HomeMy WebLinkAboutEGD-020-14 Unfinished
Business (a)
C]aFftMR REPORT
ENGINEERING DEPARTMENT
Meeting: GENERAL PURPOSE AND ADMINISTRAT ON COMMITTEE
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Date: June 9, 2014 Resolution#:6PA_ � By-law#: ` c) 1\ ,
Report#: EGD-020-14 File#:
Subject: EASEMENT AGREEMENT BETWEEN HYDRO ONE NETWORKS INC. AND
THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON FOR THE
USE OF AN UNOPENED ROAD ALLOWANCE TO ACCESS HYDRO ONE
NETWORKS INC. LANDS
RECOMMENDATIONS:
It is respectfully recommended that the General Purpose and Administration Committee
recommend to Council the following:
1. THAT Report EGD-020-14 be received;
2. THAT since the Langmaid Road site has been approved by the Minister of the
Environment as the preferred site for the proposed Clarington Transformer
Station, the Easement Agreement (Attachment 2) for access purposes be
entered into with Hydro One Network Inc. (HONI) for the use of the unopened
road allowance between former Townships of East Whitby and Darlington (that
part of the unopened road allowance north of Winchester Road as shown in
Schedule `A' of Attachment 2);
3. THAT pursuant to Section 35 of the Municipal Act, 2001, S.O. 2001, c.25,
Council pass the by-law contained in Attachment 3 to this Report to temporarily
restrict the public right of passage over that portion of the road allowance
between the former Townships of East Whitby and Darlington described as Part
3 on Plan 40R-28285;
4. THAT the Mayor and the Municipal Clerk be authorized to sign this Easement
Agreement subject to the final approval of the Engineering drawings by the
Director of Engineering Services; and
CORPORATION OF THE MUNICIPALITY OF CLARINGTON
40 TEMPERANCE STREET, BOWMANVILLE, ONTARIO L1C 3A6 T 905-623-3379
Ciadwgton REPORT
ENGINEERING DEPARTMENT
5. THAT all interested parties listed in this report and any delegations be advised of
Council's decision.
Submitted by: Reviewed by:
A.S. Cannella Franklin Wu,
Director of Engineering Chief Administrative Officer
Services
ASC/LJB/dv/jb
CORPORATION OF THE MUNICIPALITY OF CLARINGTON
40 TEMPERANCE STREET, BOWMANVILLE, ONTARIO L1C 3A6 T 905-623-3379
REPORT NO.: EGD-020-14 PAGE 3
1.0 BACKGROUND
1.1 On January 2, 2014 the Minister of the Environment, in a letter to Mr. Doug
Magee, Environmental Planner— Hydro One Networks Inc. (HONI), confirmed
that HONI can proceed with the construction of the Clarington Transformer
Station under the provisions of the Class Environmental Assessment for Minor
Transmission Facilities and as outlined in the Project documentation subject to a
number of conditions specified in the letter.
1.2 As identified in the EA documents for the project, the approved access to the site
is from the unopened road allowance north of Winchester Road/Concession 7
(the road allowance between the former Townships of East Whitby and
Darlington). See Attachment 1 — Key Map.
Consequently, HONI must enter into an Easement Agreement with the
Municipality and the City of Oshawa which would allow HONI to improve the road
allowance and construct an access to the Clarington Transformer site. The
Municipal Solicitor has confirmed that this is the most appropriate manner in
which to accommodate their request.
1.3 The Agreement (Attachment 2) clarifies the responsibility of HONI regarding
construction, maintenance, repairs, gating, engineering, insurance etc. It is
necessary for the City of Oshawa to enter into the same agreement with HONI,
and the City has indicated their willingness to enter into the Agreement which will
go before their Council in June. The agreement holds both municipalities
harmless during the term of the use of the right-of-way.
Once the construction of the transformer station is complete, the easement will
continue to be used for periodic access to the site.
