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HomeMy WebLinkAboutLGL-005-15 -0y[On Clarin Legal services Report If this information is required in an alternate accessible format, please contact the Municipal Clerk at 905-623-3379 ext. 2102. Report To: General Purpose and Administration Committee Date of Meeting: June 22, 2015 Report Number: LGL-005-15 � File Number: Department File ##2030-03-25 By-law Number: Report Subject: ZEP Wind Farm Ganaraska Renewable Energy Approval No. 1426-9RWTSS Recommendations: 1.1 That Report LGL-005-15 be received; 12 That Mayor and Clerk be authorized to execute a Road Use Agreement with Ganaraska Nominee Ltd. substantially on the terms set out in the draft agreement attached to this Report (Attachment 4) if the Environmental Review Tribunal dismisses the appeal of the Director's decision to approve the ZEP Wind Farm; and 1.3 That Clarington Wind Concerns, Grant Greenwood and any delegations be advised of Council's decision. C 4 . rmm �[.ov Legal services Report If this information is required in an alternate accessible format, please contact the Municipal Clerk at 905-623-3379 ext. 2102. Report To: General Purpose and Administration Committee Date of Meeting: June 22, 2015 Report Number: LGL-005-15S File Number: Department File ##2030-08-25 By-law Number: Report Subject: ZEP Wind Farm Ganaraska Renewable Energy Approval No. 1426-9RWTSS Recommendations: 1.1 That Report LGL-005-15 be received; 1.2 That Mayor and Clerk be authorized to execute a Road Use Agreement with Ganaraska Nominee Ltd. substantially on the terms set out in the draft agreement attached to this Report (Attachment 4) if the Environmental Review Tribunal dismisses the appeal of the Director's decision to approve the ZEP Wind Farm; and 1.3 That Clarington Wind Concerns, Grant Greenwood and any delegations be advised of Council's decision. Municipality of Clarington Page 2 Report LGL-005-15 Report Overview This Report has been prepared to provide Council with information relating to the proposed ZEP Wind Farm and to seek authorization to execute a Road Use Agreement. 2e Background 2.1 On January 30, 2015, the Director, Ministry of the Environment and Climate Change approved the renewable energy project that is commonly referred to as the ZEP Wind Farm. A copy of Renewable Energy Approval NUMBER 1426- 9RWTSS) (the "Approval") was previously provided to Council. The Approval contains conditions (M2 and M3) requiring the proponent to enter into a Road Users Agreement with the Municipality and the Region of Durham. 2.2 Attachment 1 to this Report is a Map showing the location of the 9 proposed turbines of the ZEP Wind Farm. 2.3 The company to which the Approval was issued is Ganaraska Nominee Ltd. The proponent has been referred to as ZEP Wind Farm, Sprott Power Corp. and, most recently, Capstone Power Development. 2.4 Council has previously received a lot of background information relating to this proposed project, most recently in Confidential Report LGL-003-15 dated February 9, 2015. 2.5 On February 9, 2015, Council directed staff to appeal the Approval to the Environmental Review Tribunal ("ERT") (Resolution #C-054-15)° On February 13, 2015, an appeal was filed (Attachment 2). 2.6 On February 17, 2015, Clarington Wind Concerns filed a separate appeal. 2.7 On February 19, 2015, the ERT issued a decision respecting a proposed wind farm in the former Township of Manvers (Chain Shan Temple v. Director, Ministry of the Environment). This decision dealt with many of the same issues (relating to the Oak Ridges Moraine Act Protection Act, 2001 and the Oak Ridges Moraine Conservation Plan) that were set out in the Municipality's appeal. In a confidential email dated February 20, 2015, 1 provided Council with an analysis of this decision and its implications on the Municipality's appeal. Municipality of Clarington Report LGL-005-15 Page 3 2.3 On March 2, 2015, Council directed staff to withdraw the ZEP Wind Farm appeal, negotiate a road use agreement, and report back on the results of the negotiations (Item 7 of Resolution #C-065-15). 2.9 On March 30, 2015, Grant Greenwood appeared as a delegation before the General Purpose & Administration Committee to request that the Municipality pass a by-law for mandatory fire suppression equipment on any newly installed wind turbines. Council referred Mr. Greenwood's delegation to staff (#GPA-259- 15). 2.10 In a decision dated April 1, 2015 (Attachment 3), the ERT accepted the Municipality's request to withdraw its appeal. 2.11 The ERT hearing respecting the Clarington Wind Concerns appeal took place in Orono during the week of April 13, 2015. No decision has been issued. The deadline for the ERT to issue its decision is August 13, 2015 (6 months from when the notices of appeal were filed). The ERT typically issues its decisions on renewable energy approvals within a few days of the statutory deadline. 3e Discussion 3.1 In accordance with the direction given by Council on March 2, 2015, staff have negotiated a Road Use Agreement with Ganaraska Nominee Ltd. (Attachment 4) and are recommending that it be executed if the appeal by Clarington Wind Concern is dismissed by the ERT. 3.2 Staff are recommending that the Road Use Agreement be executed for the following reasons: (a) All road-related engineering concerns and site specific planning concerns have been addressed to the satisfaction of the Director of Engineering Services, Director of Operations and Director of Planning Services. (b) Mechanisms are in place to manage and control traffic and other impacts on the local community. For example, the agreement requires that prior to any work being undertaken the proponent must prepare a Traffic Management Plan and a construction schedule for approval by the Director of Engineering Services. (c) During a Public Open House held at Clarke High School on January 23, 2013, the proponent announced that it would "contribute $500,000 toward local initiatives over the life of the project." Section 11.11 of the proposed agreement codifies this commitment. It reads as follows: Municipality of Clarington Report LGL-005-15 page 4 The Developer shall make annual contributions to a community enhancement fund (the "Fund') in the amount of $25,000 to a maximum of$500,000 over 20 years. The Fund shall be used to provide benefits to the local community. The manner in which the Fund is to be administered (including the criteria for determining which local community projects should receive funding) shall be determined by the Community Liaison Committee established in accordance with condition P9 of the REA. (d) The agreement requires that prior to any work being undertaken the proponent must prepare an Emergency Response and Communications Plan for approval by the Director of Emergency and Fire Services. Through this Plan, the fire suppression concerns raised by Mr. Greenwood (all of which are entirely legitimate) will be addressed. In the opinion of staff, making fire suppression requirements part of this Plan is a more efficient and effective way to establish and enforce the fire suppression requirements of the Emergency and Fire Services Department for this project. (e) All financial issues have been addressed to the satisfaction of the Director of Finance (Section 4.11 — Insurance and Article 11 — Financial). 3.3 The Region of Durham will be signing a separate road use (servicing) agreement with the proponent dealing with Concession Road 7 (Ganaraska Road). 4. Concurrence 4.1 This report has been reviewed by the Director of Planning Services, Director of Engineering Services, Director of Operations, Director of Emergency and Fire Services and Director of Finance. They all concur with the recommendations. 