2. The Mayor and Clerk are authorized to execute such Crossing

Transcription

1 BY-LAW NUMBER a OF 2002 OF THE CTY OF SARNA "A By-Law to Authorize an Agreement with TransAlta Energy Corporation" WHEREAS it is deemed expedient that The Corporation of the City of Sarnia enter into an Agreement with TransAlta Energy Corporation. of the City of Samia enacts as follows: NOW THEREFORE the Municipal Council of The Corporation 1. The Corporation of the City of Sarnia is authorized to enter into a Crossing Agreement with TransAlta Energy Corporation, in the form of the Crossing Agreement a copy of which is annexed to this By-Law. 2. The Mayor and Clerk are authorized to execute such Crossing Agreement and to affix to it the Corporate Seal of The Corporation of the City of Sarnia. 3. This By-Law comes into force and effect upon being finally passed. FN ALL Y PASSED this J S'~day of,2002. Doc D\MY DOCl MENTS\:lY -LA W\WORKNGTRANSAL TA CROSSNG AGT.AD (0#9)

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3 CROSSNG AGREEMENT THS AGREEMENT made in duplicate this 12th day of February, 2002 BETWEEN: THE CORPORATON OF THE CTY OF SARNA (hereinafter called the "City") AND TRANSALTA ENERGY CORPORATON (hereinafter called the "Company") WHEREAS the Company has requested that the City authorize it to undertake the Works as hereafter defined over the lands identified in red on Schedule "A" and labeled as Sites 1 through 6 inclusive (hereinafter collectively known as the "Sites"); and WHEREAS the City and the Company wish to enter into this agreement to provide for the laying down, construction, installation, enlargement, operation, renewal, maintenance, inspection, removal, repair and replacement of crossings by power, communications or other lines owned or operated by the Company and structures incidental hereto (hereinafter singularly and collectively known as the "Works") over the Sites. NOW THEREFORE THS AGREEMENT WTNESSETH THAT in consideration of the execution of this Agreement and in consideration of the terms, conditions, covenants and provisos in this Agreement, the parties agree as follows: 1. Easement and Right Of Way ]. The City grants to the Company an easement and right-of-way to install supporting structures in, on and under those portions of the Sites identified in red on Schedule B and to occupy the area of space over the Sites for the purposes hereafter set out. The elevation of the power lines authorized to be installed by this Agreement shall be no less than 1 meters above ground level and no more than 50 meters above ground level. The Company and the agents and employees of the Company shall have the right to enter upon each Site subject to the notice provisions contained in sub-section 3.2 of this Agreement at such times as may be necessary in connection with the Works. Persons entering upon a Site on the authority of the Company pursuant to this Agreement shall assume all risks of and the City shall not be liable for any injury (including injury resulting in death), loss, damage or expense to such person or his property while on a Site, unless caused by the negligence or willful misconduct of the City or its servants, agents or employees. 2. Standards and Technical Design 2. The Company shall be responsible for the design of the Works and agrees to provide the City Engineer with drawings prepared by a Certified Engineer and further agrees to construct the Works in accordance therewith and to maintain the Works to a reasonable and safe standard. 2.2 The City agrees that it will not excavate within a distance of three meters of the outside diameter of any structure (the "Minimum Distance") other than in accordance with the standards set forth in subsection 2.3 (the "Minimum Standards"). f the watermain adjacent to Structure 7B requires repairs or maintenance within the Minimum Distance which cannot be undertaken in accordance with the Minimum Standards, the City agrees to relocate such watermain such that at no point will it come within the Minimum Distance of any structure. The Company agrees to reimburse the City for the cost of relocating such watermain to a maximum of Forty Thousand Dollars ($40,000) adjusted for inflation for years following 2001 based upon Table Price indexes of non-residential building construction, by class of structure, quarterly (1992= 100) for Toronto for Total, Non-residential Building Construction as published by Statistics Canada. 2.3 Except in the case of an emergency, the City will provide the Company with at least forty-eight (48) hours notice of its intention to excavate with in the Minimum Distance. Any excavation within the