2.0 COMMENTS
2.1 One of the Minister's conditions to allowing the project to proceed is the
following:
"The Proponent [HONI] shall be responsible for the formation of a Community
Liaison Committee, should members of the public or other parties be interested in
participating. The CLC shall be established by the Proponent within 6 months of
the Minister's decision on the Part II Order requests for the Project. The CLC
shall be established for the purposes of disseminating and exchanging
information and monitoring results relevant to the project during detailed design
and construction, and discussing any issues or concerns raised by CLC
members."
The first meeting of the Community Liaison Committee is scheduled for June 5th
2014 and the engineering drawing and design of the road access for the
Transformer Station is scheduled to be discussed at the meeting. At the time of
the preparation of this report the community input to the committee on the
REPORT NO.: EGD-020-14 PAGE 4
engineering drawings for the construction of the access road were not available.
Staff is satisfied that the engineering design is generally satisfactory and can be
approved subject to the receipt of supporting documentation and consideration of
the input from the community to the satisfaction of the Director of Engineering
Services.
The Proponents shall invite representative (s) of the Enniskillen Environmental
Association and members of the public that expressed interest in the Project.
Meetings shall be held as may be required or on an annual basis until Project
operation.
3.0 CONCURRENCE
This report has been reviewed by the Municipal Solicitor who concurs with the
recommendations.
4.0 CONCLUSION
In accordance with the Minister of the Environment's decision to allow the
Clarington Transformer Station project to proceed, staff recommend that the
Mayor and Clerk be authorized to enter into the Easement Agreement with Hydro
One Networks Inc. to allow improvements on the unopen road allowance
between former Townships of East Whitby and Darlington for the purposes of
accessing the site subject to the final approval of the engineering drawings by the
Director of Engineering Services. Staff further recommend that By-Law 2014-
be enacted to temporarily restrict the use of a portion of the road allowance.
CONFORMITY WITH STRATEGIC PLAN — Not Applicable
Staff Contact: Leslie J. Benson, Manager, Development Engineering & Traffic
Attachments:
Attachment 1 - Key Map
Attachment 2 - Draft Easement Agreement among Hydro One Networks Inc., the
Corporation of the Municipality of Clarington and the Corporation of the City of Oshawa
Attachment 3 - A By-law to temporarily restrict the use of a portion of the road
allowance between the former Townships of East Whitby and Darlington
List of interested parties to be advised of Council's decision:
City of Oshawa
Hydro One Networks Inc.
Enniskillen Environmental Association
LOT 35 LOT 34
HYDRO ONE NETWORKS INC.
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Attachment#2
EGD-020-14
EASEMENT AGREEMENT
THIS AGREEMENT is as of the day of June, 2014.
AMONG:
HYDRO ONE NETWORKS INC.
("Hydro One")
- and -
THE CORPORATION OF THE
MUNICIPALITY OF CLARINGTON
("Clarington")
- and -
THE CORPORATION OF THE
CITY OF OSHAWA
("Oshawa")
WHEREAS:
(a) Hydro One is proposing to construct a new Transformer Station on property
that it owns on Part of Lots 34 and 35, Concession 7, former Township of
Darlington, now in the Municipality of Clarington, Regional Municipality of
Durham (the "Property");
(b) The Property is adjacent to an unopened portion of the Road Allowance
between the former Townships of East Whitby and Darlington (the "Road
Allowance");
(c) The Road Allowance is under the joint jurisdiction of Clarington and Oshawa
(the "Municipalities");
(d) Hydro One has requested permission from the Municipalities to improve and
traverse upon that portion of the Road Allowance described as Part 3 on Plan
40R-28285 and a small portion of land owned by Clarington adjacent to the
Road Allowance described as Part 2 on Plan 40R-28285 (the "Easement
Area") in order to facilitate access to the Property; and
(e) The Municipalities have agreed to permit Hydro One to make such
improvements and traverse the Easement Area on the terms set out in this
Agreement.