5. Conclusion 5.1 It is respectfully recommended that the Mayor and Clerk be authorized to execute a Road Use Agreement with Ganaraska Nominee Ltd. substantially in the form attached to this Report (Attachment 4) if the ERT dismisses the appeal of Clarington Wind Concerns. Municipality of Clarington Report LGL-005-15 page 5 6. Strategic Plan Application - not applicable r `f Submitted by: . Reviewed by:, _` � �_ � AndreZ C. Allison, b. Comm, LL.B Franklin Wu, Municipal Solicitor Chief Administrative Officer Staff Contact: Andrew C. Allison, 905-623-3379 ext. 2013 or aallison@clarington.net Attachments: Attachment 1 — Location Map Attachment 2 — Municipality's Notice of Appeal Attachment 3 ® ERT decision dated April 1, 2015 Attachment 4 -- Road Use Agreement ATTACHMENT NO. 1 LGL-005-2015 ba r e; t � ' `i qw a: {-D Ganaraska-ZEP Wind Turbine Locations ATTACHMENT NO.2 LG L-005-2015 ERT Case No. ENVIRONMENTAL REVIEW TRIBUNAL BETWEEN: THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON -and- DIRECTOR, MINISTRY OF THE ENVIRONMENT NOTICE OF APPEAL OF THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON February 13, 2015 Andrew C. Allison Municipal Solicitor The Corporation of the Municipality of Clarington 40 Temperance St. Bowmanville, Ontario L 1 C 3A6 Tel.: (905)-623-3379 ext 2013 Fax: (905)-623-6020 Email: aallison ,clarington.net Lawyer for the Appellant I i i TO: APPELLATE BODY: Secretary, Environmental Review Tribunal 655 Bay Street, Floor 15 Toronto, Ontario, M6G 1 E5 Tel.: (416) 212-6349 Fax: (416) 326-5370 E-mail: ERTTribunalSecretary @ontario.ca AND TO: ENVIRONMENAL COMMISSIONER OF ONTARIO: Environmental Commissioner of Ontario 1075 Bay Street, Suite 605 Toronto, Ontario, M5S 2B1 Tel.: (416) 325-3377 Fax: (416) 325-3370 E-mail: commissioner(a-)-eco.on.ca AND TO: ISSUING AUTHORITY: Vic Schroter Director, Section 47.5 Environmental Protection Act Environmental Approvals Branch 2 St. Clair Avenue West, Floor 12A Toronto, Ontario, M4V 1 L5 Tel.: (416) 314-8573 Fax: (416) 314-8452 E-mail: vic.sh rote ID-ontario.ca AND TO: PROPONENT: Ganaraska Nominee Ltd. 155 Wellington Street West, Suite 2930 Toronto, Ontario M5V 3H1 Tel.: (416) 649-5002 Fax: (416) 649-1335 E-mail: deva �,capstoneinfra.com 2 CONTACT INFORMATION (a) Appellant The Corporation of the Municipality of Clarington 40 Temperance St. Bowmanville, Ontario L1C 3A6 Attention: David Crome, Director of Planning Services Tel.: (905) 623-3379 ext 2402 E-mail: dcrome(@-clarin tog n.net (b) Appellant's Representative Andrew C. Allison Municipal Solicitor The Corporation of the Municipality of Clarington 40 Temperance St. Bowmanville, Ontario L 1 C 3A6 Tel.: (905) 623-3379 ext 2013 Fax: (905) 623-6020 E-mail: aallison�D_clarington.net APPEAL 1. The Corporation of the Municipality of Clarington ("the Appellant") appeals the decision of the Director to issue Renewable Energy Approval Number 1426- 9RWTSS ("the Approval") to Ganaraska Nominee Ltd. for the project ("the Project") referred to as ZEP Wind Farm Ganaraska. 2. The Project location is municipally known as 4027 Ganaraska Road (Regional Road 9), Orono. The legal description of these lands is Part of Lots 18 — 22, Concession 6, former Township of Clarke, now in the Municipality of Clarington, in the Regional Municipality of Durham. 3 3. All 9 of the Project's proposed turbines will be located on land designated as "Countryside Area" under the Oak Ridges Moraine Conservation Plan ("the Plan"). 4. The 9 turbine sites will disturb approximately 1.2 ha of land during construction and decommissioning. The Project will require approximately 9.5 kilometres of electrical cabling and another 7 kilometres of granular roadways. This infrastructure will disturb a total of more than 10.7 ha of land on the ORM. 5. The Oak Ridges Moraine is, by virtue of the Oak Ridges Moraine Conservation Act, 2001 ("the Act") and the Plan, recognized to be a significant and sensitive natural landform requiring protection. 6. It is the position of the Appellant that engaging in the Project in accordance with the Approval will cause serious and irreversible harm to the plants, animals and the natural environmental. Specifically, the position of the Municipality is that the Project will irreversibly mar the Oak Ridges Moraine landform in this location such that it cannot be maintained as continuous natural landform and environment for the benefit of present and future generations. 7. The Ministry's Technical Guide to Renewable Energy Approvals states as follows: 9.3 OAK RIDGES MORAINE Renewable energy projects at project locations that are located entirely or partly on land subject to the Oak Ridges Moraine Conservation Plan have special provisions that must be considered in an application for a REA. These provisions are located in sections 42-47 of O. Reg. 359109. The provisions were incorporated in the regulation to maintain protection of the Oak Ridges Moraine in respect of renewable energy projects since these are now exempt from the Planning Act. While O. Reg. 359109 describes the minimum legal guirements that pertain to projects in the Oak Ridges Moraine, applications are expected to consider the full intent of the Oak Ridges Moraine Conservation Plan when evaluating the potential for negative environmental effects as a result of the proposed project. (emphasis added) 4 8. The position of the Municipality is that the full intent of the Plan cannot be met in relation to this Project. 9. The intent of the Plan and the Act is set out in section 4 of the ORMC Act which provides, in part, as follows: Objectives The objectives of the Act and Oak Ridges Moraine Conservation Plan are: (a) protecting the ecological and hydrological integrity of the Oak Ridges Moraine Area; (b) ensuring that only land and resource uses that maintain, improve or restore the ecological and hydrological functions of the Oak Ridges Moraine Area are permitted, (c) maintaining, improving or restoring all the elements that contribute to the ecological and hydrological functions of the Oak Ridges Moraine Area, including the quality and quantity of water and its other resources; (d) ensuring that the Oak Ridges Moraine Area is maintained as a continuous natural landform and environment for the benefit of present and future generations; 10. The purpose of"Countryside Areas" is set out in section 13 of the Plan which provides, in part, as follows: 13. (1) The purpose of Countryside Areas is to encourage agricultural and other rural uses that support the Plan's objectives, by, (a) protecting prime agricultural areas; (b) providing for the continuation of agricultural and other rural land uses and normal farm practices; (c) maintaining the rural character of the Rural Settlements. (2) Countryside Areas also have the objectives of, (a) maintaining, and where possible improving or restoring, the ecological integrity of the Plan Area; (b) maintaining, and where possible improving or restoring, the health, diversity, size and connectivity or key natural.heritage 5 features, hydrologically sensitive features and the related ecological functions; (c) maintaining the quantity and quality of groundwater and surface water; (d) maintaining groundwater recharge; (e) maintaining natural stream form and flow characteristics; (17 protecting landform features; (g) according to a trail system through the Plan Area and trail connections to it; and (h) providing for economic development that is compatible with subsection (1) and with clauses (a) and (g). 11. The presence of the proposed turbines and all of the related infrastructure is contrary to the clear intent of the Act and the Plan to preserve a continuous, connected natural landform and environment. It will have an irreversible negative impact on the overall ecological integrity of the ORM and its natural landform. 12. The "Decision on Instrument" posted to the EBR Registry on January 30, 2015 correctly identifies the fact that "projects located on land protected by key provincial plant, such as the Oak Ridges Moraine Conservation Act have additional approval, setback and reporting requirements under O. Reg. 359/09". It goes onto say "[t]hat energy infrastructure was anticipated not to cause negative impacts to the Oak Ridges Moraine can be seen in that energy projects were specifically exempted from the restrictions of the Act." This last statement is not correct. 13. There is no exemption provided to energy infrastructure projects under the Act, and the Plan only allows infrastructure subject to very onerous restrictions j (section 41). Infrastructure projects of all types and sizes, including the Ministry of Transportation's construction of the 407 Highway which is planned to terminate approximately 2 kilometres from the Project location, are subject to these restrictions. The Ministry of Transportation shifted the planned location of the 407 Highway south of the ORM from its 1991 preferred route in order to avoid placing infrastructure on the ORM. I 6 RELIEF REQUESTED 14. The Appellant is appealing all aspects of the Project and all portions of the Approval in so far as they permit development on the Project site that is inconsistent with the protection of sensitive features and functions on the ORM. 15. The Appellant requests that the Environmental Review Tribunal revoke the decision of the Director to issue a Renewable Energy Approval to the Proponent to engage in the Project. 