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5 Minimum Distance shall be undertaken to a maximum depth of 1.8 meters below grade and such excavation shall not involve the use of power tools. Such excavation shall not be performed if ice has accumulated on the conductors or shield wires, heavy wind conditions exist or the temperature is below minus 25 degrees Celsius. The exposed undisturbed soil resulting from such excavation shall be protected from weather deterioration. The exposed portion of the structure resulting from such excavation shall be limited to a radius of not more than 180 degrees and shall not be exposed for a period of more than 2 days. The backfill shall be compacted in layers without exerting any additional load to the structure, such compaction to be the same as or better than the original soil. 2.4 The Company agrees to install and maintain guard rails at its sole cost and expense where required to do so under the regulations or policies of the relevant provincial regulatory authorities. 3. Supervision of the Works 3.1 The Works shall be carried out by the Company at the Company's sole risk, cost and expense, in accordance with good engineering practices. 3.2 The Company shall give to the City at least twenty-four (24) hours notice in writing of its intention to commence any work at a Site. When the Works have been completed, the Sites shall be restored by the Company as much as is reasonably possible to its former condition and the Company shall at all times maintain the Works in good order and condition to the satisfaction of the City Engineer, acting reasonably. The written notice provision is not applicable in an emergency situation. n an emergency, the Company shall immediately inform the offices of the City. 3.3 The Company agrees to comply with all municipal, provincial and federal regulations applicable to the Works. 3.4 Following the abandonment of any Site by the Company, the Company shall restore the surface of the Site as much as is reasonably possible, to its original state and condition and properly abandon the Works. 4. Ownership of Works 4.1 All property placed or operated on the Sites by or on behalf of the Company shall, at all times, remain the personal property of the Company even though attached to the Sites. 5. Annual Fee 5.1 The Company shall pay to the City the initial sum of ONE THOUSAND AND FFTY DOLLARS ($1,050.00) upon the execution of this Agreement. 5.2 The Company shall pay to the City as compensation for the easement and right of way hereby granted, the total sum of SX THOUSAND DOLLARS ($6,000) being the sum of ONE THOUSAND FVE HUNDRED DOLLARS ($1,500) per year, for each of Sites 1,2,3 and 4, paid annually in advance on the first day of January in each year; provided that the said annual charge shall be reviewed by the City Engineer prior to each 10 th anniversary of the date hereof and the annual charge shall be adjusted on each such anniversary date to reflect the then prevailing market value of the lands affected. Failing agreement on the adjustment, the matter may be referred by either party to arbitration in accordance with the provisions of the Arbitration Act, No fee shall be payable in respect of Sites 5 and 6 unless and until such time as Site 5 and/or Site 6 are dedicated as public highway under the Municipal Act and are actually used as such, at which time the annual per Site fee set out in Section 5.2 shall be payable in respect of the Site or Sites so dedicated and used as a public highway. 5.4 The Company shall pay to the City interest at the rate of 18% per annum compounded monthly (1.5%) per month, on any amount not paid as and when due hereunder until paid. 6. Term and Termination 6.1 The term of the Agreement and the rights granted hereunder shall commence on the date hereof and shall expire contemporaneously with the expiry of the last of the Company's interests described in section 7 hereof. 2

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7 7. nterest in Land 7. This Agreement is and shall be the same force and effect as a covenant running with the Sites and all of the covenants and conditions contained herein, shall extend, be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. The grant of easement and rightof-way hereunder is hereby declared to be appurtenant to and for the benefit of certain lands located in the City of Sarnia in the County of Lambton and Province of Ontario and being composed of parts of River Lot Numbers 22 and 23 as shown on Registered Plan Number 122, more particularly described as Parts and 2 on Reference Plan 25R-8239 in the Registry Office. The Company shall be entitled, at its cost and expense, to register this Agreement or a Notice in respect thereof and any required Reference Plans in the Land Registry Office at Sarnia, Ontario and the City agrees to execute, at no cost to the Company, all necessary instruments, plans and documentation for that purpose. The parties hereto shall amend this Crossing Agreement or take such other steps as may be necessary to more accurately describe the Sites to facilitate such registration. 8. ndemnity 8.1 The Company shall indemnify and save harmless the City from all claims, demands, actions, suits or other proceedings made, brought or prosecuted by third parties against the City for losses, damages or injuries resulting from the exercise by the Company of its rights under this Agreement, unless caused by the negligence or willful misconduct of the City, or its servants, agents or employees. 8.2 Notwithstanding anything to the contrary other than subsection 8.1, in no event, including negligence of a party hereto, shall either party hereto or their respective agents or employees be liable to the other party hereto for any damage, injury or loss of an indirect or consequential nature which is in any way connected with the performance or non-performance of this Agreement, howsoever and whensoever caused, and whether arising in contract or not; and without limiting the generality of the foregoing, damage, injury, or loss of an indirect or consequential nature shall include loss of revenue, loss of profit, cost of capital and loss of use of any facility or property owned, operated or used by any person. 9. Notices 9.1 That any notice, request, demand or other document required or permitted under this Agreement shall be in writing and shall be deemed to have been duly given if personally delivered or sent by prepaid registered mail or if transmitted by a form of recorded electronic communication, to the City: to the Company: Corporation of the City of Sarnia 255 N. Christina St., P.O. Box 3018 Sarnia, Ontario N7T 7N2 Attention: City Clerk Fax: (519) TransAlta Energy Corporation Sarnia Regional Cogeneration Project 1741 River Road Sarnia, Ontario N7T 8Rl Attention: Director of Plant Operations Fax: (519) and to: TransAlta Energy Corporation Avenue S.W. Calgary, Alberta T2R 007 Attention: Corporate Secretary Fax: (403) Either party may change its address on written notice to the other party. 9.3 Any writing given in this manner set out above shall be deemed given if and when personally delivered or if mailed in the manner therein provided shall be deemed given five (5) business days after posting. Any notice transmitted by a form of recorded electronic communications shall be deemed given and received on the date of transmission if received during normal business hours of the recipient and on 3

