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Report To: General Purpose and Administration Committee
Date of Meeting: June 22, 2015 \\��
Report Number: LGL-006-15 �a sw GPf4- 4Lka__\5
File Number: Department File# 2030-05-16 By-law Number:
Report Subject: Clarington Wind Farm
Renewable Energy Approval No. 8383-9R8PSW
Recommendations:
1.1 That Report LGL-006-15 be received;
1.2 That the Mayor and Clerk be authorized to execute a Road Use Agreement with
Clarington Wind Power (GP) Inc., as general partner for and on behalf of Clarington
Wind Power LP, substantially on the terms set out in the draft agreement attached to
this Report (Attachment 2); and
1.3 That Preet Khurana, Gerry Mahoney, the Port Hope Area Initiative and any delegations
be advised of Council's decision.
Municipality of Clarington Page 2
Report LGL-006-15
Report Overview
This Report has been prepared to provide Council with information relating to the
proposed Clarington Wind Farm and to seek authorization to execute a Road Use
Agreement.
2. Background
2.1 On December 8, 2014, the Ministry of the Environment and Climate Change
approved the renewable energy project that is commonly referred to as the
Clarington Wind Farm. A copy of the Renewable Energy Approval (NUMBER
8383-9R8PSW) (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, the Region of Durham and Atomic
Energy of Canada Limited (now Canadian Nuclear Laboratories Inc.).
2.2 Attachment 1 to this Report is a map showing the proposed location of Clarington
Wind Farm's 5 turbines.
2.3 The proponent for the project is Clarington Wind Power (GP) Inc., as general
partner for and on behalf of Clarington Wind Power LP, a partnership under the
laws of Ontario ("Clarington Wind"). In July 2012, Charles Edey, President of
Leader Resources Service Corp., appeared as a delegation before Council to
speak to this matter.
2.4 Council has previously been given much information relating to this proposed
project, most recently in Confidential Report LGL-011-14 dated December 15,
2014 and Confidential Report LGL-001-15 dated January 12, 2015.
2.5 On December 15, 2014, Council passed Resolution #C-387-14 which, in part, (a)
requested that the Port Hope Area Initiative and the CNSC review and formally
comment on the information presented by Preet Khurana on behalf of the South
East Clarington Ratepayers' Association (SECRA) at the December 15, 2014
Council meeting; and (b) directed staff to file an appeal of the Approval and seek
further Council direction after the filing. Mr. Khurana's concerns focused on the
possibility that the proposed turbines could interfere with dust management
activities on the Port Granby site.
Municipality of Clarington
Report LGL-006-15 Page 3
2.6 In accordance with Resolution #C-387-14, an appeal was filed with the
Environmental Review Tribunal (ERT) on December 22, 2014.
2.7 Prior to filing the appeal, staff met twice with Mr. Khurana and once with Gerry
Mahoney (who also appeared as a delegation before Council on December 15,
2014). Mr. Khurana's concerns formed the basis of the Municipality's appeal.
Staff also briefly consulted with Dr. Tony van der Vooren (the Municipality's peer
review consultant) before filing the appeal.
2.8 On December 23, 2014, staff received formal comments from PHAI in relation to
the concerns expressed by Mr. Khurana. PHAI provided us with an Erratum to
the report entitled "Impact of Wind Turbine Operation on Dust Management at
the AECL Port Granby Site" prepared by Dr. Richarz of Echologics Engineering
Ltd.
2.9 In early January, staff met with Dr. van der Vooren, Mr. Khurana and other
residents of the area to discuss several technical and practical issues in relation
to the appeal. Their input was extremely valuable.
2.10 On January 12, 2015 (Resolution #CC-01-15), Council directed staff to settle the
ERT appeal on specified terms, including a requirement that Clarington Wind
provide an additional anemometer near the north-west corner of the licensed
area of the Port Granby site. Staff were also directed to negotiate the terms of a
road use agreement.