16. The Appellant does not intend to seek a stay of the decision. I 7 ATTACHMENT NO. 3 LG L-005-2015 Environmental Review Tribunal Tribunal de 1'environnement t l Ontario li ISSUE DATE: April 1, 2015 CASE NO(S).: 15-009/15-010 PROCEEDING COMMENCED UNDER section 142.1(2) of the Environmental Protection Act, R.S.O. 1990, c.E.19, as amended Appellant: Municipality of Clarington (ERT Case No.: 15-009) Appellant: Clarington Wind Concerns (ERT Case No.: 15-010) Approval Holder: Ganaraska Nominee Ltd. Respondent: Director, Ministry of the Environment and Climate Change Subject of appeal: Renewable Energy Approval for ZEP Wind Farm Ganaraska Reference No.: 1426-9RWTSS Property Address/Description: 4027 Ganaraska Road (Regional Road 9), Part of Lots 18-22, Concession 6, Orono Municipality: Clarington Upper Tier: Durham Region ERT Case No.: 15-009/15-010 ERT Case Name: Clarington (Municipality) v. Ontario (Environment and Climate Change) Heard: In writing and on March 17, 2015 at Bowmanville, Ontario, and by telephone conference call on March 30, 2015 APPEARANCES: Parties Counsel/Representative' Municipality of Clarington Andrew Allison (in writing only) Clarington Wind Concerns Priya Vittal Director, Ministry of the Environment and Sylvia Davis and Climate Change Alexandra Mingo 2 15-009/15-010 Ganaraska Nominee Ltd. Arlen Sternberg and Dennis Mahony Participant Save the Oak Ridges Moraine Coalition Cindy Sutch+ ORDER DELIVERED BY MARLENE CASHIN, MARCIA VALIANTE, AND ROBERT V. WRIGHT REASONS Background [1] On January 30, 2015, Vic Schroter, Director, Ministry of the Environment and Climate Change (the "Director") issued Renewable Energy Approval Number 1426- 9RWTSS (the "REA") to Ganaraska Nominee Ltd. ("Approval Holder") under s. 47.5 of the Environmental Protection Act("EPA"). The REA is for the construction, installation, operation, use and retiring of a Class 4 wind facility with a total nameplate capacity of 17.6 megawatts, known as the ZEP Wind Farm Ganaraska, to be located in Orono in the Municipality of Clarington, Durham Region, Ontario (the "Project"). [2] On February 13, 2015, the Municipality of Clarington ("Clarington") filed a notice of appeal with the Environmental Review Tribunal ("Tribunal") of the decision of the Director to issue the REA. Clarington appealed on the grounds that the Project will cause serious and irreversible harm to plant life, animal life and the natural environment, in particular, harm to the Oak Ridges Moraine ("ORM"). [3] On February 17, 2015, Clarington Wind Concerns ("Appellant") also filed a notice of appeal of the Director's decision to issue the REA. The Appellant's notice of appeal alleges that the Project will cause serious harm to human health and serious and irreversible harm to plant life, animal life and the natural environment. 3 15-009/15-010 [4] On March 12, 2015, Clarington sent a letter to the Tribunal proposing to withdraw its appeal in Case No. 15-009 with the consent of all the parties. [5] On March 17, 2015, the preliminary hearing was held in Bowmanville. At the preliminary hearing, the Tribunal granted participant status to Save the Oak Ridges Moraine Coalition, an incorporated association ("STORM"), and discussed scheduling of the hearing. Issues [6] The issues are. 1. Whether to accept the proposed withdrawal of Clarington's appeal and dismiss the appeal in Case No. 15-009; 2. Whether to grant participant status to STORM in Case No. 15-010; and 3. Procedural directions in Case No. 15-010. Relevant Rules [7] Rules of Practice of the Tribunal Termination of Proceedings 198. A Proponent or Applicant who proposes to withdraw his or her application, an Appellant who proposes to withdraw his or her appeal, or a Director, a Risk Management Inspector or Official or a municipality who proposes to revoke the decision that is the subject of the appeal shall notify the Tribunal, other Parties, Participants and Presenters by letter. Any Party, Participant or Presenter who objects to the proposed withdrawal of an appeal or revocation, with the exception of the revocation of an order made under section 74 of the Ontario Water Resources Act, shall notify the Tribunal and the other Parties, Participants and Presenters within ten days of the date of the letter. 4 15-009/15-010 199. Where there has been a proposed withdrawal of an appeal agreed to by all Parties and the decision under appeal is not altered by a settlement agreement, a proposed withdrawal of an application, or a proposed revocation of an order made under section 74 of the Ontario Water Resources Act, the Tribunal shall issue a decision dismissing the proceeding. Naming of a Party 63. In deciding whether to name a person as a Party to the proceeding, the Tribunal may consider relevant matters including whether (a) a person's interests may be directly and substantially affected by the Hearing or its result; (b) a person has a genuine interest, whether public or private, in the subject matter of the proceeding; and (c) a person is likely to make a relevant contribution to the Tribunal's understanding of the issues in the proceeding. Naming of a Participant 66. The Tribunal may name persons to be Participants in all or part of a proceeding on such conditions as the Tribunal considers appropriate. A Participant to a proceeding is not a Party to the proceeding. In deciding whether to name a person as a Participant, the Tribunal may consider whether the person's connection to the subject matter of the proceeding or issues in dispute is more remote than a Party's would be. A person who may otherwise qualify as a Party may request Participant status. Discussion, Analysis and Findings Issue 1: Whether to accept the proposed withdrawal of Clarington's appeal and dismiss the appeal in Case No. 15-009 [8] According to Rule 199, the Tribunal shall dismiss an appeal where there has been a proposed withdrawal that has been agreed to by all parties, and the decision under appeal is not altered. [9] The parties have confirmed with the Tribunal in writing that they consent to the withdrawal of Clarington's appeal and that the REA is not altered in any way. The Tribunal has not been notified of any objection to the withdrawal of Clarington's appeal. 5 15-009/15-010 [10] On the basis of what the parties have stated, the Tribunal finds that the parties have agreed to the withdrawal of Clarington's appeal and the REA will not be altered in any way. Therefore, Rule 199 applies. The Tribunal accepts the proposed withdrawal of Clarington's appeal and dismisses the proceeding in Case No. 15-009. Issue 2: Whether to grant participant status to STORM in Case No. 15-010 [11] STORM requested participant status through its representative, Cindy Sutch. STORM seeks to provide evidence regarding the impacts of the Project on the ORM. Ms. Sutch provided the Tribunal with background information on STORM and its prior participation in Tribunal hearings, as well as information regarding the ORM. Ms. Sutch subsequently confirmed that she and a STORM board Member intend to present STORM's evidence jointly as fact witnesses. [12] Neither the Approval Holder nor the Director objected to STORM being granted participant status, so long as it confines its evidence and submissions to issues within the Tribunal's jurisdiction and within the scope of the notice of appeal. [13] The Tribunal noted that STORM has a genuine public interest in the subject matter of the proceeding, as the Project is approved to be constructed on the ORM, and STORM has a history of responsible advocacy respecting issues affecting the ORM. In addition, the Tribunal is satisfied that STORM is likely to make a relevant contribution to its understanding of the issues in the proceeding. For these reasons, the Tribunal grants STORM participant status, subject to the following conditions: STORM's presentation and submissions shall be restricted to issues within the Tribunal's jurisdiction and the scope of this proceeding; STORM shall provide a written copy of its intended presentation by the date scheduled; and the representatives of STORM shall comply with the time allocated for oral presentation of its evidence (approximately one hour). 