Hydro One Easement Agreement Page 2
NOW THEREFORE the Municipalities and Hydro One agree as follows:
Grant
1. Subject to section 2, the Municipalities hereby grant to Hydro One a right in
the nature of an exclusive easement through, along and over the Easement
Area for the purpose of constructing, repairing and maintaining a road that
will provide ingress to and egress from the Property. Such easement shall
include the right of Hydro One, its agents and all other persons authorized
by it to bring such vehicles, machinery and equipment as may be required
to construct, repair and maintain an access road (the "Road").
2. The Municipalities or any persons authorized by the Municipalities shall be
permitted access through any portion of the Easement Area for any
Municipal purpose including pedestrian passage provided that if such
access is required through any construction area, the person(s) requiring
access shall first report to the person responsible for the safety of the
construction area and shall at all times respect Hydro One's occupational
health and safety requirements. For greater certainty, the right described
in this section shall apply to any consultants who may require access to a
portion of the Road Allowance north of the Easement Area for the purpose
of carrying out hydrological monitoring.
Restricted Access
3. Hydro One shall construct a gate at the location shown in Schedule "A" in
order to prohibit public access to the Easement Area. The type of gate shall
be approved by Clarington's Director of Engineering Services.
4. Hydro One shall provide copies of any keys to the gate to the Clarington's
Emergency and Fire Services Department and Clarington's Operations
Department.
5. The Municipalities shall, by by-law, restrict common law access to the
Easement Area for the duration of this Agreement.
Term
6. This Agreement shall commence on the date first written above and shall
continue until it is terminated in accordance with Section 7, 8 or 9 of this
Agreement (the "Term").
Termination
7. Hydro One may terminate this Agreement upon 3 months notice to the
Municipalities.
Hydro One Easement Agreement Page 3
8. Hydro One agrees to release this Easement in the event that all or any
portion of the Easement Area is dedicated as a public road by the
Municipalities.
9. If Hydro One has not commenced construction of an access road within 1
year of the commencement of this Agreement, this Agreement shall
automatically terminate.
10. Neither the Municipalities nor Hydro One shall be entitled to make any claim
for compensation or costs as a result of any party exercising its right to
terminate this Agreement or the Municipalities dedicating all or any portion
of the Easement Area as a public road.
11. If this Agreement is terminated, Hydro One shall be under no obligation to
remove any improvements made within the Easement Area.
Construction of Road Improvements
12. Hydro One shall not commence any construction within the Easement Area
unless Clarington's Director of Engineering Services has reviewed and
approved engineering drawings for the work. For clarity, any maintenance
of the Road during the Term shall not be subject to such approval.
13. Hydro One shall be required at its cost and expense to obtain all necessary
permits and approvals in relation to any work undertaken within the
Easement Area.
14. Hydro One shall be responsible for all costs associated with the
construction, repair and maintenance of work related to the Road
undertaken within the Easement Area during the Term.
Insurance
15, Hydro One shall maintain throughout the term of this Agreement public
liability insurance satisfactory to Clarington in which the Municipalities are
named as co-insureds but only with respect to their respective interest in
the operations of the Hydro One under this Agreement. Such policy shall
provide a limit of liability of not less than $5,000,000.00 for any one
occurrence and shall provide that it cannot be altered, cancelled or allowed
to lapse without thirty (30) days prior notice to Clarington.
16. Hydro One shall provide Clarington with a certificate of insurance upon
request.
17. The issuance of any policy of insurance shall not relieve Hydro One from
responsibility for other or larger claims, if any, for which Hydro One may be
held responsible.
Hydro One Easement Agreement Page 4
18. Notwithstanding anything to the contrary contained herein, Hydro One shall
be entitled to self-insure its insurance obligations herein and for so long as
Hydro is self-insured, Hydro shall not be required to provide any proof of
insurance and the insurance shall be deemed to be in place.