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9 the first business day after its transmission if is received after the end of normal business hours on the date of its transmission. 9.4 n the event of disruption or threatened disruption of regulation mail services by strike or threatened strike, all such notices, request, and other communications shall be deemed to have been duly given only if personally delivered in the manner provided above or sent by recorded electronic communication. 10. Entire Agreement 10.1 The terms of this Agreement constitute the entire agreement between the City and the Company and no implied covenant or liability of any kind is created or shall arise by reason hereof or anything contained herein. This Agreement supersedes and replaces all previous oral or written agreements, memoranda, correspondence or other communications between the City and the Company relating to the subject matter hereof. 1 ]. Assignment 11.1 The Company shall not assign, transfer or dispose of this Agreement or of the rights and privileges conferred thereby without the consent in writing, first obtained, of the City, which consent shall not be unreasonably withheld. 12. Further Assurances 12.1 Each of the parties hereto shall do all such further acts and things and shall execute and deliver all such further writings and assurance as may be reasonably required in order to give full effect to this Agreement. 13. Enurement 13.1 This Agreement shall enure to the benefit of and shall be binding upon all the parties hereto, their respective heirs, executors, administrators, successors and assigns. 14. Severability 14.1 f any provision hereof becomes illegal or unenforceable, the provision will be deemed to be severed and the Agreement shall continue as amended. N WTNESS WHEREOF the parties hereto have executed this Agreement by duly authorized officers on the date first above mentioned. THE CORPORATON OF THE CTY OF SARNA Per: TRANSALTA ENERGY CORPORATON Per: 4

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11 Schedule" A" PLAN SHOWNG PROPOSED EASEMENTS FOR ~ TRANSALTA SARNA REGONAL COGENERATON PROJECT CTY OF SARNA T COUNTY OF LAMBTON MONTETH & SUTHERLAND LMTED ROYAL POLYMERS LTD. OL SUB-STATON MPERAL OL LMTED?t'drte OSTANCES SHOWN ON THS PlAN ARE N UETRES ANO CAN BE CONVERTED TO FEET BY OMDNG BY BAYER NC. Oly(; 1'S, C0.o>1\( ',yc -1-(,1''1') C"/\( "10,,/ ;. 'vc: J' Sl',y(,<)- o.,?,\rf1 CABOT CANADA L TO. ~ NOT TO SCALE PLAN NO. BAYER NC.,~~:~> /// // /;,/'/? / /// / // COMPLED PLAN NO. 725 ::::=:=::::::;; ~~~-:..., ~"'" BAYER NC. ~~w~j~r) ~-':;;::;:::::::~~~ <;i z o ~ z " ~,/// / // /l l,l /,/ /,/ // / /,l / j/ & :if '<' o ~ rv' " '' '{~<q e>o.,! ~// //...'... '-""',// '......, ~ ',(o!' t ""'...,- Q',S lof:~z, /, '~', " """ i$' DOW 1S;,EMCAl CANADA NC,,~' ~')...,... <t-..., <0,. 'h, fi l "... (~i.6' il',., ~:t""" """' '3'-... f! ~... J ",_... <:)...,' '44 m (30') DOW CH[MCAi'::'~UNCOR ::: /.>-.._ '-"'"... (, ~831 CANADA. NC (NOW BAYER) ACcess R' 0 ~ / / l... :'......:..) / ,l>t...tSO') DOW CHEMCAL. SUNCOR,.../ ,..,:~...!... 't..:.j~' canj;.~ NC (NOW SAYER) ROW ~','[ m (10') '! f :...!?';l::' 0-<-- ',1 ttl!--.~ ~ 1/ "<:::::,..., "... ''-'... ~ l'~~~ """""'...,- Yl/ / "'......, "'~"... ~o,. UN!O'N'~ LTD EASEMENT V J -... ""'... ( "if... DOW CHEM~~~:l-..J'N.....'...,_... 6,096 m (20') SUNCOR EASEMOO 0J'i ' ''-'" / """ ~-~, Srr's<rAlL ", ~fft.\.nc l16.j1~~t LOT RANGE REGSTERED PLAN DOW CHEMCAL CANADA NC m (10') 8P EASEMENT m (5') BP EASEMENT NO. 122 o ::; ~ LOT CANADA LTD. HGHWAY 40 SARNA NDAN RESERVE ONTARO HYDRO ~ NOT TO SCALE,l z~~ SUNOCO NC. SARNA NDAN RESERVE (CEMETERY) ~ Transt\lta / Samia. Ontario N7T 5W3 Tel,: (519) Fax: (519)