6 15-009/15-010 Issue 3: Procedural directions in Case No. 15-010 [14] The parties prepared a tentative schedule for the filing of witness statements and the hearing of witnesses. However, due to scheduling conflicts, the parties and the Tribunal modified the initial Schedule of Events by email correspondence subsequent to the in-person preliminary hearing on March 17, 2015. On March 30, the Tribunal held a telephone conference call to determine the date for STORM to serve and file the written copy of its intended presentation. The parties have agreed to a schedule as set out below. [15] The parties have also undertaken to provide the Tribunal with a detailed schedule of witnesses prior to the start of the hearing. [16] The parties have further agreed that final oral submissions, if any, should be scheduled during the week of June 8, 2015. ORDER [17] The Tribunal accepts the withdrawal of the appeal by the Municipality of Clarington and orders that the appeal in Case No. 15-009 is dismissed. [18] In Case. No. 15-010, the Tribunal grants participant status to STORM subject to the following conditions: • STORM's presentation and submissions shall be restricted to issues within the Tribunal's jurisdiction and the scope of this proceeding; • STORM shall provide a written copy of its intended presentation by the date agreed upon; and 7 15-009/15-010 • the representatives of STORM shall comply with the time allocated for oral presentation of its evidence (approximately one hour). [19] The Tribunal directs that the proceeding be conducted in accordance with the following schedule, or as may be varied by agreement of the parties and confirmed by the Tribunal: March 23 (10 a.m.): Appellant to provide its list of witnesses to the parties and the Tribunal March 27 (4 p.m.): Appellant's witness statements to be served and filed April 2 (4 p.m.): Motion records (if any) to be served and filed April 6 (noon): STORM's intended presentation to be served and filed April 7 (4 p.m.): Responding motion records (if any) to be served and filed April 8 (4 p.m.): Reply motion records (if any) to be served and filed April 8 (4 p.m.): Respondents' witness statements to be served and filed April 10 (4 p.m.): Reply witness statements to be served and filed April 13 (10 a.m.) Hearing commences at Orono Community Centre in Orono and will continue on April 14, 15, 27, and April 28, 2015 if necessary May 8 (4 p.m.) Appellant's and STORM's final written submissions to be served and filed May 22 (4 p.m.) Respondents' final written submissions in response to be served and filed May 29 (4 p.m.) Final written submissions in reply, if any, to be served and filed 8 15-009/15-010 Week of June 8: Oral submissions, if any, on a date to be determined. Withdrawal of Appeal Accepted Appeal Dismissed Participant Status Granted Procedural Directions Ordered "Marlene Cashin" MARLENE CASHIN MEMBER "Marcia Valiante" MARCIA VALIANTE MEMBER "Robert V. Wright" ROBERT V. WRIGHT VICE-CHAIR If there is an attachment referred to in this document, please visit www.elto.gov.on.ca to view the attachment in PDF format. Environmental Review Tribunal A constituent tribunal of Environment and Land Tribunals Ontario Website: www.elto.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248 ATTACHMENT NO. 4 LC L-005-2015 ROAD USE AGREEMENT THIS AGREEMENT is made as of the day of June, 2015 BETWEEN: THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON ("Clarington") - and - GANARASF;A NOMINEE LTD. (the "Developer") RECITALS: A. On January 30, 2014, the Director, Ministry of the Environment and Climate Change issued Renewable Energy. Approval Number 1426-9RNAITSS (the "REA") to the Developer. B. The REA permits the construction, installation, operation, use and retiring of a Class 4 wind facility with a total name plate capacity of 17.6 megawatts known as the ZEP Wind Farm Ganaraska, in the Municipality of Clarington, Regional Municipality of Durham (the "Project"). C. The REA sets out terms and conditions to be satisfied by the Developer (the "REA Requirements"). D. Section M (Municipal Consultation) of the REA Requirements includes the requirement for the Developer to make reasonable efforts to enter into a road users agreement with Clarington. E. The Developer wishes to use certain Highways in order to make Deliveries. F. The Developer wishes to temporarily reconstruct or realign certain portions of the Highways to permit Deliveries. G. The Developer wishes to connect access roads from turbines located within the Project to certain Highways to permit ongoing access to the turbines. H. The Developer wishes to install, maintain and operate Electrical Infrastructure pursuant to its statutory rights as a distributor of electricity under the Electricity Act, 1998, I. The parties wish to enter this Agreement to clarify their respective rights and responsibilities in relation to the Project. 37785-2005 1932 352 0.7 Road Use Agreement- ZEP Wind Farm Ganaraska Page 12 NOW THEREFORE Clarington and the Developer agree as follows: ARTICLE 1: INTERPRETATION 1.1 Definitions In this Agreement, including the recitals, "Applicable Law" means all present or future laws, by-laws, statutes, and regulations, and all present or future published directives, rules, policy statements and orders of any Public Authority to the extent that the same are legally binding on the parties in the context of this Agreement, including, (i) Municipal Act, 2001, S.O. 2001, c.25 ("Municipal Act, 2001"); (ii) Electricity Act, 1998, S.O. 1998, c.15, Schedule A ("Electricity Act, 1998"); (iii) Building Code Act, 1992, S.O. 1992, c.23; (iv) Environmental Protection Act, R.S.O. 1990, c. E.19; (v) Green Energy Act, 2009, S.O. 2009, c.12, Schedule A; (vi) Ontario Energy Board Act, 1998, S.O. 1998, c.15, Schedule B; (vii) Highway Traffic Act, R.S.O. 1990, c. H.9 ("HTA"); and (viii) Occupational Health and Safety Act, R.S.O. 1990, c. 0.1; "Clarington" means The Corporation of the Municipality of Clarington including, where appropriate, its agents, consultants, contractors, employees and those for whom it is in law responsible; "Commercial Operation Date" means the date on which the Project achieves commercial operation; "Consulting Engineer" means William McCrae, P. Eng. of the firm CIMA+ or his designate; "Default" means default as defined in section 12.1; "Deliveries" means the transporting of materials, components and equipment including Heavy Vehicles and other overweight or over-size cargoes across or along the Highways to provide for the construction, maintenance, repair or removal of infrastructure for the Project; "Delivery Routes" means the portions of Highways identified as such in Schedule"A"; 37785-2005 19323520.7 Road Use Agreement- ZEP Wind Farm Ganaraska Page 13 "Developer" means Ganaraska Nominee Ltd. including, where appropriate, its agents, consultants, contractors, employees and those for whom it is in law responsible; "Director" means Clarington's Director of Engineering Services (or a designate); "Drainage Works" means all drains within the Highways; "Easement Areas" means the 3 separate portions of the unopened road allowance between Lots 18 and 19, Concession 6 (Morton Road), in the former Township of Clarke shown in Schedule"B"over which the Developer requires access; "Electrical Infrastructure" means infrastructure installed by the Developer within the Highways for the distribution of electricity, including lines of towers and/or poles, with such wires and/or cables (whether above ground or buried), for the distribution of electrical energy and all necessary, and proper footings, cross arms and other appliances, facilities and fixtures for use in connection therewith including vaults and junction boxes (whether above or below ground), manholes, conduit, fiber optics, cables, wires, lines and other conductors of any nature, multiple above or below ground control, communication data and radio relay systems, and telecommunications equipment, including conduit, fiber optics, cables, wires and lines; "Electrical Work" means all work required to construct, maintain, repair and remove Electrical Infrastructure as shown in Schedule "F". "Entrance" means that portion of a Highway from its travelled portion to the private property boundary; "Entrance Work" means all work required to construct the Entrances and remove any identified temporary work as shown in Schedule"U% "FIT Contract" means the Feed-In Tariff Contract Number F-000632-WIN-130-601 between the Developer and the Independent Electricity System Operator; "Heavy Vehicle" means any truck or motor vehicle combination with a gross weight of truck, trailer and load in excess of the maximum allowable weights specified in sections 116— 118 of the HTA; "Highways" means the highways (as defined in section 1 of the Municipal Act, 2001) under Clarington's jurisdiction shown in Schedule "A" which, for greater certainty, incudes the Easement Areas; "Letters of Credit" means the letters of credit described in section 11.8; "Plans" means drawings and/or specifications prepared by a professional engineer respecting any Work including any approved changes; "Project" means the renewable energy generating facility and its appurtenant wind turbines, equipment, buildings, distribution/collection and transmission facilities to be 37785-2005 19323520.7 Road Use Agreement-ZEP Wind Farm Ganaraska Page 14 constructed for the purpose of supplying electricity in accordance with the FIT Contract as further described in Recital B; "Public Authority" means any governmental, federal, provincial, regional, municipal or local body other than Clarington having authority in relation to any aspect of the Project; "REA" means the Renewable Energy Approval Number 1426-9RWTSS issued by the Director, Ministry of the Environment and Climate Change to the Developer; "Road Work" means the temporary reconstruction or re-alignment of road sections, curves and intersections on the Highways to permit the passage of overweight or oversized cargoes, as shown in Schedule "C"; "Term" means the term of this Agreement as set out in section 3.1; and "Work" means all work required to be performed by the Developer under this Agreement within the Highways including Entrance Work, Road Work, Electrical Work and Deliveries. 