Indemnification
19. Hydro One shall indemnify and save the Municipalities harmless from any
and all costs arising from and against all actions, causes of action, suits,
claims and demands whatsoever, including legal fees, which may arise,
directly or indirectly (collectively the "Claim"), by reason of the Municipalities
granting the rights described in this Agreement save and except and to the
extent to which Claim is caused by the negligence or willful misconduct of
the Municipalities, either jointly or severally.
Damage
20, Hydro One shall use its best efforts to avoid damaging any adjacent
municipal highways during the course of any construction, repair or
maintenance of the Road. Hydro One shall forthwith repair any damage to
any highway that does occur at its sole expense and to the satisfaction of
the Municipalities.
Default
21. If Hydro One is in default of any obligation under this Agreement and such
default has continued for a period of 48 hours (or such longer period of time
as may be reasonably required in the circumstances to cure the default)
after written notice from either Clarington or Oshawa setting out the
particulars of the default, then the municipality that issued the notice shall
be entitled to rectify the default to the extent that it, in its sole and absolute
discretion, deems appropriate and Hydro One shall be liable to pay such
municipality's reasonable costs associated with such rectification.
22. Notwithstanding Section 21, notice shall not be required in any situation
deemed by either municipality to be an emergency.
23. No waiver of any of provision of this Agreement shall be deemed or shall
constitute a waiver of any other provision of this Agreement, whether or not
similar, nor shall such waiver constitute a continuing waiver unless
otherwise expressly provided.
Registration of Agreement
24. Hydro One shall be entitled to register this Agreement or notice thereof
against title to the Easement Area. The Municipalities shall execute, at no
Hydro One Easement Agreement Page 5
further cost or condition to Hydro One, such other instruments, plans and
documents as may reasonably be required to effect such registration.
Fees
25. Hydro One shall pay to Clarington upon execution of this Agreement a fee
in the amount of $3,000.00 (inclusive of HST) for the preparation of this
Agreement. Hydro One shall also pay all costs associated with the
registration of this Agreement against title to the Property and any other
related documents, including any amendments to this Agreement.
Successors and Assigns
26. The burden and benefit of this Agreement shall run with the Easement Area
and the works and undertaking of Hydro One. This Agreement shall enure
to the benefit of and bind the parties and their respective successors and
assigns.
Severability
27. If a court of competent jurisdiction should declare any clause or part of a
clause of this Agreement to be invalid or unenforceable, such clause or part
of a clause shall not be, construed as being an integral part of this
Agreement or having persuaded or influenced either party to this Agreement
to execute the same, and it is hereby agreed that the remainder of this
Agreement shall be valid and in full force and effect.
Entire Agreement
28. This Agreement constitutes the entire agreement between the parties
pertaining to the Easement Area and supersedes all prior and
contemporaneous agreements, undertakings, negotiations, and
discussions of the parties, whether oral or written. There are no warranties,
representations or other agreements relied upon by either party. No
amendment, supplement, modification, waiver or termination of this
Agreement shall be binding unless it is completed in writing and is signed
by both parties.
Applicable Law
29. This Agreement shall be interpreted under and is governed by the laws of the
Province of Ontario.
Schedule
30. Schedule "A", being Plan 40R-28285, is attached to and forms part of this
Agreement.
Hydro One Easement Agreement Page 6
Notice
31. Any notice that is required to be or may be given under this Agreement shall
be in writing and shall be transmitted by facsimile, mailed by first class
prepaid post, sent by e-mail or delivered:
To Hydro One: Hydro One Networks Inc.
1800 Main Street East
Milton, ON L9T 5139
Attention: Andrew Luis, Real Estate Coordinator
Facsimile: 905-878-8356
Email: andrew.luis@HydroOne.com
To Clarington: The Corporation of the Municipality of Clarington
40 Temperance Street
Bowmanville, ON L1 C 3A6
Attention: Muncipal Clerk
Facsimile: 905-623-0830
Email: clerks clarington.net
To Oshawa: The Corporation of the City of Oshawa
50 Centre Street South
Oshawa, ON L1 H 3Z7
Attention: Denny Boskovski, Manager,
Infrastructure Services
Facsimile: 905-436-5694
Email: DboskovskiRoshawa.ca
or such other address or number of which a party has notified the others.
