HomeMy WebLinkAboutSOLIC-#3-00IINFINIS~ SUSINBSS
THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON
REPORT
Meeting: Council
Date: Monday, June 19, 2000
Report #:
Solic-#3-00
Subject:
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AMENDMENT AND IMPLEMENTATION OF THE PRINCIPLES OF
UNDERSTANDING BETWEEN BLUE CIItCLE CANADA INC. AND THE
MUNICIPALITY OF CLARINGTON DATED NOVEMBER 3,1997
1.0 Recommendations:
1. THAT this report be received.
2. THAT Council rescind its approval of Recommendation #2 contained in Report #PD 005-00
to the General Purpose and Administration Committee meeting on January 17, 2000 whose
report was approved by Council on January 24, 2000.
3. THAT Council direct Blue Circle Canada Inc. to make the transfers of lands and easements
provided for in the Principles of Understanding between Blue Circle Canada Inc. and the
Municipality, as amended be made to the Municipality and that, subject to compliance with
section 193 of the Municipal Act, these lands and easements be transferred to CLOCA.
4. THAT Council approve and pass by-laws to authorize the Mayor and Clerk to execute the
following on behalf of the Municipality:
(a) an Easement Agreement between Hydro One Networks Inc., Blue Circle Canada Inc.
and the Municipality substantially in accordance with the draft Agreement contained
in Attachment No. 2;
(b) a Maintenance and Monitoring Agreement between the Central Lake Ontario
Conservation Authority, Blue Circle Canada Inc. and the Municipality substantially
in accordance with the draft Agreement contained in Attachment No. 3 as amended
in accordance with the letter from Dennis Hefferon to Weir and Foulds dated June
12, 2000 and contained in Attachment No. 4; and
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(c) a Fourth Amending Agreement between Blue Circle Canada Inc. and the
Municipality substantially in accordance with the draft Agreement contained in
Attachment No. 1.
ATTACHMENT
1. Attachment No. 1 -Draft Fourth Amending Agreement
2. Attachment No. 2 -Draft Easement Agreement
3. Attachment No. 3 -Draft Maintenance and Monitoring Agreement
4. Attachment No. 4 -Letters between the solicitors for the Municipality, Blue Circle
Canada Inc. and CLOCA dated June 12, 2000
5. Attachment No. 5 -Map Showing Proposed Closure Area D
2.0 BACKGROUND
2.1 Principles of Understanding ("Principles") dated November 3, 1997 were executed by Blue
Circle Canada Inc. ("Blue Circle's and the Municipality respecting the Westside Marsh, the
closure and transfer of portions of Waverly Road to Blue Circle, the establishment of a
Temporary Public Highway to the west of Waverly Road, the acquisition by the Municipality
of lands and easements required to construct a bridge over the Westside Creek to connect
with Cedarcrest Beach Road and to construct and ultimately dedicate Cove Road (then a
private road) with a connection to the new bridge as a public highway, cost sharing
arrangements between the Municipality and Blue Circle, and a number of other arrangements
including the transfer of the reconfigured Westside Marsh and other lands and easements
either to the Central Lake Ontario Conservation Authority ("CLOCA") or as otherwise
directed by the Municipality. A copy of the Principles is available for your review in the
Clerk's office.
2.2 The background of the Principles, transfers of certain lands and easements, and the
Management Agreement between CLOCA and the Municipality were discussed in Report
#PD 005-00 to the General Purpose and Administration Committee whose recommendation
to approve the Report was approved by Council at the meeting on January 24, 2000.
2.3 Recommendation No. 2 of Report #PD 005-00 provided:
"THAT Council direct the transfers of certain lands and easements referred to in the
Principles of Understanding between Blue Circle Canada Inc. and the Municipality
of Clarington, as identified in Section 2 of this report be made from Blue Circle to
Central Lake Ontazio Conservation Authority; and"
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2.4 For the reason noted below, this direction is no longer appropriate and should be rescinded
by Council. Council should direct Blue Circle to make the transfers to the Municipality.
2.5 During the last 9 months, extensive work and negotiations have been undertaken by me and
the solicitors for Blue Circle and CLOCA to prepaze necessary legal documentation to
implement the Principles. Also, draft Reference Plans of Survey have been prepazed to
describe, for legal purposes, the various lands and easements that aze to be transferred
pursuant to the Principles. Draft by-laws required by the Municipal Act in respect of the
closure and authority to convey portions of Waverly Road and the Temporary Public
Highway have been prepazed. Notices of a public meeting of Council on July 10, 2000 to
consider road closures, dedications and related by-laws aze being published as required by
the Municipal Act. Other draft by-laws aze also being prepazed to permit the transfer of
lands and easements received from Blue Circle to CLOCA as pemutted by the Principles and
the Municipal Act.
2.6 In the course of this work, a number of issues have been raised and ways of resolving them
have been settled in the draft documentation. Amendments to certain provisions in the
Principles aze necessary to deal with these matters. Also, it will be necessary for the
Municipality to execute an Easement Agreement between Blue Circle and Hydro One
Networks Inc. (Ontario Hydro) and the Municipality, and a Maintenance and a Monitoring
Agreement between Blue Circle, CLOCA and the Municipality in order to deal with certain
of these matters. The issues that have been raised aze discussed below.
3.0 TRANSFERS OF LANDS AND A MENTS
3.1 As noted above, the Principles now provide that the transfers of lands which include the
Reconfigured Westside Mazsh and easements to be made by Blue Circle on the "Closing
Date" of the Principles, aze to be made "to CLOCA or as otherwise directed by the
Municipality". The recommendation approved by Council on January 24, 2000 was to direct
Blue Circle to make these transfers to CLOCA rather than to the Municipality. The
management of the lands so transferred will be dealt with in the Management Agreement
(authorized by Council on November 3, 1997) between CLOCA and the Municipality.
3.2 Much of the land to be transferred by Blue Circle pursuant to the Principles has been
mortgaged or chazged to collaterally secure a loan advanced by a lender to the owner. The
loan is secured by a debenture for which Blue Circle is legally responsible. In order to
satisfy its obligations under the Principles, the mortgage or charge would have to be
dischazged in part as it affects the lands which aze to be transferred by Blue Circle so as to
free them from the encumbrance.
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June 19, 2000
3.3 In order to address an issue presented by section 50 of the Planning Act and raised by the
solicitors for Blue Circle and CLOCA, it is recommended that the transfers by Blue Circle
be made to the Municipality, and if the Municipality passes the necessary by-law and
otherwise complies with section 193 of the Municipal Act respecting the sale and transfer
of surplus lands as well as the Principles, the lands subsequently will be transferred to
CLOCA by the Municipality.
3.4 A report will be submitted to Council's meeting on July 10, 2000 respecting the latter
transfers as well as the proposed road closures and authority to transfer portions of Waverly
Road and other necessary by-laws. Governmental fees and taxes payable on registration of
the transfers to the Municipality and the costs of the appraisal required before the lands can
be transferred to CLOCA will be paid by Blue Circle. This is provided for in the draft
Fourth Amending Agreement (Attachment No. 1) to the Principles discussed below.
4.0 ONTARIO HYDRO .A NT A RE MENT
4.1 The conservation as a wetland of the portion of the Westside Marsh referred to in the
Principles as the "Reconfigured Westside Marsh" while at the same time making the
northerly portion of the Marsh available to Blue Circle for aggregate extraction purposes,
will require the diversion of the channel of the Westside Creek such that it will enter the
Reconfigured Westside Marsh neaz its north-east corner rather than neaz the north west
corner of the present Westside Mazch. The diversion channel will be located on lands with
the Ontazio Hydro Transmission Corridor.