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13 Schedule "B",'/ ~v L (~~.;,,>,/,,;;J' ~,!:,. ""\;'-.-'/~ 'fl ij\;w r ~/-h\ ~+.'q', \, (Z').l LEEGEND: STRUCTURE HEGHTS & WRE CLEARENCES: NOTES: UTLTES & UNDERGROUND SERVCES: MTO BARRER PROTECTON: TRANSALTA TRANSMSSON LNE VDAL STREET DETA CTY OF SARNA COUNTY OF LAMBTON :Nt: T 13:1:> WebSkwww.-... _Land~ _~. Aeria~ MJippiog

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15 ;< BY-LA W NUMBER OF THE CTY OF SARNA OF 2002 "A By-Law to Authorize an Agreement with TransAlta Energy Corporation" READNGS: FRST: SECOND: THRD: /:)zb. l6'j Qll:DQ~ THE CORPORATON OF THE CTY OF SARNA LEGAL SERVCES (APP/ad) City Hall Samia, Ontario N7T 7N2

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17 DEPARTMENT CORRESPONDENCE People Serving People DATE: February FLE: TO: Ann Tuplin City Manager FROM: Alex P. Palimaka City Solicitor RE: By-Law to Authorize an Agreement with TransAlta Energy Corporation Sarnia City Council, at its meeting held on December adopted the following resolution: "THAT Sarnia City Council approve in principle the Road Crossing Agreement with TransAlta Energy Corporation as attached to the report of the City Solicitor dated December " Accordingly, please find attached. in duplicate. "A By-Law to Authorize an Agreement with TransAlta Energy Corporation", together with four copies of a Crossing Agreement for execution by the Mayor and Clerk. Council's approval is respectfully requested. After execution. please return one certified copy of the by-law along with all four copies of the Crossing Agreement to this department to be forwarded to TransAlta for their execution. lad Attach. c.c. T. Coyle Doc D MY [XX'UMENTSWP:J\XS FEB2 0J AD2

18 V(~) BY -LA W NUMBER OF 2002 OF THE CTY OF SARNA "A By-Law to Authorize an Agreement with TransAta Energy Corporation" WHEREAS it is deemed expedient that The Corporation of the City of Sarnia enter into an Agreement with TransAlta Energy Corporation. of the City of Samia enacts as follows: NOW THEREFORE the Municipal Council of The Corporation 1. The Corporation of the City of Samia is authorized to enter into a Crossing Agreement with TransAlta Energy Corporation, in the fom1 of the Crossing Agreement a copy of which is annexed to this By-Law. 2. The Mayor and Clerk are authorized to execute such Crossing Agreement and to affix to it the Corporate Seal of The Corporation of the City of Sarnia. 3. This By-Law comes into force and effect upon being finally passed. FNALLY PASSED this day of,20()2. Mayor Clerk Doc. D:\MY DOCUMENTS\BY LAW\WORKNU\TRANSALTA CROSSNG AGT AD D#9)

19 DEPARTMENT CORRESPONDENCE People Serving People Alex Palimaka City Solicitor FROM: FLE: DATE: RE: Evelyn Laird Clerk's Office February 19 t \ 2002 TransAlta Energy Corporation Road Crossing Agreement Attached is a copy as well as a certified copy of By-Law 21 of 2002, being ita By Law to Authorize an Agreement with TransAlta Energy Corporation", which was passed by Samia City Council at its meeting held February 18 1 \ 2002, together with all four copies of the Crossing Agreement. c.c. T. Coyle

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