existing Operations to apply
for or pay for building permits or development charges under the BCA or the DCA or
require OPG, Project Co., their assigns or agents as aforesaid to otherwise comply with
the Ontario Building Code under the BCA, for buildings or structures within the
Protected Area and the Protected Area Existing Site with respect to New Build and
Existing Operations, respectively.
6.2 Outside the Protected Area
The Parties agree that nothing in this Agreement affects any rights that Clarington and
OPG may have under Applicable Laws with respect to whether Clarington may require,
and OPG acknowledges that it is Clarington's intention to so require, that building
permits be applied for and paid for pursuant to the BCA, or with respect to whether
development charges need be paid for under the DCA, or with respect to whether there
need be compliance with the Ontario Building Code outside of the Protected Area in
respect of New Build on the New Build Site.
SECTION 7 -PROPERTY TAXES
Nothing in this Agreement shall be construed to affect the rights of the Municipal
Property Assessment Corporation ("MPAC") pursuant to its right of access pursuant to
Section 10(1) of the Assessment Act, R.S.O. 1990, c. A31.
OPG and Clarington agree in principle that semi-annual site inspections will be
undertaken by MPAC for the New Build Site, including grounds and structures, during
the site preparation and construction phase. Should the pace of construction require an
increase in the frequency of such site inspections, a corresponding increase will be
collectively considered by MPAC, Clarington and OPG. All site inspections of the New
Build Site will be co-ordinated by OPG's Property Tax Department and will include
representatives from MPAC, Clarington, OPG and Project Co.
For purposes of Clazington being an informed entity, OPG will provide to Clarington, on
a best efforts basis, information relating to the plans and the progress of construction of
New Build.
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The existence and contents of this Agreement cannot be referred to or used as evidence or
in azgument for the purpose of any current or future disposition of an appeal to the
Assessment Review Boazd pursuant to Section 40 of the Assessment Act, R.S.O. 1990, c.
A.31.
SECTION 8-COMPLETED PERFORMANCE OF THE CLARINGTON -
HYDRO AGREEMENT
The Parties hereby acknowledge that simultaneously with the execution of this
Agreement, they shall each execute an agreement to be made as of the same date of this
Agreement (the form of which is attached to this Agreement as Schedule 1).
SECTION 9- FIRE PROTECTION AND EMERGENCY PREPAREDNESS
(a) The Parties acknowledge the existence and continuance of the Fire Protection and
Emergency Response MOU The Parties acknowledge that nothing in this
Agreement shall affect the rights and obligations of Clazington under the Fire
Protection and Prevention Act, 1997, S.O. 1997, c.4 (the "FPPA, 1997") with
respect to New Build. For greater certainty, nothing in this Agreement shall
affect Clazington's responsibilities under Section 2(1) of the FPPA, 1997 or its
rights to negotiate an agreement with Project Co. pursuant to Section 2(6) of the
FPPA, 1997.
(b) The Parties further acknowledge and agree that nothing in this Agreement affects
the rights or obligations of either Party or of Project Co. in relation to the
Emergency Management and Civil Protection Act, R.S.O. 1990, c. E9 (the
"EMCPA"), or the ability of the said persons to negotiate on such terms and
conditions as they may agree, an agreement for an emergency management
program under the EMPCA.
(c) Clarington shall consider incorporating appropriate policies in its official plan to
appropriately respond to the population and emergency planning considerations as
they relate to the implementation of emergency plans in the CNSC's "Regulatory
Document RD-346 Site Evaluation for New Nuclear Power Plants, November
2008".
(d) OPG represents that under the Project Agreement, Project Co. is responsible for
developing a plan for fire/emergency protection during the site preparation and
construction phases of New Build. This plan is subject to review by OPG. In
reviewing the plan, OPG will give due consideration to effecting Clarington's
interests therein.
SECTION 10-MUNICIPAL EMERGENCY OPERATIONS CENTRE
The Parties acknowledge that Clarington proposes to build a new municipal emergency
operations centre outside of a ten kilometre radius of the New Build nuclear reactor
buildings as part of the new fire station planned for the Newcastle area of the
Municipality of Clarington (the "New EOC").