4.2 The Principles provide for an agreement to be made by Ontario Hydro and Blue Circle to
provide the construction of the diversion works by Blue Circle on land in which Ontario
Hydro would grant perpetual easements to Blue Circle. Since Ontario Hydro believes that
the easement should be owned by a public body rather than a business corporation, the
Principles provided for the easement to be transferred by Blue Circle to CLOCA forthwith
after completion of construction of the diversion works. The Principles do not now provide
for the transfer of the easements to the Municipality or for the execution of an Easement
Agreement by the Municipality with Ontario Hydro.
4.3 The solicitors for Blue Circle, CLOCA and Ontario Hydro were not able to settle documents
that were acceptable to both CLOCA and Ontario Hydro. A major issue was the extent of
the loss or damage that might be suffered by Ontario Hydro if the diversion works failed or
their construction, repair or use resulted in damage to Ontario Hydro transmission lines or
to its customers. Ontario Hydro was not willing to limit CLOCA's liability in any way.
Also, CLOCA's comprehensive general liability policy has coverage limits which are faz less
than the insurance required by Ontario Hydro. Further, Ontario Hydro has continued to insist
Report Solic-#3-00
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June 19, 2000
that after construction of the diversion works, the easement must be transferred to a public
body and not retained indefinitely by Blue Circle after the completion of construction.
4.4 With the assistance of Mayor Hamre and the Chief Operating Officer of Ontazio Hydro, a
solution to this problem was identified and documented in the proposed Easement
Agreement to which is attached a Transfer of Easement to the Municipality (Attachment No.
2). The Easement Agreement would be executed by Blue Circle, the Municipality and
Ontario Hydro. (The Easement Agreement and the Transfer of Easement collectively aze
referred to in this Report as the "Easement Agreement".) The Easement Agreement will
provide for perpetual easements in the diversion azea to be transfenred by Blue Circle, with
the consent of Ontazio Hydro, to the Municipality following the completion of the
construction and installation of the diversion works.
4.5 Under the Agreement despite the transfer of the easements to the Municipality, Blue Circle
will continue to be responsible for repairing and maintaining the diversion works and for
indemnifying both Ontario Hydro and the Municipality against any loss or cost that the
Municipality may incur as provided in the Easement Agreement. CLOCA will monitor the
maintenance of the diversion works pursuant to the provisions of the Maintenance and
Monitoring Agreement referred to in section 5 of this Report.
4.6 Under the Easement Agreement Ontario Hydro will be able to look to both Blue Circle and
the Municipality for performance of the covenants of Blue Circle respecting the diversion
works. These covenants include a covenant by Blue Circle to indemnify Ontario Hydro
against any loss or cost that it may suffer in connection with loss of life, personal injury or
damage to property caused by or arising the occupancy or use by the Municipality of the
diversion area. Blue Circle will indemnify the Municipality in respect of any cost or loss that
the Municipality may incur under provisions to be added to the Fourth Amending Agreement
which aze discussed below in section 6.0 of this Report.
4.7 The Municipality's liability to Ontario Hydro for its own and CLOCA's acts or omissions
will be limited to liability in respect of risks insured against under the Municipality's
comprehensive general liability insurance policy with coverage limits of the greater of $25M
or the limits of the policy held by the Municipality from time to time. The Treasurer advises
me that the coverage limits of the Municipality's comprehensive general liability insurance
will be $30M as of July 1, 2000.
4.8 I recommend that Council approve the draft Easement Agreement contained in Attachment
No. 2 and authorize the execution of an agreement substantially in accordance with the draft
Agreement.
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5.0 MAINTENANCE AND MONITORIN A REEMENT
5.1 CLOCA will be responsible for monitoring Blue Circle in performing conditions of approval
by Fisheries and Oceans Canada, MNR, and CLOCA itself of the various works required to
be constructed and maintained by Blue Circle in order to implement the Principles. This
includes the construction and maintenance of the Westside Creek diversion works referred
to in section 4.0 of this Report, a dyke (berm} system required to separate the Reconfigured
Westside Marsh from the area of the present Mazsh from which aggregates may be extracted,
and the overflow channel, which will ensure that water levels in the Reconfigured Westside
Mazsh do not exceed an acceptable level. The present Principles provide for CLOCA's and
Blue Circle's rights and duties to be set out in a Maintenance and Monitoring Agreement
which was to be negotiated and executed by Blue Circle and CLOCA. The Principles at
present do not contemplate that the Municipality would be a party to this Agreement. An
amendment to the Principles to provide for the execution of this Agreement by the
Municipality is contained in the proposed Fourth Amending Agreement.
5.2 Because of the position of Ontario Hydro in respect of the Westside Creek diversion azea
discussed in section 4.0 of this Report and the proposed Easement Agreement to which it is
recommended the Municipality execute, it is also necessary for the Municipality to be a party
to the Maintenance and Monitoring Agreement since the Municipality ultimately will hold
fire easements in the Westside Creek diversion azea pursuant to the Easement Agreement
with Ontazio Hydro and Blue Circle.
5.3 The latest (June 15, 2000) working draft of the Maintenance and Monitoring Agreement
between Blue Circle, CLOCA and the Municipality is contained in Attachment No. 3.
5.4 By letter dated June 12, 2000 addressed to the solicitors for Blue Circle, I requested that an
amendment be made to pazagraph 6(a) of the working draft to clarify that the Municipality's
fmazicial responsibility under the Agreement was limited to fund repairs and maintenance
of the diversion works on the Ontario Hydro lands and not to fund the repair or maintenance
by CLOCA of works on other lands subject to the Agreement, such as the dykes referred to
above, if Blue Circle fails to perform its obligations . My letter is contained in Attachment
No. 4 as aze the responding letters to me also dated June 12, 2000 from the solicitors for Blue
Circle and CLOCA, respectively. Although Blue Circle's solicitor indicates that he will
make the requested amendment albeit reluctantly, CLOCA's solicitor has objected to it.
5.5 I have had further discussions with CLOCA's and Blue Circle's solicitors on this issue and
will report to you verbally on these discussions at the meeting on June 19, 2000.
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June 19,2000
5.6 I recommend that Council approve the draft Maintenance and Monitoring Agreement as
amended in accordance with my letter to Blue Circle's solicitor dated June 12, 2000
contained in Attachment No. 4 and, as amended authorize the execution of an Agreement
substantially in accordance with the draft Agreement as so amended.
6.0 FOURTH AMENDING A FEM NT TO TH P iNCIP E
6.1 Resolution of the issues addressed in the Easement Agreement referred to in section 4.0 and
the Maintenance and Monitoring Agreement referred to in section 5.0 of this Report along
with certain other issues trigger the need to amend certain provisions of the Principles.
These amendments aze set out in the draft Fourth Amending Agreement contained in
Attachment No. 1. This section of this Report will address only the substantive issues raised
by this Agreement that have not been discussed in the eazlier sections.
6.2 Proposed Closure Area D referred to in pazagraph 1(c) of the Fourth Amending Agreement
comprises the portion of Waverly Road between the projection of the north limit of Watson
Drive and the south limit of Closure Area A closed by Council on November 3, 1997 by the
passing of By-law No. 97-251. It is shown on the map contained in Attachment No. 5 and
will be before Council at the meeting on July 10, 2000. The Area abuts a portion of the
Reconfigured Westside Marsh to the east including a portion of the overflow channel
referred to above. A portion of the Area will accommodate a portion of the acoustic berm
at its north end which is to be constructed by Blue Circle and another portion will be needed
by Blue Circle as an access to construct and maintain portions of the overflow channel
located to the east and west of Waverly Road.