1.2 Extended Meanings In this Agreement, unless otherwise specified, (a) a grammatical variation of a word or expression defined has a corresponding meaning; (b) references to an Act or By-law shall include any amendments to or replacements of such Act or By-law; (c) references to Articles, sections and Schedules are references to Articles, sections and Schedules in this Agreement; (d) where reference is made to a decision, determination, consent, waiver, approval, notice, request or other communication, such matters shall be deemed to be qualified by the words "acting reasonably"; and (e) every provision by which the Developer is obligated in any way through the words "the Developer shall"will be deemed to include the words "at its expense" (including the payment of any applicable taxes). 1.3 Schedules The following Schedules are attached to and form part of this Agreement: Schedule "A" Delivery Routes Schedule "B" Easement Areas - Morton Road 37785-2005 19323520.7 Road Use Agreement-ZEP Wind Farm Ganaraska Page 15 Schedule "C" Plans showing Road Work Schedule "D" Plans showing Work within Easement Areas Schedule "E" Plans showing Entrance Work Schedule"F" Plans showing Electrical Work ARTICLE 2: GRANT 2.1 License to Use Highways Clarington grants to the Developer (including its agents, consultants, contractors, employees and those for whom it is in law responsible) a non-exclusive right and licence to enter upon and use the Highways (other than the Easement Areas) under their jurisdiction together with such vehicles, equipment and machinery as may be necessary for the purpose of undertaking the Work. 2.2 Easements Clarington grants to the Developer (including its agents, consultants, contractors, employees and those for whom it is in law responsible) a right in the nature of an exclusive easement through, along and over the Easement Areas together with such vehicles, equipment and machinery as may be required to construct (in accordance with Schedule "D"), maintain and repair access roads and install Electrical Infrastructure. 2.3 Restriction on Developer's Rights Unless otherwise explicitly provided for in this Agreement, the rights granted to the Developer under this Agreement shall at all times be subject to, (a) the right of free use of the Highways by all persons or parties otherwise entitled to such use; and (b) the rights of the owners of the property adjoining any Highway to full access to and egress from their property and adjacent Highways, and the right of such persons to construct crossings and approaches from their property to any Highway. ARTICLE 3: TERM 3.1 Term i The rights hereby granted shall be for a 20 year term commencing on the Commercial Operation Date, together with the time required to complete the decommissioning of the Project. There shall be no automatic right of renewal, except if, prior to the end of the initial 20 year term, the Developer obtains an extension of the term of the FIT Contract or secures an 37785-2005 19323520.7 Road Use Agreement-ZEP Wind Farm Ganaraska Page 16 adequate replacement market for the electricity generated by the Project, in which case the Developer may, upon 90 days' notice to Clarington, elect to extend the Term for a period equal to such FIT Contract extension or such other period as the Developer reasonably requires to participate in the replacement market. Upon such notice, the parties shall also enter into good faith negotiations regarding any appropriate amendments to this Agreement. 3.2 Expiration of FIT Contract If the FIT Contract expires or is terminated and not otherwise extended or renewed during the Term, and the Developer does not secure an adequate replacement market for the electricity generated by the Project within one year of the expiry or termination of the FIT Contract, this Agreement shall be terminated. 3.3 Right to Terminate The Developer may terminate this Agreement upon 60 days' notice to Clarington. 3.4 Survival All unfulfilled obligations of the Developer under this Agreement, including those set out in section 10.2, shall survive any termination. ARTICLE 4: PRE-CONSTRUCTION REOUIREMENTS 4.1 Traffic Management Plan Prior to commencing any Work, in accordance with Condition MI of the REA, the Developer shall prepare a Traffic Management Plan for approval by the Director. Amongst other matters, such Plan shall provide, unless the Director otherwise agrees, that, (a) all signs, equipment and traffic pavement markings necessary to implement the Plan shall be consistent with the Ontario Traffic Manual and shall be provided and installed by the Developer; (b) Deliveries that require the use of Heavy Vehicles shall only use the Delivery Routes as shown in Schedule "A" unless approved by the Director; (c) Deliveries shall be limited to weekdays (excluding statutory holidays) between the hours of 7 am and 7 pm unless approved by the Director; (d) appropriate safety measures as required under the HTA and Ontario Traffic Manual - Book 7 must be in place with respect to any delay in the movement of vehicles as a result of any Work; and (e) the Developer shall not be entitled to close or temporarily block any Highway unless, at least 5 business days prior to such closure or blockage, the Developer advises the Director of the timing, location and anticipated duration of such I 37785-2005 19323520.7 Road Use Agreement- ZEP Wind Farm Ganaraska Page 17 closure or blockage and the Director agrees to same. The Developer shall comply with the approved Traffic Management Plan. 4.2 Emergency Response and Communications Plan Prior to commencing any Work, in accordance with Condition L1 of the REA, the Developer shall prepare an Emergency Response and Communications Plan for the approval of Clarington's Director of Emergency and Fire Services which includes, at a minimum, all of the information required by Condition L1 of the REA. The Developer shall comply with the approved Emergency Response and Communications Plan. 4.3 Construction Schedule Prior to commencing any Work, the Developer shall prepare a schedule for the Work and Deliveries that provides for the general sequencing of the construction of Work and all Deliveries for the approval of the Director. The Developer shall undertake all Work in accordance with the approved schedule. 4.4 Notice Prior to commencing any Work, the Developer shall notify any person or body (including school boards and public set-vices) operating within the Highways or in the vicinity of the Highways where such Work is to occur and all abutting property owners, of the details of the anticipated Work, and coordinate with such persons or bodies so as to minimize the potential interference with their use of the Highways. Clarington shall provide assistance to the Developer for the purpose of identifying any persons or bodies to be notified. 4.5 Survey of Existing Conditions Prior to commencing any Work, the Developer shall undertake a road condition survey to determine the existing condition of all Highways (other than the Easement Areas) identified as part the Delivery Routes and provide such survey to the Director for his approval. Notwithstanding the foregoing, upon agreement of the parties, the Developer may use road condition surveys undertaken by Clarington, rather than undertaking its own survey, to determine the existing condition of the relevant Highways. 4.6 Insurance Prior to commencing any Work, the Developer shall arrange for, and maintain during the Term, commercial general liability insurance insuring the Developer against any claims, liabilities, losses, costs, damages or other expenses arising out of or in any way incurred or suffered in connection with the Work. Such insurance shall, (a) be taken out with an insurance company licensed to carry on the business of insurance in the Province of Ontario; (b) provide a limit of liability of not less than $5,000,000.00 for any one occurrence; i 37785-2005 19323520.7 Road Use Agreement- ZEP Wind Farm Ganaraska Page 18 (c) endorse Clarington as an additional insured; (d) provide for a waiver of subrogation in favour of Clarington except to the extent of any negligence, willful misconduct or breach of contract by Clarington; (e) contain a cross liability and severability of interest clause; and (f) provide for a minimum of 30 days' notice of cancellation. The Developer shall provide a Certificate of Insurance evidencing that the required insurance has been obtained and, from time to time, upon reasonable request, provide proof that such insurance is in full force and effect. The issuance of a policy of insurance shall not be construed as relieving the Developer from responsibility for other or larger claims, if any, for which the Developer may be held responsible. 