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The Parties acknowledge that the New EOC will be built in respect of the Existing
Operations regazdless of whether New Build Cannot Proceed is effected. OPG
acknowledges that it is contributing the sums referenced herein on the same basis.
The compensation under Section 3.2 of this Agreement includes the sum of $750,000 as
full and final direct contribution by OPG to the costs of the New EOC. Notwithstanding
the termination of this Agreement, this Secfion will survive and be binding on the Parties
SECTION 11- ON-SITE WASTE FACILITIES
On-site low and intermediate radioactive waste facilities for New Build shall be limited
to facilities necessazy for its on-going operation and will include handling, packaging and
storage of wastes for up to one (1) year within the Protected Area or the Protected Area
Existing Site, prior to shipment of same off-site to a licensed management facility outside
of the Municipality of Clarington.
SECTION 12 -FULL AND FINAL COMPENSATION BY OPG
Clarington agrees, and will take the position in any proceeding taking place under
Applicable Laws in respect of New Build that, subject to the other provisions of this
Agreement including without limitation Section 4.2 above, compensation made to it by
OPG pursuant to this Agreement constitutes full and final compensation to be made by
OPG in respect of mitigation of any and all impacts upon Clarington as a result of New
Build.
Clarington hereby confirms and acknowledges that it has received independent legal
advice with respect to its making this Agreement and further, that it is satisfied with the
information provided to it by OPG relating to Clarington making this Agreement and
Clarington has no outstanding requests for information.
SECTION 13-DISPUTE RESOLUTION
13.1 Disputes Referred to Arbitration
The Parties will work co-operatively to resolve any dispute, disagreement, controversy,
question or claim (including a claim for indemnification) (collectively, a "Dispute").
The Parties will refer any outstanding Dispute or other controversy between the Parties
arising in respect of this Agreement to arbitration under the Arbitration Act, 1991
(Ontazio).
13.2 Notice of Arbitration and Appointment of Arbitrator
If the Parties fail to appoint an Arbitrator within 15 days of arbitration being required
under this Agreement, a Party may apply to a judge of the Superior Court of Justice of
Ontario, on Notice to the other Parties, for the appointment of the Arbitrator.
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13.3 Powers of Arbitrator
The Arbitrator may determine all questions of law, fact and jurisdiction regarding the
arbitration (including questions as to whether the matter at issue is arbitrable) and all
matters of procedure relating to the arbitration. The Arbitrator may grant legal and
equitable relief (including injunctive relief), award costs (including legal fees and the
costs of the arbitration) and award interest. Without limiting the generality of the
foregoing or the Arbitrator's jurisdiction at law, the Arbitrator may:
(a) determine any question of good faith, dishonesty or fraud arising in the matter at
issue;
(b) order either Party to furnish further details of that Party's case, in fact or in law;
(c) proceed in the arbitration notwithstanding the failure or refusal of either Party to
comply with this section or with the Arbitrator's orders or directions, or to attend
any meeting or hearing, but only after giving that Party written Notice that the
Arbitrator intends to do so;
(d) receive and take into account written or oral evidence tendered by the Parties that
the Arbitrator determines is relevant, whether or not strictly admissible in law;
(e) make interlocutory determinations or interim orders or awards;
(f) hold meetings and hearings and make a decision (including a final decision) in the
Municipality of Clarington (or elsewhere with the concurrence of the Parties); and
(g) order the Party(ies) to provide to the Arbitrator, and to the opposing Party(ies) for
inspection, and to supply copies of, any documents or classes of documents in its
possession or control that the Arbitrator determines to be relevant.
13.4 Arbitration Procedure
The arbitration will take place in Toronto, Ontario at such place and time as the
Arbitrator may fix. The arbitration will be conducted in English. Within 10 Business
Days of the appointment of the Arbitrator, the Parties will either agree on the procedure
to be followed for the arbitration or the Arbitrator will determine the appropriate
procedure, in accordance with the principles of natural justice, to be followed. The
Parties will keep confidential and not disclose to any other person, the arbitration and all
matters arising directly or indirectly from the matter(s) at issue (including all documents
exchanged, the evidence and the award), except as set out in this Section 13.4. A Party
may disclose any such information to the extent required:
(a) to obtain assistance from persons to conduct the matters under arbitration;
(b) by law or securities exchange rules; or
17
(c) by a disclosure requirement with a shazeholder, lender or potential lender
(including any advisor to any such recipient person), so long as such person is
informed of the confidential nature of such information and such person agrees to
be bound, subject to law, by such confidentiality obligation.