6.3 The Fourth Amending Agreement provides for the closure and transfer of proposed Closure
Area D to CLOCA subject to easements being transferred to Blue Circle respecting the
matters referred to in pazagraph 6.2. CLOCA intends to manage the land in this Area in a
manner complementary to its management of the Reconfigured Westside Mazsh.
6.4 The Licence Agreement referred to in pazagraph 1(e) of the Fourth Amending Agreement
between Blue Circle and the Municipality will permit Blue Circle to install a culvert under
a portion of Waverly Road which transfers the Ontario Hydro Transmission. corridor. The
diversion of Westside Creek will go under Waverly Road at the area identified in the Licence
Agreement.
6.5 Pazagraph 1(k) of the Fourth Amending Agreement adds to the Principles new pazagraphs
23A, 23B and 23C which deal with the Westside Creek diversion area and provide the
Municipality with certain additional rights. Section 23B provides for Blue Circle to
indemnify the Municipality against losses that it may suffer as a result of the construction
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June 19, 2000
and installation of the diversion works including loss resulting from certain acts or omissions
by Blue Circle or CLOCA as set out in pazagraph 23B(b). Blue Circle will have the right to
dispute third party claims against the Municipality under paragraph 23B(c). Blue Circle will
have the obligation to carry comprehensive general liability insurance naming the
Municipality as an insured with limits of $25M under pazagraph 23B(d). Pazagraph 23C
provides for azbitration of certain disputes between Blue Circle and the Municipality arising
under paragraph 23B.
6.6 Paragraph 1(1) amends important dates set out in Schedule J of the Principles.
Commencement of construction of the works by Blue Circle would be delayed until the
Spring, 2001 from the Winter, 1998 and the Completion Date would be established as
Winter, 2004 in place of Winter, 2001. These revised dates seem reasonable in the
circumstances as they now stand.
6.7 The Unwinding Date contained in the Principles as a result of the Third Amending
Agreement is June 30, 2000. All the solicitors for the parties aze concerned that since the
necessary Reference Plans of Survey have recently been approved, and the areas are now
being staked. The Plans may not be deposited on title before June 30, 2000. Accordingly,
paragraph 1(a)(1) of the Fourth Amending Agreement provides for a further extension of the
Unwinding Date by my agreement for the Municipality with the agreement of the solicitor
for Blue Circle to a date not later than July 31, 2000.
6.8 I recommend that Council approve the draft Fourth Amending Agreement and authorize the
execution of the Fourth Amending Agreement substantially in accordance with the draft
Agreement.
7.0 CONCLUSION
7.1 The negotiations necessary to implement and complete the Principles have been complex and
lengthy. The approvals recommended in this Report aze necessary in order to bring the
arrangements between Blue Circle and the Municipality to a successful conclusion and to
achieve the conservation of the Reconfigured Westside Mazsh.
submitted Received
Solicitor r I ,~ Chief Administrative Oflicer
ATTACHMENT N0. 1
THIS FOURTH AMENDING AGREEMENT TO THE PRINCIPLES OF
UNDERSTANDING made as of this 19th 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. Pazagraph 24 of the Principles of Understanding ("Principles") between the Pazties 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 pazagraph 1 and paragraph 23 or any of the events listed in
pazagraph 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.
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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 Apri125th, 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 hereinafrer 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);"
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(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
Circle. Further, the easement agreement will provide for the
consent by Ontario Hydro to the transfer to the Municipality
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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 asemi-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
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completion shall be approved by the
aforesaid Director, acting reasonably
before the construction is commenced;
(fj 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-pazagraph 10(b) is amended by adding afer 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
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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:
"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
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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.
23B. Indemni
(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
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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,
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
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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 aotual 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
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
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prior written approval of the Municipality, such approval not to be
unreasonably withheld or delayed;
(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 parry 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
parry 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 across-liability clause, such
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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 famish
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 fox 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:
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(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 byor 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;
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(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.
Pazagraphs 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.
3. This Fourth Amending Agreement to the Principles of Understanding may be executed by
the Parties in counterpart.
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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
DELIVERED
in the presence of
THE CORPORATION OF THE
MUNICIPALITY OF CLARINGTON
Clerk
BLUE CIRCLE CANADA INC.
Per:
Name: Title:
Per:
Name: Title:
DATE: 06/07/00 TIRE: 03:06 PH T0: Onnnis Hef Earon P E6B-0306 416-365-1876 PAGE: 009-020
EASEMENT AGF.EEMENT
('r7 INTEREST/ESTATE TRANSFERRED
ATTACI3MENT N0. 2
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
Lauds");
(b) those portions of the Transferee's ]ands 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 "Recoufigur•ed Westside Marslr"): 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
Budge") and more particularly described in Schedule II 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 [o 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, thc; 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 [he 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 Ship: 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 conshucted 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
w+ritten 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"). Forgreatercertainty,theterm"FullyLabouredRate"as used
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 tltereto (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 insuch 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 w+ay 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 Safeh~ 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, tivith a construction agreement entered into between the Transferor
and the Transferee dated the same date as this indenture (w+hich agreement is herein called
the ° Coustrvction 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
June 7, 2000
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orother 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 Transferm•") and/or
maintain, repair, rearrange or replace, add to, relocate anywhere on the Strip or the
Transferor's adjacent lands andior remove any of the Works of the Transferor and other of
the Transferor's works as defined in the Electricil): 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 agreemetlts 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 againstalldirect, indirectand/orconsequentialcosts, 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 theE~IViromnental Protection Act, R.S.O. 1990,
c. E.19) caused by the actions of the Transferee or by i[s 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
Emironmentaf Protection Act, R.S.O. 1990, c. E.19 and the Ontario Li'ater
Resources Act, R.S.O. 1990, c. 0.40 to [he 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 [he 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.
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 occurcence 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, [o 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 Transferorunderchis 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 [he 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 oven counselor
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
agree on any matter in the conduct of the dispute a+hich 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 he 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 [he 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 indenNre.
12. (a) Within six (6) months of the completion of [he 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 [o the Municipality and for the purpose of
consenting [o such assignment. The said assignment shall reserve unto Blue Circle
Canada Inc. and its successors the rights of access granted [o [he 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 asset 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 [he completion of the
Westside Creek Diversion Works and expiry of the said monitoring period.
(b) Save assetoutabove, the Transferee shallnottmnsfer,assignorsubletthisindenture
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 indenmre 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 Easement 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 Tmnsferee, 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 Tmnsferee. The right
Sune 7, 2000
401521.RED
JUN 7 '00 15:10 416-365-1876 PAGE.009
DATE: 06/07/00 TIME: 03:06 PM To: Dennis Heffsron P 668-0306
_'~_
416-365-1876 PAGE: 010-020
of termination provided for herein is subject to the qualification that if, prior to such
termination becoming effective, the Transferee has served the Transferor witlt 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 a[ its expense and keep in force, throughout [he term of this
indenture, insurance of [he type commonly called Comprehensive General Liability
Insurance which insurance shall be with insurers acceptable to the Transferor, acting
reasonab ly and shall include coverage for personal i nj ury (including death), p roperty 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 Municinalitv and CLOCA as
co-insureds and contain across-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 [he 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,exceptas otherwisestipulated herein,theirrespective
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 [he Arbitration Act (Ontario), as amended, from time to time or pursuant
to any legislation substituted therefor and subject to the following provisions:
(a) [here 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:
June 7, 2~0
401521.RED
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DATE: 06/07/00 TIME: 03:06 PM TD: Dennis Hefferon p E6B-0306
_b'-
<76-365-1876 PAGE: 011-020
(iii) if either party does not appoint an arbitrator within the time limited
under the preceding subparagraph ii ,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:
Fot Blue Circle:
400 Waverly Road South
Bowmanville, ON LIC 3K3
Attention:
Facsimile No
Plant Manager
(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 aad Geaeral 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
401521.RED
JUN 7 '00 15:11 416-365-1876 PAGE.011
A16-365-3876
DATE: O6/07/OD TIME: 03:06 PM T0: Dennis Hsf Esron P 868-0306
-9-
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 shall, 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 im+olving 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
day" shall include every day except a Saturday, Sunday or statutory holiday.