2.11 In accordance with Council's direction, Minutes of Settlement dated January 22,
2015 were entered into with Clarington Wind. In these Minutes, Clarington Wind
agreed to provide an additional anemometer to the Municipality to be owned and
operated by the Municipality or Canadian Nuclear Laboratories Inc. at the Port
Granby site.
2.12 In a letter to the ERT dated January 26, 2015, the Municipality withdrew its ERT
appeal. In a decision dated February 13, 2015, the ERT formally accepted the
Municipality's request to withdraw.
3. Discussion
3.1 In accordance with the direction given by Council on January 12, 2015, staff have
negotiated a Road Use Agreement with Clarington Wind and are recommending
that it 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
Municipality of Clarington
Report LGL-006-15 Page 4
Services, Director of Operations and Director of Planning Services.
Specific road-related concerns of the residents have also been addressed.
For example, some residents were adamant that they would not allow any
trespass onto or over their properties during the deliveries of the wind
turbine components. The haul route shown in the agreement respects
their position. There are mechanisms in place to manage and control
other traffic impacts on the local community. For example, the agreement
requires that prior to any work being undertaken Clarington Wind must
prepare a Traffic Management Plan and a construction schedule for
approval by the Director of Engineering Services.
(b) 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.
(c) All financial issues have been addressed to the satisfaction of the Director
of Finance (Section 4.6 - Insurance and Article 11 — Financial).
3.2 The concerns of PHAI as they relate to Elliott Road can be addressed by the
Municipality on PHAI's behalf and consequently CNL has not been added as a
party to the agreement. There are no Regional roads on the haul route and
therefore, notwithstanding conditions M1 and M2 of the Approval, the Region is
not a party to any road use agreement with Clarington Wind.
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 Clarington Wind Power (GP) Inc., as
general partner for and on behalf of Clarington Wind Power LP substantially on
the terms set out in the draft agreement attached to this Report (Attachment 2).
Municipality of Clarington
Report LGL-006-15 Page 5
6. Strategic Plan Application
6.1 Not applicable.
6
Submitted by: f``%'p Reviewed by: ` {
Andrew C. Allison 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 — Road Use Agreement
ATTACHMENT NO. 1
LGL-006-15
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Port Granby Wind Turbine Locations
ATTACHMENT NO. 2
LG L-006-15
ROAD USE AGREEMENT
THIS AGREEMENT is made as of the 29" day of June, 2015
BETWEEN:
THE CORPORATION OF THE
MUNICIPALITY OF CLARINGTON
("Clarington")
- and -
CLARINGTON WIND POWER(GP)INC. as general partner
for and on behalf of CLARINGTON WIND POWER LP
(the "Developer")
RECITALS:
A. On December 8, 2014, the Director, Ministry of the Environment and Climate Change
issued Renewable Energy Approval Number 8383-9R8PSW(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 8.1 megawatts,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 and Agency Consultation) of the REA Requirements includes the
requirement for the Developer to make reasonable efforts to enter into a road user agreement
with Clarington, the Regional Municipality of Durham ("Durham Region") and Atomic
Energy of Canada Limited("AECL").
E. The Developer wishes to use certain Highways in order to make Deliveries.
F. One of the Highways that the Developer wishes to use is Elliott Road which Her Majesty
the Queen in Right of Canada represented by the Minister of Natural Resources ("Canada")
has exclusive use of(subject to specified conditions) by virtue of a lease agreement dated
April 11,2012 between Clarington and Canada,and By-law 2012-036 passed by Clarington
Council.
G. The Developer also wishes to use a portion of East Townline Road which is a boundary
road under the joint jurisdiction of The Corporation of the Municipality of Port Hope and
Clarington.
Road Use Agreement- Clarington Wind Farm Page 12
H. Under a boundary road agreement dated December 6, 2010, Clarington is responsible for
the maintenance and repair of, and exercises municipal access and consent powers in
relation to, the portion of East Townline Road that the Developer wishes to use.
I. Notwithstanding Section M of the REA Requirements, the Developer does not require the
use of any Highway under the jurisdiction of Durham Region.