4.7 Site Planning Prior to commencing any Work, the Developer shall submit to Clarington site plans for the Project showing all proposed fencing and landscaping (including that intended to provide visual screening). Notwithstanding the submission of such plans, the parties acknowledge that Clarington's Site Plan By-law No. 2010-139 does not apply to the Project. ARTICLE 5: PROVISIONS RESPECTING ALL WORK 5.1 Approved Plans Clarington hereby approves the location of the Work as shown in Schedules "C", "D", "E" and "F" to the extent that they relate to Highways under their respective jurisdiction and confirm that they have taken into consideration any existing or known future specific municipal or engineering interests affected by the such Plans. If any modifications to the Plans are reasonably necessary for the construction, installation, maintenance,, repair, operation or decommissioning of the Project, the Developer may submit such modifications to the relevant Director for approval. 5.2 Performance To the extent that they are applicable,the Developer shall perform all Work in accordance with, (a) Clarington's Design Guidelines and Standard Drawings, a copy of which can be found at http://vi ww.clarinLyton.net/htdocs/documents/En ping eerie r/Desi Guidelines/Desis7n-Guidelines-.Ian-201 I.t?df, as amended from time to time; (b) Clarington By-law No. 2006-105; (c) Clarington's Traffic and Parking By-law No. 2014-059 including the reduced load restrictions set out in sections 43 and 44; (d) good engineering practices; 37785-2005 19323520.7 I Road Use Agreement-ZEP Wind Farm Ganaraska Pa1?e 19 (e) approved Plans; (f) this Agreement; and (g) Applicable Law. 5.3 Hours Work shall be performed only on weekdays (excluding statutory holidays) between the hours of 7 am and 7 pm. unless the Director otherwise agrees. 5.4 Trees Save and except as identified on an approved Plan or in accordance with subsection 40(4) of the Electricity Act, 1998, the Developer shall not cut, trim, or otherwise interfere with any trees, brush, plants, or other vegetation on any Highway in performing the Work without first obtaining the Director's approval. 5.5 Upgrades If the condition of any Highway or Drainage Works is not sufficient to permit the Developer to carry out its desired operations, the Developer shall carry out any work required to upgrade the Highway or Drainage Works. The Developer shall not carry out any such work without first obtaining the Director's approval. 5.6 Maintenance of Drainage Works The Developer shall monitor and maintain in good working condition and repair all Drainage Works affected by the Work. After the completion of all Work, Drainage Works shall be left in a good working condition to the satisfaction of the Director, save to the extent of any relocation of Drainage Works as part of the Work. 5.7 Restoration If it becomes necessary to break, remove or otherwise pierce the existing surface of any Highway to undertake any Work, the Developer shall repair such surface to the same or better condition as compared to what existed prior to such Work. The Developer shall thereafter, for a period of 24 months following the Commercial Operation Date, monitor that portion of such restored Highways and repair any settling directly caused by the Work to the satisfaction of the Director. 5.8 Repairs The Developer shall be responsible for all costs associated with the repair of any Highways, Drainage Works and Entrances that have been damaged as a result of Deliveries by way of Heavy Vehicles. Any such repair shall restore the road surface and Drainage Works to the same or better condition as compared to what existed prior to the use of the Highway. The Developer 37785-2005 19323520.7 Road Use Agreement- ZEP Wind Farm Ganaraska Page 110 shall complete such repairs to the satisfaction of the Director. 5.9 Inspections The Director and the Consulting Engineer shall be authorized to carry out periodic inspections of any Work while that Work is ongoing or within 30 days of its completion and, within 10 days of any such inspection, direct the Developer to undertake any work that is reasonably necessary to restore or repair the Highways or other property of Clarington to the same or better condition as compared to what existed prior to such Work. 5.10 Disposal of Debris During all construction, the Developer shall maintain the areas of the Highways affected by any Work in a clean and safe condition to the satisfaction of the Director. 5.11 Work on Private Property No Work shall be performed on private property without written permission from the property owner. If requested by the Director,the Developer shall provide proof of such permission. 5.12 As Built Drawings Within 3 months after the Commercial Operation Date, and prior to release of the Letters of Credit, the Developer shall deposit with Clarington as built drawings and plans, together with a final electronic copy(CD ROM or DVD) prepared in an AUTO CAD environment, showing the location, elevations and specifications of any installed Electrical Infrastructure accurate to within +/- 0.3 metres, as well as the location and specifications of any other permanent Highway improvements constructed pursuant to this Agreement. ARTICLE 6: ENTRANCE WORK 6.1 Construction The Developer shall construct all Entrances in accordance the Plans identified in Schedule"E". ARTICLE 7: ROAD WORK 7.1 Construction The Developer shall undertake all Road Work in accordance with the Plans attached as Schedule "C". 37785-2005 19323520.7 Road Use Agreement- ZEP Wind Farm Ganaraska Page I 11 7.2 MTO and Durham Region The Developer acknowledges that any work required within a Highway under provincial or regional jurisdiction is not covered by this Agreement. 7.3 Removal of Temporary Work All temporary work shown on the Plans in Schedule "C" shall be removed within 30 days of completion of the delivery of the final wind turbine component. ARTICLE 8: EASEMENT AREAS 8.1 Construction of Access Roads The Developer shall undertake all work required to construct access roads within the Easement Areas in accordance with the Plans attached as Schedule"D". 8.2 Maintenance The Developer shall be responsible for all costs associated with the repair and maintenance of the access roads to be constructed across the Easement Areas. The Developer acknowledges that Clarington does not and will not maintain the Easement Areas and that it has no intention or obligation to pass a by-law pursuant to subsection 31(4) of the Municipal Act, 2001 to assume the Easement Areas for public use. 8.3 Removal At the expiration of the Term, the Developer, if requested by Clarington, shall remove all works installed in the Easement Areas. ARTICLE 9: ELECTRICAL WORK 9.1 Commencement The Developer shall not proceed with the Electrical Work before receiving permission or approval to proceed from any public or private body required to give permission or approval. For greater certainty, this section 9.1 shall not restrict or limit the right of the Developer to proceed with the work shown in Schedules "C", "D" and "E". 9.2 Installation The Developer shall install Electrical Infrastructure only in the locations shown in the Plans attached as Schedule "F". 9.3 Underground Services The Developer shall install Electrical Infrastructure below-grade within the Highways and Easement Areas, except where required by Hydro One Networks Inc. ("HONI") or where the i 37785-2005 19323520.7 Road Use Agreement- ZEP Wind Farm Ganaraska Page 112 Developer in consultation with Clarington identifies environmental, topographical or other obstacles that require the installation of poles or other above-grade Electrical Infrastructure to permit the transmission of electricity over, around or across the obstacle. Any Plans submitted by the Developer shall identify the locations in which the Developer proposes to install above- grade Electrical Infrastructure. 9.4 Transfer The Developer may transfer components of the Electrical Infrastructure to Hydro One Networks Inc. ("HONI") for incorporation into HONI's electrical distribution infrastructure. Clarington agrees that any such transfer is permitted without its consent. Upon a transfer of any component of the Electrical Infrastructure to HONI, the Developer shall be released from all obligations under this Agreement relating to that component of the Electrical Infrastructure transferred to HONI from and after the date of such transfer. 9.5 Locating Infrastructure The Developer shall mark the location of all Electrical Infrastructure with appropriate markings, accurately identify the location of any Electrical Infrastructure on the Plans, and participate in the "Ontario One Call" system to facilitate ongoing notice to the public of the location of all Electrical Infrastructure. 