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 he, 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 PlannengAct, 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
June 7, 7A00
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JUN 7 '00 15:12
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DATE: 06/07/00 TIME: 03:06 PM T0: Dsnnis Heffsron ~ 86E-0306
_10_
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.
rube 7, 2000
401521.RED
416-365-1876 PAGE.013
JUN 7 '00 15:12
DATE: 06/07/00 TIME: 03:06 PM T0: Dsnnis Hsfferon P 866-0306
-11-
__________________ COMPARISON OF HEADERS
-HEADER 1-
-2-
__________________ COMPARISON OF FOOTERS ------------------
-FOOTER 1-
3v1sy-~5; June 7, 2000
"^~ 401~5~2
auoe 7, zooo
401521.RED
416-365-1876
encE: o14-oao
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DATE: 06/07/00 TIME: 03:06 PM To: Donnie Nsf Eoron P 868-0306
_12-
6]6-365-1876
PAGE: 015-020
This redlined draft, generated by CompareRite -The Instant R.edliner, shows the differences between
original document : I:\APPS\DOCSOPEN\W&FIROSENMAW\0401521.05
and revised document: I:\APPS\DOCSOPEIV\W&FIROSENMAW\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
Juve 7, 2000
401521.RED
JUN 7 '00 15:12 416-365-1878 PAGE.015
DATE: 06/07/00 TIME: 03:06 PM T0: Dannis Ha£Earon P 868-0306
SCHEDULE III
TRANSFER OF EASEMENT
THISAGI2EEMENT made as of the _day of
AMONG:
HYDRO ONE NETWORKS INC.
(hereinafter called "Hydro")
-and-
616-365-1876
RAGE: 016-020
OF THE FIRST PART
THE CORPORATION OF THE MUNCIPALITY OF
CLARINGTON
(hereinafter called the "Municipality")
-and-
BLUE CIRCLE CANADA INC.
(hereinafter called "Blue Circle")
WHEREAS:
OF THE SECOND PART
OF THE THIRD PART
A. Hydro has entered into an easement agreement dated the day of
2000 which was re stered in the Land Registry Office for the Registry
Lan~Tvl~ Division of Durham (No. 40) on the _ day of , 2000 as
Instrument No. (the "EasemeutAgreemeut") inwhich Hydro transferred to Blue
Circle an easement over the Hydro lands as described therein for the purposes of the Westside Creek
Diversion.
$. Asprovided 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:
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.
Ju<,e ~, 2000
412663.RED
JUN 7 '00 15:13 416-365-1876 PAGE.016
016-365-1876
DATE: 06/07/OD TIME: 03:06 PM T0: Dsnnia Maf Enron P 860-0306
_ 'Z
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 W orks 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.
$. 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
PAGE: 017-020
(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 7, 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.
Hydro agrees that the liability of the Municipality artd~ its successors and CLOCA
during such period of time as tt 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 v+ltich 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
Municipality from time to
inenrred contracted by the
Transfer of Easement.
in the liability and casualty lnsurance held by [he
time in respect of liability for risks other than those
Municipality under the Easement Agreement and this
ruoe ~, zooo
41?b63.RED
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OAT6: 06/07/00 TIME: 03:06 PM T0: Dsnnis Heffsron P B6E-0306 916-365-1876 PAGE: 018-020
-3-
S. Blue Circle and Hydro hereto do in all other respects confirm [hat 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 [he 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 , 2000.
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:
UWe have authority to bind the Corporation.
BLUE CIRCLE CANADA INC.
Per:
Name:
Title:
Per:
Name
Title:
I/We have authority to bind the Corporation.
Lune 7, 2000
412663.RED
JUN 7 '00 15:13 416-365-1876 PAGE.018
DATE: 06/07/00 TIME: 03:06 PN T0: Dsnni[ Hsfferon P E6E-0306
4-
COMPARISON OF HEADERS
-HEADER 1-
-2-
------------------ COMPARISON OF FOOTERS ------------------
-FOOTER 1-
~vlaq-25; June 7 2000
",~rcv`T+412~
June 7, 7A00
41?b63.RED
JUN 7 '00 15:14
i16-365-1876 PAGE: 019-020
416-365-1876 PAGE.019
DATE: 06/07/00 TIME: 03:06 PM T0: Dsnnis Heffsron P B6E-0306 416-365-1876 PAGE: 020-020
-5-
This redlined draft, generated byCompareRite -The Instant Redliner, shows the differences between
original document : I:\APPS\DOCSOPEN\W&FIROSENMAW\0412663.04
and revised document: I:~gPPS\DOCSOPEN\W&F\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
Lune 7, 2000
412663.RED
JUN 7 '00 15:14 416-365-1876 PAGE.020
DATE: 06/11/00 TIMe: 02:15 PM TO: Dennis HeEEeron a Bfi8-030fi
<1fi-365-1876
PAGB: OOA-013
ATTACHPIENT N0. 3
AMONG:
MAINTENANCE AND MONITORING AGREEMENT
THIS AGREEMENT made this day of
*N~
BLUE CIRCLE CANADA INC.
(hereinafter referred to as "BC")
2000.
OF THE FIRST PART
-and-
CENTRAL LAKE ONTARIO CONSERVATION
AUTHORITY
(hereinafter referred to as "CLOCA")
OF THE SECOND PART
- and -
THE CORPORATION OF THE MUNICIPALITY OF
CLARINGTON
(hereinafter referred to as the "Municipality")
OF THE THIRD PART
WHEREAS pursuant to Principles of Understanding dated November 3, 1997 as
amended ("Principles") between BC and the Municipality, BC is to construct and install at BC's
cost, the Westside Creek Diversion Works and the Overflow Channel Works and is to implement
the Fish Habitat, Mitigation and Compensation Measures set out in the Letter of Intent attached as
Schedule "B" of the Principles, as such letter may be amended {>y-$E(the "Measures"), which
construction and installation is referred to herein as the "Works" in accordance with the Westside
Creek Diversion Works Plan contained in Schedule "D" to the Principles and the Overflow Channel
Works Plan contained in Schedule "E" to the Principles and the Measures contained in Schedule "B"
to the Principles, copies of which are attached hereto as Schedules "A", "B" and "C" respectively and
are together referred to herein as the "Plans' ;
AND WHEREAS capitalized terms as used herein shall have the same meaning as
contained in the Principles, unless otherwise indicated.