J. Notwithstanding Section M of the REA Requirements, the AECL (now Canadian Nuclear
Laboratories Inc.) is not a party to any agreement that gives it any rights in relation to the
Elliott Road (such rights having been granted to Canada in the lease agreement referred to
in Recital F).
K. The Developer wishes to temporarily reconstruct or realign certain portions of the Highways
to permit Deliveries.
L. The Developer wishes to connect access roads from turbines located within the Project to
certain Highways to permit ongoing access to the turbines.
M. 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.
N. The parties wish to enter this Agreement to clarify their respective rights and responsibilities
in relation to the Project.
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;
Road Use Agreement- Clarington Wind Farm Page 13
(vii) Highway Traff c Act, R.S.O. 1990, c. H.9 ("HTA"); and
(viii) Occupational Health and Safety Act, R.S.O. 1990, c. 0.1;
"Canada"means Her Majesty The Queen In Right of Canada as represented by the Minister
of Natural Resources including, where appropriate, its agents, consultants, contractors,
employees and those for whom it is in law responsible;
"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 under the FIT Contract;
"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 using Heavy
Vehicles and 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";
"Developer" means the Clarington Wind Power (GP) Inc. as general partner for and on
behalf of Clarington Wind Power LP 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 unopened portions of the Lancaster Road road allowance
identified as such in Schedule`B";
"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".
Road Use Agreement- Clarington Wind Farm Page 14
"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 the
identified temporary work as shown in Schedule "D";
"FIT Contract" means the Feed-In Tariff Contract Number F-000684-WIN-130-601
between the Developer and Independent Electricity System Operator (successor to the
Ontario Power Authority) dated May 15, 2010;
"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;
"Highway" has the same meaning as in section 1 of the Municipal Act; 2001 which, for the
greater certainty, incudes the Easement Areas;
"Letter of Credit" means the letter 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 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 or Canada having authority in relation to any aspect of the
Project;
"REA" means the Renewable Energy Approval Number 8383-9R8PSW 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.
Road Use Agreement- Clarinaon Wind Farm Page 15
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 - Lancaster Road
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 gnants to the Developer a non-exclusive right and licence to enter upon and use the
Highways (other than the Easement Areas) under their jurisdiction or control together with such
vehicles, equipment and machinery as may be necessary for the purpose of undertaking the Work.
Road Use Agreement- Clarington Wind Farm Paize 16
2.2 Lancaster Road Easements
Clarington grants to the Developer a right in the nature of an 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, operate,
maintain and remove 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;
(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; and
(c) the rights of Canada to use Elliott Road North as set out in a lease agreement dated
April 11, 2012 between Clarington and Canada.
ARTICLE 3: TERM
3.1 Term
The rights hereby granted as between Clarington and the Developer shall commence July 1, 2015
and continue until 180 days following the twentieth anniversary of the Commercial Operation Date,
together with the time required to complete the decommissioning of the Project(the"Term").
There shall be no automatic right of renewal unless prior to the end of the Term the Developer
obtains an extension of the term of the FIT Contract or secures an 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 reasonable requires to participate in the replacement market. Upon such
notice,the Developer and Clarington shall enter into good faith negotiations regarding the extension
of the Term and any appropriate amendments to this Agreement.
3.2 Expiration of FIT Contract
If the FIT Contract expires or is terminated during the Term and not otherwise extended or renewed,
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. The Developer shall provide written notice to Clarington if the Developer is able to
secure an adequate replacement market for the electricity generated by the Project.
J
Road Use Agreement- Clarington Wind Farm Page 17
3.3 Right to Terminate
The Developer may terminate this Agreement upon 60 days' written notice to Clarington and
Canada.
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 M1 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 agree,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) scheduled 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;
(e) appropriate safety measures are in place respecting all railway crossings; and
(f) the Developer shall not be entitled to close or temporarily block any Highway unless
the timing,location and anticipated duration of such closure is specifically identified
in the Plan.