13.5 Arbitrator's Decision
No later than 20 Business Days after hearing the representations and evidence of the
Parties, the Arbitrator will make the Arbitrator's determination in writing, with reasons,
and deliver one copy to each of the Parties. The Arbitrator may only interpret and apply
the terms of this Agreement and, except as expressly permitted in this section, may not
change this Agreement in any manner. The decision of the Arbitrator will be final and
binding upon the Parties regarding all matters relating to the azbitration, the conduct of
the Parties during the proceedings and the final determination of the matter at issue.
13.6 No Appeal and Enforcement
Subject to Section 44 of the Arbitration Act, 1991 (Ontario), the Parties may not appeal
from the determination of the Arbitrator to any court. The Parties may enter any
judgment upon any award rendered by the Arbitrator in any court having jurisdiction.
13.7 Costs of Arbitration
Subject to the terms of this Agreement, the Parties will bear the costs of any arbitration
under this section in the manner specified by the Arbitrator. Subject to the terms of this
Agreement, if the Arbitrator does not specify the costs, each Party will bear its own costs
and will share the costs of the Arbitrator equally.
SECTION 14- GENERAL
14.1 Assignment and Benefit
This Agreement enures to the benefit of and binds the Parties and their respective
successors and permitted assigns. Neither Party may assign this Agreement without the
prior written consent of the other Party.
14.2 Amendments
Except as expressly provided in this Agreement, no amendment, restatement or
termination of this Agreement in whole or in part is binding unless it is in writing and
signed by each Party.
18
14.3 Notice
Except as otherwise provided in this Agreement, every Notice required or permitted
under this Agreement must be in writing and may be delivered in person, by courier or by
fax to the applicable Party, as follows:
If to OPG,
Ontario Power Generation Inc.
700 University Avenue
Toronto, ON MSG 1X6
Attention: Senior Vice-President, Law and
General Counsel
Fax: (416)592-1466
to
The Corporation of the Municipality of
Clarington
40 Temperance Street
Bowmanville, ON L1C 3A6
Attention: Chief Administrative Officer
Fax: (905)623-0720
or to any other address, fax number or individual that a Party designates by Notice. Any
Notice under this Agreement, if delivered personally or by courier will be deemed to
have been given when actually received, if delivered by fax before 3:00 p.m. on a
Business Day will be deemed to have been delivered on that Business Day and if
delivered by fax afrer 3:00 p.m. on a Business Day or on a day which is not a Business
Day will be deemed to be delivered on the next Business Day.
14.4 Waivers
No waiver of any term of this Agreement is binding unless it is in writing and signed by
all the Parties entitled to grant the waiver. No failure to exercise, and no delay in
exercising, any right or remedy, under this Agreement will be deemed a waiver of that
right or remedy. No waiver of any breach of any term of this Agreement will be deemed
to be a waiver of any subsequent breach of that term.
14.5 Execution of Contract
This Agreement may be executed in counterparts, each of which when executed shall be
deemed to be an original, but all of which when taken together shall constitute one and
the same agreement. Signatures by facsimile shall be as effective as original signatures
to this Agreement.
19
IN WITNESS WHEREOF, the Parties hereto have duly executed this Agreement as of
the date hereof.
ONTARIO POWER GENERATION INC.
Name: Tom Mitchell
Title: President and Chief Executive Officer
I have authority to bind the Corporation.
THE CORPORATION OF THE
MiJNICIPALITY OF CLARINGTON
im ernayol~` - '`
/ ~ .~
Pa i L~ arse, nicipal Clerk
We ave auth rity to bind the Corporation.