NOW THEREFORE WITNESSETH that in consideration of the premises and
covenants hereinafter expressed, and the sum of Two Dollars ($2.00) of lawful money of Canada,
now paid by each party to the other (the receipt and sufficiency of which is by each of the parties
hereto acknowledged) the parties hereto covenant and agree to and with each other, as follows:
'}-1. CONSTRUCTION AND INSTAL eTION. BC will, by no[ later than duri t e spring
of 2001 commence the construction and installation of the Works in accordance with
the Plans, this Agreement and the Principles and will proceed to complete the Works
in good faith and with reasonable expedition, all at the cost and expense of BC and
in accordance with the Construction Schedule as provided in Schedule "J" attached
to the Principles, subject to ForceMajeure and in a good workmanlike manner and
in compliance with all applicable laws and regulations. To the extent there is any
conflict between the terms of this Agreement and the Principles, then the terms of the
Principles shall prevail. Te Notwithstandine anvthine herein contain d to th
Jvne 11, 2000
410250.RED
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416-365-1676 PRGE.04
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_'Z_
916-365-1876
PAGE: 005-013
contrary. to the extent there is any conflict between the terms of this Agreement and
the requirements of Hydro One Networks Inc. (the successor to Ontario Hydro and
for the purposes of this Agreement defined as "Hydro One"), in the easement and
constmction agreements between Hydro One and BC for the Westside Creek
Diversion Area A (the "Hydro One Agreements"), then the terms of the Hydro One
Agreements shall prevail.
2. FRMrrs ANn APPROVALS. Without restricting the generality of the foregoing, BC
shall obtain at its cost, all required permits, approvals and consents as required by
any applicable laws or regulations, and in carrying out the construction and
installation shall comply with all applicable laws and regulations of any government
or other competent authority relating to the Works.
3.
4. F.NTIRF. AGREEMENT. $- This Agreement, the Schedules hereto, the Principles and
the Hydro One Agreements comprise the whole of the understanding of the parties
with respect to the Works and there are no other agreements, warranties, provisions
or representations, oral, written or implied with respect to the Works.
5. TRANSFERS.
(a) BC agrees upon any sale, transfer or assignment of the lands owned by BC which
farm part of the Diversion Area B and Overflow Channel Lands A as described in
Schedule "D" (the "BC Lands"), BC shall provide to CLOCA and the Municipality
an agreement of the purchaser, transferee, or assignee to be bound by and comply
with all of the terms of this Agreement to the same extent as may then be applicable
in the future as if it had been named in this Agreement in the place and stead of BC.
(b) CLOCA and the Municipality agree upon any sale, transfer or assignment of the
lands or interest in the lands owned by them on which the Works are located. as
described in Schedule "E" (the "Lands") ~_a party other than CLOCA or the
Muni, CLOCA or the Municipality shall provide to BC an agreement of the
purchaser, transferee or assignee to be bound by and comply with all of the terms of
this Agreement to the same extent as may then be applicable in future as if it had
been named in this Agreement in the place and stead of CLOCA or the Municipality.
6. EFAULT. IND .MNITY ND IN eNCF. (r
(a) If BC does not substantially complete the Works as herein provided, and within the
times herein provided, subject to the terms of the Principles, the Measures, the Hydro
One Agreements, Force Majeure and the other provisions hereof, CLOCA upon
thirty (30) days' prior written notice to BC setting out in detail the alleged defaults
of BC and BC's failure within such notice period to propose a constmdion timetable
far the completion which has regard to the time restraints set out in the Principles,
the Measures and the Hydro One Agreements and which is acceptable to CLOCA,
acting reasonably, and the failure of BC to wmplete the Works within the time set
June 11, 2000
410250.RED
JUN 11 '00 14 19
416-365-1876 PAGE.05
INSPECTION. Subject to the terms of the Hydro One Agreements, all Works
undertaken by BC shall be subject to inspection by CLOCA, or its nominee, during
constmction and installation; provided that except in the event of an emergency, prior
notice of such inspections shall be given to BC and any such inspections shall not
interfere with or delay the timing or sequencing of BC's construction activities. For
DATE: 06/11/00 T1ME: 02:15 PH TO: Dennis Hef£eron P 86E-0306
-3-
416-365-1876 eAG6: 006-013
out in such revised construction timetable and so long as the alleged defaults by BC
are not the subject of arbitration as set out in this Agreement, may complete the
Works at the cost and expense of BC, which reasonable out of pocket cost and
expense shall be immediately paid by BC to CLOCA upon accounts being rendered
from time to time. If CLOCA does not exercise its rioh rs nndor r6;s sur6na F/.,~ r..
(b) BC shall indemnify and hold harmless CLOCA and the Municipality from and
against all losses, costs and expenses, claims, demands and actions for or on account
of all damages, losses or injuries arising as a result of the construction and
installation of the Works and the maintenance- renair anA rnnlaromnnf m6o.e
and moairs"l; provided that BC shall not be liable to CLOCA or the Municipality
for any loss, costs, expenses, claims, demands and actions which may be suffered or
sustained by CLOCA or the Municipality by reason of of arising in consequence of
any act or omission by CLOCA or the Municipality respectively or any person in law
for whom CLOCA or the Municipality respectively is responsible. In particular, but
without limiting the generality of the foregoing, BC shall remove from title to any
of the lands of CLOCA or the Municipality or on any of the Lands and the BC Lands
on which the Works aze located, any liens filed pursuant to the ConstructionLienAct
of Ontario in connection with the Works within thirty (30) days of written notice of
such lien being given to BC.
(c) BC shall at all times have the right at its option and expense to dispute and contest
in the name of CLOCA or the Municipality any third party claims for which it
admits, in writing, that in the event such third party claim is held to be valid, BC is
liable to indemnify CLOCA or the Municipality,. as the case may be, under this
section. CLOCA and the Municipality shall fully co-operate with BC and its counsel
in any proceedings with respect to any such third party claim and BC shall pay the
actual costs reasonably incurred by CLOCA and the Municipality. If BC does not
admit it is liable to indemnify CLOCA or the Municipality under this section in
respect of the claim, CLOCA or the Municipality may assert any defence to such
third party claim as it deems reasonable in the circumstances without in any way
reducing the liability of BC under this indemnification.
(d) If BC exercises the option to defend a third party claim, then the following provisions
shall apply:
(i) CLOCA or the Municipality, as the case maybe, 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 CLOCA or of the
Municipality, as the case may be, in each case not to be unreasonably
withheld or delayed. Without limiting the foregoing, CLOCA or the
Municipality may engage its own counsel or other professional
advisors, all reasonable expenses of whom are to be for the account
of BC to review the conduct of such dispute and to advise CLOCA
and the Municipality with respect to the same;
(iii) BC 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 CLOCA or the Municipality to any person whatsoever without the
prior written approval of CLOCA or the Municipality, such approval
not to be unreasonably withheld or delayed and in any event, to be
approved if BC assumes the liability of such settlement or
compromise;
(iv) BC shall be entitled to reasonable access to all relevant books and
records of CLOCA and the Municipality and to their employees that
are necessary for the purpose of defending such third party claim;
June 11, 2000
410250.RED
SUN 11'00 14 20
416-365-1876 PgGE.06
4-
(v) If CLOCA or the Municipality, in each case acting reasonably,
believes there is liability for such third party claim which maybe in
excess of any insurance then held by BC, or any contractor or
licensee of BC for such third party claim or if CLOCA or the
Municipality, in each case acting reasonably, believes that any insurer
in respect of same may deny coverage, then CLOCA or the
Municipality may at its option require BC to post such additional
security as may be reasonably required to secure the potential liability
for such claim.