The Developer shall comply with the approved Traffic Management Plan.Clarington acknowledges
that scheduled Deliveries may be subject to delays which result in deliveries outside timeframe
stipulated in sub-paragraph (c). Where circumstances result in Deliveries outside the stipulated
timeframe, the Developer shall communicate with Clarington and Canada as applicable to inform
them of situation.
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 the Director and
Road Use Agreement- Clarington Wind Farm Page 18
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 an overall construction and Deliveries
schedule that provides for the general staging of the construction of Work and all Deliveries for the
approval of the Director. The Developer shall coordinate its Work with Canada and shall provide
reasonable accommodation to Canada in carrying out its Work. To the extent possible, the
Developer shall undertake all Work in accordance with the approved schedule and shall work with
Clarington and Canada if circumstances require a change to the schedule.
4.4 Notice
Prior to commencing any Work, the Developer shall notify any person or body (including school
boards and public services)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.
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 approved by Clarington's Director of
Finance and 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;
(c) endorse Clarington as an additional insured;
(d) provide for a waiver of subrogation in favour of 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
Road Use Agreement- Clarington Wind Farm Page g1 9
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 all 4
parcels of land on which the Project will be located showing all proposed fencing and landscaping.
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"
and confirms that it has 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 necessary for
the construction, installation, repair, operation or decommissioning of the Project, the Developer
shall submit such modifications to the 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://www.clarington.net/htdocs/documents/En ineerin /g De�
Guidelines/Design-Guidelines-Jan-2011.pdf, as amended from time to time;
(b) Clarington's traffic and Parking By-law No. 2014-059 including the reduced load
restrictions set out in sections 43 and 44;
(c) good engineering practices;
(d) approved Plans;
(e) this Agreement; and
(f) Applicable Law.
5.3 Hours
Except as provided for in the schedule, is necessary for safety, or unless the Director otherwise
agrees, Work shall be performed only on weekdays (excluding statutory holidays) between the
hours of 7 am and 7 pm.
Road Use Agreement- Clarinaton Wind Farm Page 1 10
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 on any
Highway in.performing the Work without first obtaining the Director's approval. Cutting of trees
shall be in accordance with the direction of a qualified arborist.
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 their condition immediately prior to the use of the Highway. The
Developer 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 and, if necessary, direct the Developer to undertake any necessary restoration or repair
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.
Road Use Agreement- Clarington Wind Farm Page 11
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 Application to Elliott Road
For any Work undertaken within Elliott Road,the Developer shall co-operate with Canada.
5.13 As Built Drawings
Within 3 months after the Commercial Operation Date, and prior to release of the Letter 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 Applicable Standards
The Developer shall construct all Entrances in accordance the Plans identified in Schedule "E",
Clarington By-law No. 2006-105 and Clarington's Policy For Entrances approved by Clarington
Council on June 1, 2015.
ARTICLE 7: ROADWORK
7.1 Construction
The Developer shall undertake all Road Work in accordance with the Plans attached as Schedule
«C,1
7.2 Elliott Road Improvements
The Developer shall coordinate the relocation or installation of guiderails or entrance gates on
Elliott Road that Canada may reasonably request.
7.3 MTO
The Developer acknowledges that any Work required within a Highway under provincial
jurisdiction is not covered by this Agreement.
7.4 Removal of Temporary Work
All temporary work shown on the Plans in Schedule "C" shall be removed within 30 days of
Road Use Agreement - Clarington Wind Farm Page 112
completion of the delivery of the final wind turbine components.
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 within the Easement Areas. The Developer acknowledges that
Clarington does not and will not clear snow from or otherwise 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 Restricted Access
The Developer shall construct gates at the locations shown in Schedule "D" in order to prohibit
public vehicular access to the Easement Areas. The type of gate shall be approved by the Director.
The Developer shall provide copies of any keys to the gates to the Clarington's Emergency and Fire
Services Department and Clarington's Operations Department.
8.4 Removal
At the expiration of the Term, the Developer, if requested by Clarington, shall remove all works
installed in the Easement Areas other than Electrical Work owned or jointly owned by Hydro One
Networks Inc. or successor thereto.