Any such notice shall be effective from the date that it is so transmitted,
mailed, emailed or delivered.
Registration Priority
32. Neither of the Municipalities shall grant or transfer an easement or permit,
or create any encumbrance over or in respect of the Easement Area prior
to registration of this Agreement. Hydro One has permission to approach
any prior encumbrancers or any third parties who have existing interests in
the Easement Area to obtain all necessary consents, postponements or
subordinations (in registrable form) from all current and future prior
encumbrancers and third parties, if necessary, consenting to this
Agreement, and/or postponing their respective rights, title and interest so
as to place this Agreement and the transfer of easement rights in first priority
on title to the Easement Area.
Hydro One Easement Agreement Page 7
IN WITNESS WHEREOF the Municipalities and Hydro One have signed this
Agreement.
HYDRO ONE NETWORKS INC.
Per:
THE CORPORATION OF THE MUNICIPALITY
OF CLARINGTON
Per:
Adrian Foster, Mayor
Per:
Anne Greentree, Municipal Clerk
THE CORPORATION OF THE CITY OF
OSHAWA
Per:
Per:
Hydro One Easement Agreement Page 8
SCHEDULE "A"
PLAN 40R-28285
—
AND PART Of TItCR-04D
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Outlined in red is approximate location of Hydro One gate. The location of
the gate is not to scale and conceptual design only.
Attachment# 3
EGD-020-14
THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON
BY-LAW 2014-
A by-law to temporarily restrict the use of a portion of the road allowance
between the former Townships of East Whitby and Darlington
WHEREAS:
(a) Hydro One Networks Inc. ("Hydro One") is proposing to construct a new
Transformer Station on property that it owns on Part of Lots 34 and 35,
Concession 7, former Township of Darlington, now in the Municipality of
Clarington, Regional Municipality of Durham (the "Property");
(b) The Property is adjacent to an unopened portion of the Road Allowance between
the former Townships of East Whitby and Darlington (the "Road Allowance");
(c) The Road Allowance is under the joint jurisdiction of Clarington and Oshawa (the
"Municipalities");
(d) Hydro One has requested permission from the Municipalities to improve and
traverse upon that portion of the Road Allowance described as Part 3 on Plan 40R-
28285 (the "Easement Area") and a small portion of land owned by Clarington
adjacent to the Road Allowance described as Part 2 on Plan 40R-28285 in order to
facilitate access to the Property;
(e) The Municipalities have agreed to permit Hydro One to make such improvements
and traverse the Easement Area on the terms set out in an Agreement between
them dated as of June , 2014 (the "Agreement");
(f) In the Agreement, the Municipalities have agreed to temporarily remove the
public right of passage over the Easement Area to allow Hydro One to construct,
maintain, repair and use the Easement Area as part of an access road to the
Property; and
(g) Section 35 of the Municipal Act, 2001, S.O. 2001, c.25 provides that a
municipality may pass by-laws removing or restricting the common law right of
passage by the public over a highway.
NOW THEREFORE the Council of The Corporation of the Municipality of Clarington
enacts as follows:
i
1. Subject to sections 2 and 3 of this by-law, the public right of passage is hereby
restricted over the Easement Area for the duration of the Agreement.
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2. Hydro One shall permit the Municipalities to use the Easement Area as reasonably
required, without fee or charge, subject to the conditions set out in the Agreement.
3. Emergency vehicles shall be permitted to use the Easement Area at all times.
4. This by-law shall be effective on the date that it is passed.
5. This by-law shall remain in effect until the Agreement has terminated.
By-law passed this 16th day of June, 2014.
Adrian Foster, Mayor
Anne Greentree, Municipal Clerk
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Towhline Road Allowance By-Law 2 P a g e
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