007-013
(e) BC shall provide, at is expense, and keep in force insurance of the type commonly
called "comprehensive general liability insurance", which insurance will be with
insurers acceptable to CLOCA and the Municipality, both acting reasonably,
(provided that if the insurers are acceptable to Hydro One, CLOCA and the
Municipality shall accept such insurers) 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 lands on which
the Works are located or with respect to the Works by any party to this Agreement
with limits for any one occurrence or or claim of not less than Five Million Dollars
($5,000,000.00). Such insurance shall name CLOCA and the Municipality as an
insured and contain across-liability clause, such insurance at the option of BC may
form part of BC's blanket insurance policy and shall provide and the insurer shall
agree that such policy may not be cancelled or its coverage reduced without thirty
(30) days' prior written notice to CLOCA and the Municipality. BC shall keep on
deposit with CLOCA and 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 renewals thereof and all endorsements thereof sufficient to
show at all times the current status of such insurance as required under this section
and without limiting the generality of the foregoing, BC shall furnish CLOCA and
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 BC fails to comply
with the foregoing, CLOCA or 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 affect such insurance for the benefit of CLOCA, the Municipality and BC
jointly and if CLOCA or the Municipality does so, any premiums paid by it shall be
recoverable from BC on demand.
(f) BC shall provide to CLOCA a complete set of as-built drawings for the Works
immediately following completion of the Works, but in any event, not later than one
hundred and eighty (180) days following substantial completion thereof.
(g) Subject to the terms of the Hydro One Agreements, the Works, when constructed,
shall be the property of the pazty on whose property the Works are located.
7. MAiNTF.NANr'F. eND 1~rrNATION
~.
(a) CLOCA and the Municipality acknowledge that BC has continuing liability under
the Hydro One Agreements respecting the maintenance and repairs of the Westside
Creek Diversion Work on the Westside Creek Diversion Area A and has a continuing
material interest in protecting the BC Lands and its adjacent lands from flooding and
other damage which may result if the Works are not properly maintained and
repaired. CLOCA and the Municipality agree that BC shall be entitled to maintain
and repair the Works in the manner provided by this Agreement and CLOCA and the
Municipality shall permit BC and its employees, agents and contractors to have
access to the Works and the Lands for such purposes. BC shall maintain the Works
in a good and substantial state of repair at all times and shall comply with all
applicable laws and regulations of any government or other competent authority
relating to the Works.
(b) CLOCA and anyone acting pursuant to its authority at their own risk and except in
the event of an emergency upon reasonable prior written notice tc BC, may at any
time enter on the Lands and inspect the Works and, subject to CLOCA first
complying with section 7(c) hereof, ,
' e o t e
7me 11, 2000
410250.1tED
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5-
416-365-1876
PAGE: 008-013
maintenance and renairs of the Work , in order to keep the Works in a goad and
substantial state of repair to perform the functions for which the Works were
designed. Notwithstanding the foregoing, on taking or permitting any of the actions
contemplated by this section 7(b), CLOCA shall not, beyond the extent reasonably
required, disrupt, damage or otherwise interfere with the operations of BC, and
acknowledges and agrees that [o the extent maintenance and repairs to the Works are
required, CLOCA shall be entitled to make same so long as it first complies with
section 7(c) and gives prior written notice thereof to BC and obtains the prior written
consent of BC to such maintenance and repairs, such consent not to be unreasonably
withheld. The reasonable out of pocket cost of such maintenance and repairs shall be
borne by BC.
(c) CLOCA, before carrying out any of the maintenance and repairs as referred to in
section 7(b) hereof, shall give written notice to BC specifying the maintenance and
repairs required and the date by which the maintenance and repairs is ~ to be
conducted, which, except in the case of emergency and subject to Force Majeure,
shall be not less than thirty (30) days or such longer period of time as may be
reasonably required from the date of the notice and if the maintenance andrepair-ia
repairs are not carried out within such period of time and if BC has not referred the
matter to arbitration pursuant to section 8 hereof, CLOCA may perform in a
reasonable manner in the manner repaired by th Hvdro On . A r em n c, such
obligation for the account of BC;, provided that in the event of a perceived
emergency and withoutprejudice to BC's rights under section 8 hereof, CLOCA shall
be entitled to cure such default immediately and shall provide such previous notice
as is reasonably possible to BC prior to so doing, but failure to provide such notice
shall not impair CLOCA's right to cute such default in the event of a perceived
emergency.
(d) In the event that CLOCA remedies the default of BC pursuant to section 7(b) and
section 7(c), BC shall be responsible for reimbursing CLOCA for all out of pocket
costs, expenses and damages reasonably incurred by CLOCA arising from such
default upon submission of a detailed invoice from CLOCA. If BC either fails to
carry out such maintenance and repairs within the time period set out in the notice
or fails to reimburse CLOCA for all costs, expenses and damages incurred, then
CLOCA, after consultation with the Municipality, shall be entitled (withoutprejudice
to its other rights) to terminate this Agreement upon thirty (30) business days' notice
to BC provided that contemporaneously with such notice to BC, CLOCA shall also
provide a copy of such termination notice to the Municipality. CLOCA shall, upon
expiration of the said thirty (30) day period and subject to the following be entitled
to take possession of the Works, exclude from the Works and the Lands any parties
claiming an interest under this Agreement and subject to any governmental orders,
laws or regulations, maintain and repair the Works at the expense of BC for all out
of pocket expenses reasonably incurred by CLOCA. This right of termination is
subject to the qualification that if prior to such termination becoming effective, BC
has served CLOCA with notice of azbittation with respect to the repairs and
maintenance or the costs thereof, such termination shall not be effective unless and
until the arbihators have detemtined that CLOCA is entitled to terminate this
Agreement. Without limiting any other remedies of BC, the right of the termination
is further subject to the qualification that the right of CLOCA to terminate shall not
be exercisable until BC has had a reasonable opportunity after completion of the
arbitration to cure the default.
g^8• AttsrrttanON. Without limiting the right of CLOCA to require [he 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 Agreement 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 particulazity to permit the other party
to adequately respond thereto, and such azbitration 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
Dime 11, 7A00
410250.ItED
SlF! 1 t ' 00 14 21
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06/11/00
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6-
416-365-1876
(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 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 date of receiving the notice to 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 subparagraph (ii), the other party may apply to
a Judge 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 is 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
9.
10.
PAGE: 009-013
(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 casts and expenses of the arbitration;
(d) 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;
(e) the decision of the arbitrator or arbitrators shall be in writing and shall be binding
upon the parties hereto;
(f) the Municipality, at its option, shall be entitled to make representations at any
arbitration and CLOCA agrees to consult with the Municipality on the selection of
the arbitrator to be selected by CLOCA.
NF.ROF TF. MtNATION This Agreement shall not be terminated by any party
except as provided herein or except by mutual consent
MUNICIPALITY' S APPO [NTMENT OF CLOCA.
(a) The Municipality is to obtain a transfer of the easement from Hydro One Networks
Inc. to BC for the Westside Creek Diversion Area A upon completion of the
Westside Creek Diversion Works located thereon and with respect only to such
portion of the Works and the Lands, has become party to this Agreement and to such
extent, shall be entitled to the benefits of and be bound by the provisions of this
Agreement. Until such time as both CLOCA and BC are notified in writing of any
change, the Municipality hereby designates CLOCA as its agent on its behalf and
with its authority for ensuring that the maintenance and repairs of such part of the
Works on the Westside Creek Diversion Area A is ~g performed. The Municipality
and BC confirm that pursuant to section 22(b) of the Principles, the covenants,
provisions and terms in the Principles (save for title) shall not merge on the Closing
Date and that to the extent there is any conflict between the terms of this Agreement
and the Principles, then the terms of the Principles shall prevail;
(b) If the Municipality terminates CLOCA'sdesignationpursuant tosection 10(a) hereof,
then the Municipality shall have the same rights as CLOCA as set out in section 7
and section 8 with respect to the portion of the Works located on the Westside Creek
Diversion Area A.
(c) BC and CLOCA acknowledge and agree that the Municipality has authority to enter
into this Agreement, that every provision is authorized by the law and is fully
enforceable by the parties hereto, and that this Agreement is made by the
Municipality in reliance on the acknowledgment and agreement of CLOCA and BC
as aforesaid.