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 including
Canadian National Railway and Canadian Pacific Railway. 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 Transfer
Clarington acknowledges that the Developer may transfer components of the Electrical
Infrastructure to Hydro One Networks Inc. ("HONI") for incorporation into HONI's electrical
Road Use Agreement- Clarington Wind Farm Page 113
distribution infrastructure. Clarington agrees that any such transfer is permitted without further
consent of Clarington. 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.
9.4 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.
9.5 Relocation by Clarington
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, Clarington
may,by 6 months' notice,require the Developer to do so. The Developer shall complete such work
within 90 days of receipt of notice from Clarington,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 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
installation. 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
To the extent applicable under current Applicable Law, development charges in relation to the
Road Use Agreement- Clarington Wind Farm Pagel 14
Project shall be calculated and paid in accordance with the development charge by-laws of Durham
Region, Kawartha Pine Ridge District School Board, Peterborough Victoria Northumberland and
Clarington Catholic District School Board, and Clarington. 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 or the e-house foundation exceed 10 square
metres. Except as expressly provided,nothing in this Agreement is intended to broaden or expand
Clarington's authority or jurisdiction to charge the Developer fees,charges,and levies beyond what
is permitted by current Applicable Law.
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
To the extent fees have not been incorporated into amounts related to any of sections 11.1, 11.2,
11.3 and 11.4, and to the extent permitted by Applicable Law, the Developer shall reimburse
Clarington and Canada for all reasonable costs (supported by invoices) incurred by Clarington and
Canada arising directly from the Work and the administration and enforcement of this Agreement
including Clarington's and Canada'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. 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 Clarington 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.
11.7 Representation
Clarington represents that the fees required to be paid by the Developer under this Agreement do
Road Use Agreement- Clarington Wind Farm Page l 15
not and will not during the Term exceed the usual and customary fees that are generally applicable
to the public.
11.8 Letter of Credit
As security for all of the Developer's obligations under this Agreement, the Developer shall,
concurrent with the execution of this Agreement, deposit with Clarington a letter of credit or other
acceptable financial assurance in a form acceptable to Clarington's Director of Finance in the
amount of$1.00,000.
11.9 Use of Letter of Credit
Clarington shall be entitled to draw on and use the proceeds from the Letter 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 Letter of Credit.
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
(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.
Road Use Agreement- Clarinmton Wind Farm Pagel 16
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 Clarington in making any
payment pursuant to this section including Clarington's 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 and Canada from and against all
claims, liabilities, losses, costs (including legal costs-as between a solicitor and his own client) and
damages that they 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 damages
are due to negligence or intentional misconduct by Clarington or Canada.
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 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
Road Use Agreement- Clarington Wind Farm Page 117
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
Bowmanvi lle, ON L 1 C 3A6
Attention: Director of Engineering Services
Fax: 905-623-9282
Email: tcannellakclarin ton.net
To the Developer: Clarington Wind Power(GP) Inc.
147 Mahood Johnson Drive
Kincardine, Ontario
N2Z 3A2
Attention: Charles Edey, Vice President
Fax: 1-519-396-3690
Email: chuckedey @leaderwind.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.
Road Use Agreement- Clarinaton Wind Farm Pagel 18
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 30 after the request for approval or consent is received, advise
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.
i
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
executed in writing by all parties.
I�
Road Use Agreement - Clariu)ton Wind Farm Page 19
WITNESS WHEREOF the parties have executed this Agreement.
THE CORPORATION OF THE MUNICIPALITY
OF CLARINGTON
Mayor Adrian Foster
Anne Greentree, Municipal Clerk
CLARINGTON WIND POWER(GP) INC.
as general partner for and on behalf of
CLARINGTON WIND POWER LP
Per:
Per:
I
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Road Use Agreement- Clarington Wind Farm Page 131
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Road Use Agreement- Clarinaton Wind Farm Page 32
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Road Use Agreement- Clarinp;ton Wind Farm Page 133
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Road Use Agreement- Clarinaton Wind Farm Page 34
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Road Use Agreement- Clarington Wind Farm Page 135
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