9.6 Relocation Where in the future as part of the construction or reconstruction of a Highway or Drainage Works it becomes necessary to change the location of any installed Electrical Infrastructure, the Director may, by 6 months' notice from Clarington, require the Developer to do so. The Developer shall complete such work within 90 days of receipt of notice, or such longer period of time as may reasonably be required. The Developer and Clarington may agree upon the apportionment of the cost incurred by the Developer in any such work. In default of an agreement, the apportionment shall be determined in accordance with the Public Service Works on Highways Act, R.S.O. 1990, c. P.49. ARTICLE 10: ABANDONMENT AND DECOMMISSIONING 10.1 Abandonment The Developer may elect to permanently discontinue the use of and abandon any part of the Electrical Infrastructure on at least 60 days' notice to Clarington specifying the part to be abandoned and the date when the abandonment will occur. The Developer shall then either remove all abandoned Electrical Infrastructure and restore the area to substantially the same condition within 90 days of abandonment. 10.2 Decommissioning At the expiry of the Term, or upon the early termination of this Agreement, the Developer shall remove those parts of the Electrical Infrastructure that have been installed within the Highways, and thereafter restore the Highways to at least the same condition that existed prior to the 37785-2005 19323520.7 Road Use Agreement-ZEP Wind Farm Ganaraska Page 113 removal. If the Developer fails to remove any of the Electrical Infrastructure or restore the Highways, then Clarington may remove such Electrical Infrastructure and thereafter restore the Highway without claim, recourse or remedy by the Developer. The reasonable cost of the removal and restoration shall be payable by the Developer. ARTICLE 11: FINANCIAL 11.1 Development Charges Clarington acknowledges that no development charges are payable under its Development Charges By-law No. 2015-035 unless the structures supporting the wind turbine generators exceed 10 square metres. 11.2 Building Permit Fees The Developer shall pay building permit fees for the Project in accordance with Schedule "B" of Clarington By-law No. 2011-036 which requires payment of "$15.72 for each $1,000 of construction value". Clarington and the Developer agree that such construction value of each wind turbine generator is the value of the foundation and structure supporting the turbine and does not include the value of the turbine itself. 11.3 Entrance Fees The Developer shall pay all Clarington fees in relation to the construction of Entrances in accordance with Schedule"A" of Clarington By-law 2006-105. 11.4 Fees in Lieu of Site Plan Fees The Developer shall pay Clarington $1,300 in lieu of any site plan application fees specified in Schedule"A" of Clarington's Fees By-law No. 2010-142. 11.5 Professional Fees The Developer shall reimburse Clarington for all reasonable costs (supported by invoices) incurred by Clarington arising directly from the Work and the administration and enforcement of this Agreement including Clarington's legal, planning, engineering consulting and administrative costs to negotiate and prepare this Agreement, to monitor the construction, maintenance, repair and removal of any Work, and all other related matters subject to a maximum reimbursement of$25,000 to Clarington. Subject to the foregoing, Clarington's legal fees shall be charged in accordance Schedule"A" of Clarington's Fees By-law No. 2010-142. 11.6 Other Permits and Fees Clarington agrees that any permits or approvals that would otherwise be required in connection with the Work (other than building permits) are hereby effectively issued by them to the Developer through the execution of this Agreement. The Developer shall only pay those fees and charges specifically set out in this Agreement associated with the Work. 37785-2005 19323520.7 Road Use Agreement-ZEP Wind Farm Ganaraska Page 1 14 11.7 Representation Clarington represents that the fees required to be paid by the Developer under this Agreement do not and will not during the Term exceed the usual and customary fees that are generally applicable to the public. 11.8 Letters of Credit As security for all of the Developer's obligations under this Agreement in relation to Clarington's Highways, the Developer shall, concurrent with the execution of this Agreement, deposit with Clarington a letter of credit in a form acceptable to Clarington's Director of Finance in the amount of$50,000. 11.9 Use of Letter of Credit Clarington shall be entitled to draw on and use the proceeds from the Letters of Credit to remedy any Default. 11.10 Release of Letter of Credit Within 30 days of the completion of removal of all temporary work identified in the Plans and any repairs and restoration required pursuant to Article 5, Clarington shall release the Letters of Credit. 11.11 Community Enhancement Fund The Developer shall make annual contributions to a community enhancement fund (the "Fund") in the amount of$25,000 to a maximum of$500,000 over 20 years. The Fund shall be used to provide benefits to the local community. The manner in which the Fund is to be administered (including the criteria for determining which local community projects should receive funding) shall be determined by the Community Liaison Committee established in accordance with condition P 1 of the REA. ARTICLE 12: REMEDIES 12.1 Default The Developer shall be in default("Default") if, in the opinion of the Director, (a) the Developer is not constructing any Work so that it will be completed materially in accordance with the construction schedule described in section 4.3 save and except for delays that are not within the control of the Developer; (b) the Work is not being constructed in accordance with this Agreement; (c) the Developer neglects or refuses to complete any repair or restoration required by sections 5.7, 5.8 or 5.9; or 37785-2005 19323520.7 Road Use Agreement-ZEP Wind Farm Ganaraska Page 15 (d) the Developer otherwise defaults in the performance of any Developer obligation under this Agreement. 12.2 Notice If the Developer is in Default and such Default has continued for a period of 30 business days (or such longer period of time as may reasonably be required in the circumstances to cure the Default) after receipt of notice from the Director setting out the particulars of the Default, Clarington may remedy the Default, and the Developer shall reimburse Clarington for any reasonable, documented and direct expense incurred in remedying the Default. The cost of any work which Clarington undertakes pursuant to this section shall include an administration fee of 30%of the contractor's charges to Clarington or, if such work is undertaken by Clarington, 30% of all costs incurred by Clarington to remedy the Default. 12.3 Liens If a claim for a lien in respect of any Work is filed with Clarington, or Clarington receives written notice of a claim of an alleged beneficiary of a statutory trust under the Construction Lien Act, R.S.O. 1990, c. C.30 and the Developer fails to discharge the lien or the claim as the case may be within 10 business days after receipt of notice from Clarington, then Clarington may, (a) pay the full amount of the claim and security for costs into a court of competent jurisdiction in order to obtain an order vacating such claim for lien; or (b) discharge the claim in full by paying the amount claimed. The Developer shall indemnify Clarington against the costs incurred by them in making any payment pursuant to this section including their reasonable legal costs. ARTICLE 13: MISCELLANEOUS 13.1 Dispute Resolution If any party provides another party with notice of a dispute regarding the interpretation or implementation of this Agreement (a "Dispute"), then the affected parties shall use their best efforts to settle the Dispute by negotiating with each other in good faith. If the parties are unable to resolve a Dispute, it shall be-submitted to mediation by an impartial third party to be agreed upon by the parties to the Dispute. If the parties are unable to resolve the Dispute through mediation, then it shall be referred to arbitration in accordance with the provisions of the Arbitration Act, 1991, S.O. 1991, c.17. 13.2 Indemnity The Developer shall indemnify and save harmless Clarington from and against all claims, liabilities, losses, costs (including legal costs as between a solicitor and his own client) and damages that it may incur as a consequence of or in connection with the exercise of the Developer's rights under this Agreement, except if the claims, liabilities, losses, costs or 37785-2005 19323520.7 Road Use Agreement- ZEP Wind Farm Ganaraska Page 116 damages are due to negligence or intentional misconduct by Clarington. 