I~me 11, 2000
410250.RED
JUN 11 '00 14 22
416-365-1876 PRGE.09
7-
11. ~e All 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 BC:
400 Waverly Road South
Bowmanville, ON LI C 3I{3
Attention: Plant Manager
Facsimile No: (905) 623-4695
With a copy to the attention of:
Blue Circle America Inc.
Two Parkway Centre
1100 - 188 Parkway Place
Marietta, Georgia 30067
U.S.A.
Attention: Vice President and General Counsel
Facsimile No: (770) 499-2830
For CLOCA:
Central Lake Ontario Conservation Authority
100 Whiting Avenue
Oshawa, ON L1H 3I3
Facsimile No: (905) 579-0994
For the Municipality:
The Corporation of the Municipality of Clarington
40 Temperance Street
Bowmanville, ON L1C 3A6
Attention: Chief Administrative Officers
Facsimile No: (905) 623-5717
and if such communication is sent by prepaid or registered mail, it shall, 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 of delivery or transmission.
Notwithstanding the foregoing provisions with respect to 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 fallowing 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. Either 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 day"
shall include every day except a Saturday, Sunday or statutory holiday.
12. i.ewc of On raR~n. 'T'his Agreement shall be interpreted and governed by the laws
of the Province of Ontario.
13. TIME oFT . F..ccFNC .Time shall be of the essence of this Agreement; provided
that there shall be reasonable extensions of time to perform any obligation hereunder
arising from events of Force Majeure as defined in the Principles.
14. SUCCESSORS AND ASSrgNS This Agreement will enure to the benefit of and be
bindmg upon the parties hereto and their respective successors and assigns. This
Agreement may only be assigned by BC to a purchaser, transferee or assignee of the
Juoe 11. 2000
alozso.tzen
SUN S1 '00 14 23 416-365-1976 PgGE.10
JA': E: Ce; 1./CO "iME: J2: i~ PM S0; Denme Hefferon a E68-0306 416-365-1E76 PAGE: 011-013
_ 8
BC Lands. This Agreement may only be assigned by CLOCA to a purchaser,
transferee or assignee of the Lands and by the Municipality [o a purchaser, transferee
or assignee of the easement forming part of the Hydro One Agreements.
15.
IN WITNESS WHEREOF the parties hereto have executed this Agreement as of
this day of 2000.
BLUE CIRCLE CANADA INC.
Per:
Name:
Title:
Per:
Name:
Title:
I/We have authority to bind the Corporation.
CENTRAL LAKEONTARIO CONSERVATION
AUTHORITY
Per:
Name:
Title:
Per:
Name:
Title:
I/We have authority to bind the Corporation.
THE CORPORATION OF THE
MUNICIPALITY OF CLARINGTON
Per
Name:
Title:
Per:
Name
Title:
I/We have authority to bind the Corporation.
lime 11, 2000
410250.RED
JLAJ 1 l ' 00 14 ~ 23
416-365-1876 PRGE.31
FURTHER ASSURAN ES. Each party shall do and execute all things, deeds,
documents, acknowledgements, agreements and otherwise as may be reasonably
required to carry out the purpose and intent of this Agreement.
9-
COMPARISON OF HEADERS
-HEADER 1-
-2-
COMPARISON OF FOOTERS
-FOOTER 1-
May-2'hJuoe 11.2000
~ f9z58-~ 4 j
Lune 11, 2000
430250.RED
PAGH: 012-013
dUN 11 '00 14 23
416-365-1876 PgGE. 12
DATE: 06/11/00 TIME: 02:15 PM T0: Dennia Hef Eeron Q 868-0306
-10-
416-365-1876
PAGB: 013-013
This redlined draft, generated byCompareRite -The Instant Redliner, shows the differences between
original document : I:~APPSIDOCSOPEN~W&F\ROSENMAW\0410250.02
and revised document: I:~APPSWOCSOPEN~W&F~ROSENMAW10410250.03
CompareRite found 32 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
Juae 11, 2000
410250.RED
JUN 11 '00 14:23
416-365-1876 PRGE.13
SfaYP gy: 6-12- 0 18 01 ~GARDINfR, R0631:RRTS #2-~ 41fi 868 0306x# 2/ 2
~;- y ATTACHMHNT N0. 4
GgRDINER, ROBERTS swl~ a toy, scoti.l~rra
W King ssroec WeN
BmWvs end SOliciome 'Lerman, C~neda MSH 3Y2
Tdcp6onc (416) 865.66!10
Fxsimib: (416) A65.6636
RAY G. GOODWIN
Duect lane: (4lfi) R65l601
Fi1n01I: [aoodwi~lldillC[-[ObeRS.e0111
June 12, 2000
DELIVERED BY FAX NO. (416) 365-1876
Mr. Wayne Rosenman
Weir Ec Foulds
Barristers & Solicitors
First Canadian Place
Exchange Tower, P.O. Box 480
Suite 1600 - 130 King Street West
Toronto, Ontario
MSX lJ5
Dear Mr. Rosenman:
Re: CLOCA and Blue Circle
Our File: 64,274
Thank you for your letter of June 7th and your letter of June 9th.
We have had discussions with our client subsequent to the meeting at your offices last week and wish
to advise as follows:
CLOCA will not require an easement over Part 4 of the West Side Creek Diversion draft plan.
2. CLOCA is prepared to forego a performance bond during construction if there is a provision
in the Maintenance and Agreement that the works are to be subject to the approval of
CLOCA following the provision of as-built drawings and its conducting a 6na1 inspect of the
works.
3. CLOCA will require that it be an additional insured on all insurance policies in relation to its
maintenarue aad monitoring functions with respect to the Blue Circle lands and Ontario Hydro
lands.
4. CLOCA has no concern with the creation of the noisy attenuation berm at the upper limit of
Closure Area D.
5. CLOCA agrees to an casement in favour of Blue Circle over Parts 4, 10 and 7 of the revised
Waverly Road R-Plan.
JUN 12 '00 16 03 2 416 8656636 PRGE.02
SEKT BY = 6-12- 0 16 00 ; GARD I N[R, ROl3ERTS #2-~ 416 868 0306 # 1 / 2
2
b. CLOCA does wish to have emergency access over the outflow channel via the culvert to be
constructed at the westerly projection of Cedaz Creek Beach Road.
We have received the draft revised Maintenance and Monitoring Agreement which
accompanied your letter of June 11, 2000 and although we have not had an opportunity of
reviewing it with our client as yet, we would request that the language which you have
inserted in paragraph numbered 3 with respect to the determination of an emergency by
CLOCA be carried into the provisions relating to emergencies in the post construction period
as mentioned in paragraphs 7(b) and 7(c), together with the concept that the determination
by CLOCA exercised reasonably and in good faith that the event poses an immediate or
immanent danger shall not be subject to arbitration.
S. In the meeting at your offices, I believe it was agreed that wording would be added to the
Maintenance and Monitoring Agreement to provide that if and to the extent that CLOCA is
required to carry out maintenance or repairs on the Hydro lands, it would be deemed to be
doing so as agent for Blue Circle.
9. CLOCA has also requested that the Maintenance and Monitoring Agreement provide for the
fencing which was agreed to by Blue Circle at the meeting at CLOCA's offices on May 5,
2000. It was agreed that CLOCA would erect the fence and that Blue Circle would pay the
associated costs. The fence is to be of black virryl chain link, six feet in height, with multiple
access points and would be installed following construction by Blue Circle of the works. 1
believe that Mi. Little also indicated that Blue Circle would require its contractor to erect and
maintain a temporary fence in the same location during the construction period.