EXECUTION COPY
SCHEDULE 1
AGREEMENT TO SUSPEND OPERATION OF THE
CLARINGTON-HYDRO AGREEMENT
This Agreement is effective as of August 31, 2009 between
ONTARIO POWER GENERATION INC., a
corporation existing under the laws of Ontario ("OPG"),
and
THE CORPORATION OF THE ;MUNICIPALITY OF
CLARINGTON, a corporation existing under the laws of
Ontario (the "Clarington")
RECITALS
A. Whereas Clarington and Ontario Hydro aze parties to the Clarington Hydro
Agreement made as of 27~' day of October, 1993 (the "C-H 1993 Agreement");
B. Whereas Clarington, Ontario Hydro and The Corporation of the Regional
Municipality of Durham executed the Tri-Partite Agreement on or about the time
of the execution of the C-H 1993 Agreement (the "Tri-Partite Agreement"), the
form of which was attached as Schedule 1 to the C-H 1993 Agreement;
C. Whereas OPG is the successor in right, title and interest to Ontario Hydro with
respect to the C-H 1993 Agreement;
D. Whereas Clarington and OPG shall execute, simultaneous with the execution of
this Agreement, a host municipality agreement to which the form of this
Agreement is Schedule 1 (the "Host Municipality Agreement") which sets out,
inter alia, the terms and conditions of payment of compensation by OPG to
Clarington in connection with OPG's plans to construct and operate New Build
(as defined in the Host Municipality Agreement) in the Municipality of
Clarington; and
E. Whereas the Host Municipality Agreement acknowledges that OPG and
Clazington shall make the Agreement herein.
THEREFORE IN CONSIDERATION OF the covenants hereinafter contained and for
value received, the parties agree as follows:
1. Clarington and OPG hereby agree that operation of the provisions of Section 1(ii)
of the C-H 1993 Agreement be and is hereby permanently suspended in relation
to New Build and the Protected Area Existing Site (as defined in the Host
Municipality Agreement).
2. OPG and Clarington hereby agree that Clarington shall not require or take any
steps to require any of OPG, Project Co. (as defined in the Host Municipality
Agreement) their assigns or agents, in respect of both New Build and the
Protected Area Existing Site, to apply for or pay for building permits or
development charges under the Building Code Act, 1992 (Ontario) (the "BCA")
or the Development Charges Act, 1997 (Ontario) (the "DCA") or require OPG,
Project Co., their assigns or agents as aforesaid to otherwise comply with the
Ontario Building Code under the BCA, for buildings or structures within the
Protected Area or Protected Area Existing Site (both as defined in the Host
Municipality Agreement).
3. OPG and Clarington hereby agree that with respect to the area outside the
Protected Area relating to New Build on the New Build Site, neither this
Agreement nor the Host Municipality Agreement affects any rights that
Clarington and OPG may have under Applicable Laws (as defined in the Host
Municipality Agreement) with respect to whether Claringron may require, and
OPG acknowledges that it is Clarington's intenfion to so require, that building
permits be applied for and paid for pursuant to the BCA or the DCA, or that there
be compliance with the Ontario Building Code.
4. None of the provisions of Section 1 of this Agreement affects in any way Section
1(ii) of the C-H 1993 Agreement respecting matters other than New Build and the
Protected Area Existing Site.
This Agreement shall terminate and have no force or effect simultaneously with
any ternunation of the Host Municipality Agreement effective as of August 31,
2009 between OPG and Clarington.
6. This Agreement may be executed in counterparts, each of which when executed
shall be deemed to be an original, but all of which when taken together shall
constitute one and the same agreement. Signatures by facsimile shall be as
effective as original signatures to this Agreement
3
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the date hereof.
ONTARIO POWER GENERATION INC. THE CORPORATIO QF :THE-' - _ -
MUNICIPALITY OF~ARIl~&TON
~yil~r/~~G~'
Name: Tom Mitchell
Title: President and Chief Executive Officer
I have authority to bind the Corporation.
Patt(~ 1•ie, icipal Clerk
We ave authonty to bind the Corporation.
APPENDIX A
EXISTING SITE
srri:
Indicative Project Site Area
OPG Confidential
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