13.3 Consent Required The Developer shall not assign this Agreement, except to an affiliate, lender or mortgagee, without the consent of Clarington. No consent shall be required for the Developer to assign this Agreement to an affiliated or successor entity, lender or mortgagee (including for purposes of securing indebtedness or other obligations respecting the Electrical Infrastructure or the Project). The Developer shall obtain the acknowledgement that any transferee or assignee has notice of and acknowledges this Agreement, and agrees (upon exercise of any security interest in this Agreement, where applicable) to be fully bound by and to perform the duties and obligations of the Developer in the same manner as if such person was an original signatory to this Agreement. 13.4 Conflict Nothing in this Agreement shall abrogate or prejudice any statutory rights held by any party under any Applicable Law including the Ontario Energy Board Act, 1998, the Green Energy Act, 2009, the Municipal Act, 2001 and the Electricity Act, 1998. If there is any conflict between a provision of this Agreement and any Applicable Law, the Applicable Law shall prevail. 13.5 Further Assurances Each of the parties agrees with the others that it shall execute and deliver, at the request of another party, all such further documents, agreements and instruments, and will do and perform all such acts as may be necessary to give full effect to the intent and meaning of this Agreement. 13.6 Registration Neither this Agreement nor notice of it shall be registered against title to any lands. 13.7 Notices All notices, communications and requests for approval which may be or are required to 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 Clarington: Municipality of Clarington 40 Temperance Street Bowmanville, ON L1C 3A6 Attention: Director of Engineering Services Fax: 905-623-9282 Email: tcannellanclarin rton.net To the Developer: Ganaraska Nominee Ltd. 155 Wellington street West, Suite 2930 Toronto, ON M5K 3H1 37785-2005 19323520.7 Road Use Agreement- ZEP Wind Farm Ganaraska Page 117 Attention: Aileen Gien, Associate General Counsel Phone: (416) 649-1300 Fax: (416) 649-1335 Email: agien(�capstoneinfra.com 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. 13.8 Governing Law This Agreement shall be governed by, and be construed and interpreted in accordance with, the laws of Ontario and the laws of Canada applicable in Ontario. 13.9 Counterparts This Agreement may be executed by facsimile or PDF transmission and in one or more counterparts, all of which shall be considered one and the same Agreement. 13.10 Approvals Wherever an approval or consent is required to be given under this Agreement, the consent or approval shall not be unreasonably withheld, delayed or conditioned and any withholding of approval or consent shall be accompanied by reasons therefor. The party from whom an approval or consent is required shall, within 15 business days after the request for approval or consent is received, advise in writing the party requesting such approval or consent that it consents or approves, or that it withholds its consent or approval. 13.11 Successors and Assigns This Agreement shall extend, be binding upon and enure to the benefit of the parties, their respective successors and permitted assigns. 13.12 Covenants Each obligation in this Agreement, even though not expressed as a covenant, is considered for all purposes to be a covenant. Each covenant is a separate and independent covenant and a breach of covenant by any party shall not relieve the other parties from their obligations to perform each of their covenants, except as otherwise provided in this Agreement. 13.13 Severability The invalidity or unenforceability of any provision in this Agreement shall affect the validity or enforceability of such provision only and any such invalid provision shall be deemed to be severable from the balance of this Agreement. 13.14 Amendment No supplement, modification, amendment or waiver of this Agreement shall be binding unless 37785-2005 19323520.7 Road Use Agreement- ZEP Wind Farm Ganaraska Page 1 18 executed in writing by all parties. WITNESS WHEREOF the parties have executed this Agreement. THE CORPORATION OF THE MUNICIPALITY OF CLARINGTON Mayor Adrian Foster Anne Greentree, Municipal Clerk GANARASKA NOMINEE LTD. Per: Per: 37785-2005 19323520.7 i Road Use Agreement- ZEP Wind Farm Ganaraska Pale J 19 Schedule"A" Delivery Routes 37785-2005 19323520.7 c q SIMCOE y O y A PETERBOROUGH y : p 9N m y KAWARTHA O rn y n yy y 90 LAKES Q fZ 9 GO 9 Y � .-.�'•O� 9O 0 ya _O o DURHAM NORTHUMBERLAND YORK N C NGE�`ON�Op m PpSKp °PO. u "{ 90 GpNp tyo TORONTO- O LEGEND GAN ROAD ACCESS LOCATIONS 6 ---- HAUL ROUTE s PROVINCIAL HIGHWAY REGI ONAL RO AD(DURHAM) 09 90 MUNICIPAL ROAD(CLARINGTON) yo WSP ACCESS ROADS PERMANENT cE55`ON�OpO 0 9R`.£ 9 WSP ACCESS ROADS TEMPORARY c e o y0 a512 o a UNOPENED ROAD ALLOWANCE yo y ZEP WIND FARM GANARASKA T3 aT 4 TURBINE LOCATIONS AT LIMIT OF CAPSTONE PERMITTING a RESPONSIBILITY <u+ 9 9 1ONROp�6 o.,m sammiunmHmmi nom,�, N CO mno +are.MVCn zafa 9a 9 a^ f a m 9 v O o �y ®� 9 GAN WTG DELIVERY ROUTE MAP 9 v A yo � Kp � 5 i O O0 F 9 90 SON 'CpU�ON�OpU �0 9 yo co ANARASKA NCE ORONO,ONTARIO O y 9 y0 y0 s 2 y N �Na O DATE: 2015-06-15 SCALE: 1:30000 4 PERMITS OUTSIDE THE`LIMIT OF 90 �OP05 CAPSTONE PERMITTING PROJECT:141-25063-00 FILE.NO.:CAP-GAN-P-GIS-0003 yo NcEss 9 RESPONSIBILITY'AREA SHALL BE FIGURE REV G c O SENVION SCOPE sp ISSUED FOR BID ya Road Use Agreement - ZEP Wind Farm Ganaraska Pne 120 Schedule "B" Easement Areas - Morton Road I i i 37735-2005 19323520.7 I I I I I I NOTES ■WS P F LEGEND: t µ� ,i toNSmutnoxlWrtS iii SS °`i` 4 '� NOT POR rte" GANARASKA NOMINEE LTD. 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GANARASKA NOMINEE LTD. ..uiN woaR oN wEwrr E%rwsons r0 BE 3o0m CIO CAPSTONE INFRASTRUCTURE TEMPORARY INTERSECTION oN`�DRD �R`PRG"DO"N` DB' ROAD WIDENING i_..,,.CAPSTONE-= N: 4876687 ZEP WIND FARM ---- % _-- GANA OVERSWING AREA E: 693057 OF CLA —" MUNICIPALITY OF CLARINGTON ______ _____ ___ ___ _____________ _f____—___—_—___—_ ---__—__—___ DURHAM REGION,ONTARIO bo �- 7 —j 2i 20.7—-� 22.0 GANARASKA CAD 39.3 ------------------ ---- ---- — CSP CULVERT EXTENSION (TEMPORARY) 3s . l ❑ w s.. TEMPORARY INTERSECTION o ❑ ;/ ROAD WIDENING CQ�PLER �: :I: ° I I µ7s I II I II jl I � � 1 ENCaoncnvENr PERBrtwuwiNc I cAxARASicA ROnD,wD�ETVEE RDAD I i j CARCANCOWCAptO I I � UtD 0.PE0.MiM B B �.b:�.:.-r.w�ae-a...rauwur•r�.�...r�sr..�v.�.uw..,..m.. 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C/O CAPSTONE INFRASTRUCTURE CAPSTONE ZEP WIND FARM GANARASKA MUNICIPALITY OF CLARINGTON —- ° DURHAM REGION,ONTARIO 1 4 ` T 11 ���ie earzc Y I T 1 w©rn.,��. 11 I a®iro,�� „1 I w®i em,i r .wnem..u,wr. nwy�v.wrovwmwua�¢m..wnwv C y _ v v, .� `m �wQ wama,u_'vasw.rwne Ww<urno-evrrnew oa.wt /E1 TYPICAL SECTION n TYPICAL SECTION n TYPICAL SECTION TYPICAL SECTIONoa'.< n TYPICAL DETAIL z INDICATOR DETAIL n SPLICE DETAIL eu c,oea.vs„a ��•,.on ELECTRICAL E�COLLECTION SYSTEM TRENCH CONFIGURATION DETAILS COLLECTION SYSTEM COLLECTION SYSTEM COLLECTION SYSTEM COLLECTION SYSTEM POWER CABLE POWER CABLE POWER CABLE LOW VOLTAGE SYSTEM FIBER OPTIC GROUNDING WIRE LOW VOLTAGE SYSTEM &� CAP-GAN-E-DWG5201 a DIRECT BURIAL s DIRECT BURIAL n DIRECT BURIAL T POWER CABLE IN CONDUITS e I� n DIRECT BURIAL �o GROUNDING WIRE m vuoe*uu mmicLLOCrNU - iw oc*uu iu+onNU mP�+otTNU cve onuu iw� +a sown cea +a ISSUED FOR BID C Road Use Agreement - ZEP Wind Farm Ganaraska Page 123 Schedule "E" Plans Showing Entrance`York 37735-2005 19323520.7 LEGEND � � , I �NpDWN RB i i / WS P mcE pF cPrva flora �aL�anc�o s I I I I �,d..m,o,�a,�,m,e� aorroM of orta _ p u.alN BOAD—, ORON ON, I /� ,L.�weuaoPPicwi w.c l"�.r,x�aasmu — — :on Aw.sNAG ESS I , I V IAB tM0 I I NQm P�"'A"a+T AOCEn ® I I i f101u i0 ME uc MANUAL pISTANCE EN MINIMUM I � I I � t STOPPING SIGHT AT MI5 fNIiWIGf IS FOR BOM ME SOUM Anp OflM A➢PflaCNm TOO ME DESIGN SPEm OF BOwN/n ON EOwERr Rap. 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CIO CAPSTONE INFRASTRUCTURE ICAPSTONE mw o[ I ZEP WIND FARM. GANARASKA MUNICIPALITY OF CLARINGTON DURHAM REGION,ONTARIO Y \ � _ � � `✓ `� 1 cl��'�wu ..,cv ao,rmr.v.«v oo-�ui wcswe[[mum..n C \ .�on / nl 1, rwvvrm..wror. n TYPICAL SECTION �Fl APICAL SECTION /i1 TYPICAL S,EaCTION np I� CAL SECTION 0 r?� TYPICAL DETAIL INDICATOR DETAIL Csl SPLICE DETAILa w `mom I �.Krs ® ELECTRICAL COLLECTION SYSTEM imaa \,,.P rmumrr y,i,w � � E wY 9n TRENCH CONFIGURATION DETAILS COLLECTION SYSTEM COLLECTION SYSTEM COLLECTION SYSTEM COLLECTION SYSTEM POWER CABLE POWER CABLE POWER CABLE LOW VOLTAGE SYSTEM FIBER OPTIC GROUNDING WIRE LOW VOLTAGE SYSTEM CAP-GAN•E•DWG-5201 n DIRECT BURIAL Cs1 DIRECT BURIAL [G1 DIRECT BURIAL n POWER CABLE IN CONDUITS e IN CONDUITS n DIRECT BURIAL o GROUNDING WIRE r-IRECruu nuu irxoruu IwTIGI0E ICUO T v rmlO ND „ „ ISSUED FOR BID C