I am in roceipt of a copy of Mc Hefferon's letter of lone 12, 2000 concerning your letter of June 11,
and his request for amendment to paragraph b(a) of the draft Maintenance and lvtonitoring
Agreemem. Although we appreciate that the Municipality does not wish to be seen as being
responsible for the performance of the obligations of CLOCA, it does not appear to the writer that
the language of Section 6(a) imported any obligation but merely the right to step in if CLOCA were
not to exercise its rights. Accordingly, we would prefer that Section b(a) not be amended by
narrowing the scope of the Municipahty's rights in the circumstances mentioned.
We wilt contact Alec Clute concerning the currem draft of the Maintenance and Monitoring
Agreement as sosyaa~}ve have obtained CLOCA's comments on it.
Ray G. Goodwin
Dues Luu: (4IG) SGS-G624
cc
Dennis Flefferan (Fax: 86$-0306)
Alec Clore (Fax: 416-365.1876)
s:~awa2utwarxcrs
JUN 12 '00 16 03
2 416 8656636 PRGE.01
DATE: O0/12/00 TIt~:
r Weir & Poulds
Barristcrs and Solicitors
Xef Eason Q 868-0306
J.P.Hamilbn M.S. Ardrbald, Q.C. J.D. McKella, C. M., Q.C.
O
C
F
l A.S.Wakim Q.C.
von Veh
Q
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F
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M.J. McOUaltl Q.C. N.W.C. Rosa .
.
B.
in
ay, ,
.
.
.
.
G.H. Rust-D'~e R.W. Rasenman LJ. O'Connor WA.D. Millar
R.R. Wozenile LC.E Tanaka P M. Perell K Prehagan
IJ. Lard R.B. Warren J.O. Cowan J.S. Prypasniak
C.J. Tzekas B.N. McLellan J.D. Campbell G.M. Caplan
R. Anaid J.M. Kuhlman J.G. Richads LA. Borsook
D.R. Rogers LM. l7uHy D.S. Tarshia R.H. Woman
D.P. Ferguson A.K Clu[e J. Rasalak A.G. Formosa
M.J. Dougherty J.BA. Wilkinson J. 05ullivai J.L. Pendell
O.R. Winglield G.W. Ackade/ D.S. Brown B.H. Engel
O.M. Freedmai W.T. EggiNm S.G. Foran B.H. Kussner
S.A. Metcalfe C. Mc41ee Wallace 5. Rukavina T.M. McODnaltl
F. E. Welwyn KE.D. Snell M.K Stephenson A. Modclord
M.J. Sfatrlam RJ. Ouellette KA. Bonrfaca R.M. Rlsan
M.E. Petrie M.D. Sharma KA. Mullin P.K. Winchie
S.C. Wynn
Via Facsimile
Mr. Dennis C. Hefferon
Barrister and Solicitor
2500 - 130 Adelaide Stteet West
Toronto, ON MSH 2M2
Deaz Dennis:
ATTACHMENT NO
Fxcnange Tower
Suite tea0
P.Q. 8oz 480
130 Kn95oset Went
Toronto, Onlerio Canada MSX 1 J5
Tel (41 61 365-111 0
Fan (416) 385-1878
In[emat h[~:/JNWw.WelnWlda.oan
R. Wayne Roaanman
E-mail rceenman@warlaulds.com
Dlract Llne (418) 947-5032
June 12, 2000
Re: Draft Maintenance and Monitoring Agreement among
Blue Circle, CIRCA and the Municipality of Clatington
I acknowledge receipt of your letter dated June 12, 2000 and I apologize if my letter to Ray
Goodwin caused any confusion. The Municipality has no obligation to expend funds to remedy any perceived
defaults of Blue Circle.
The point of my comment to CLOCA is that both the Municipality and CLOCA had the
option at their sole discretion to remedy work if they felt it was of an urgent nature. Blne Circle does not
believe that that eventuality will ever arise.
While I certainly will make the change that you requested, I would point out it restricts the
ability of the Municipality beyondthe area covered by the Hydro easement to take any steps. If you wish this
change, I will make it; but perhaps you might be in a better position if the portion of the sentence
commencing with "then" in paragraph 6(a) was revised to read as follows: "... then the Municipality may at
its sole option and without any obligationto do so, exercisethe rights given to CLOCAunderthis section 6(a)
subject to the [emus hereof ...".
Again, I will make the change that you want as [he intention is not to impose any obligation
whatsoever on the Municipality; but only to provide them an option should they decide to exercise it in the
future. Please let me know what you would prefer.
Yours tmly,
Weir & Foulds
RWRlmd
cc. Mr. Ray Goodwin (via facsimile)
Mr. Wilson Little (via facsimile)
Mr. [aa MacNaughton (via facsimile)
Mr. Philip McClendon (via facsimile)
Mr. Iim Schell (via faaimile)
Mr. Alec Clute
Mr. Mike McQuaid
::ODMA\PCDOCS\W &F1427671 U
R. Wayne Rosenman
JUN 12 '00 14 20 416-365-1876 PRGE.02
DENNIS C. HEFFERON
BARRISTER & SOLICITOR
12 June 2000
BY FAX: 416-365-1876
Weir & Foulds
Barristers and Solicitors
Exchange Tower, Suite 1600
2 First Canadian Place
Toronto, ON MSX 1J5
Attention: Mr. R.W. Rosenman
Dear Mr. Rosenman:
ATTACHMENT N0. 4
Telephone (416) 360-3326
Facsimile (416) 666-0306
Suite 2500
130 Adelaide Street West
Toronto, Ontario
M5H 2M2
TDX Box 36
Re: Blue Circle Canada Inc., CLOCA and the Municipality of Clarington: Draft
Maintenance and Monitoring Agreement Enclosed with Your Letter to Ray
Goodwin of June 11, 2000
The reference to the Municipality in your letter of June 11, 2000 to Ray Goodwin
surprises me. You state on page 2 in part:
"...CLOCA has the assurance that the Municipality is also a party to the
agreement. In such a highly unusual circumstance, if the Municipality believes
that there was such a serious issue which Blue Circle was not performing, it
clearly does have the financial resources to fund repairs on a temporary basis
which it could then claim back against Blue Circle."
The Principles of Understanding at present do not provide for the Municipality to be
a party to or to back up in any way any of the responsibilities of Blue Circle respecting the
Diversion Works and the Dykes in the Maintenance and Monitoring Agreement with CLOCA.
The only purpose for which the Municipality will become a party to the Maintenance and
Monitoring Agreement when the Fourth Amending Agreement is approved by Council and is
executed, is in respect of the Ontazio Hydro easement azea and is to provide for the
Municipality's, Blue Circle's and CLOCA's responsibilities with respect to that area.
-Page2-
Except in respect of the Ontario Hydro easement area the Principles of Understanding
as amended by the Fourth Amending Agreement leave it to Blue Circle and CLOCA to
negotiate a suitable Maintenance and Monitoring Agreement.
In order to avoid any misunderstanding about this matter, please amend paragraph 6(a)
of the above draft Agreement to add the following before the word "then":
"in respect of the portion of the Works located on the Westside Creek
Diversion Area A after the easement in that area is transferred to the
Municipality by BC pursuant to its and the Municipality's agreement with
Hydro One Networks Inc.,".
Yours very truly,
~~~~ ~~
DCH:bg
Dennis C. Hefferon
~~~' / v~
c. Ray Goodwin, Gardiner, Roberts
David Crome, Municipality of Clarington
Stephen Vokes, Municipality of Clarington
ATTACHMENT NO
~~~~ ~~
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I I
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