HomeMy WebLinkAboutBy-law No. 2023-007THE CORPORATION OF THE MUNICIPALITY OF BAYHAM
BY-LAW NO. 202S.007
A BY-LAW TO AUTHORIZE THE EXECUTION OF A
MUNICIPAL ACCESS AGREEMENT BETWEEN
THE MUNICIPALITY OF BAYHAM AND TILLSONBURG HYDRO INC.
WHEREAS under the broad powers delegated under the Municipal Act, 2001, S.O. 2001,
c.25, as amended, a council is authorized to pass by-laws designating highways as controlled
access highways and prohibiting or regulating the construction or use of any access onto
highways;
AND WHEREAS the Council of the Corporation of the Municipality of Bayham is desirous of
entering into a municipal access agreement with Tillsonburg Hydro Inc. for the installation of
hydro infrastructure on Clearview Drive;
NOW THEREFORE THE COUNCIL OF THE CORPORATION OF THE MUNICIPALITY
OF BAYHAM ENACTS AS FOLLOWS:
THAT the Mayor and Clerk be and are hereby authorized to execute the Agreement
attached hereto as Schedule "A" and forming part of this by-law between the
Municipality of Bayham and Tillsonburg Hydro Inc.;
2. AND THAT this by-law shall come into full force and effect upon final passing.
READ A FIRST, SECOND AND THIRD TIME AND FINALLY PASSED THIS 19th DAY OF
JANUARY 2023.
MAYOR IT
R 1,?T
ROAD USER AGREEMENT
BETWEEN:
THE CORPORATION OF THE MUNICIPALITY OF BAYHAM
(hereafter the "Municipality")
TILLSONBURG HYDRO INC.
(hereafter the "Company")
WHEREAS:
Of the First Part
Of the Second Part
A. The Company is a qualified hydroelectric utility corporation incorporated pursuant to
the laws of the Province of Ontario that typically operates within the territorial limits
of the Town of Tillsonburg and surrounding area;
B. In order to provide high voltage electrical infrastructure to a certain property, located
at 14719 Bayham Drive, the Company requires the ability to lay, construct, supply,
maintain and repair certain cables (both overhead and buried), poles, ducts, conduits,
sectionalizers, switches, transformers and other necessary appurtenances thereto in the
right of way of Clearview Drive, being a highway under the jurisdiction of the
Municipality;
C. The Company has already laid and constructed the necessary cabling within the right
of way of Clearview Drive and as -built drawings are available at the time of execution
of this Agreement;
D. The Municipality is prepared to permit the Company to lay, construct, supply, maintain
and repair the necessary electrical infrastructure within the Municipality's rights of way
along Clearview Drive within the Municipality's territorial limits, on the terms and
conditions set out herein;
NOW THEREFORE in consideration of the mutual terms, conditions and covenants contained
herein, the Parties agree and covenant with each other as follows:
DEFINITIONS AND INTERPRETATION
t.l Definitions. In this Agreement, the following words and phrases shall have the following
meanings:
(a) "Affiliate" means "affiliate" as defined in the Canada Business Corporations Act or
Ontario Business Corporations Act, as may be applicable;
(b) "Anti -Bribery Law" means any anti -bribery law or international convention, as
may apply now or in the future, including the Canadian Corruption of Foreign
Public Officials Act, the O.S. Foreign Corrupt Practices Act, the U.K. Bribery Act
and the OECD Convention on Combating Bribery of Foreign Public Officials;
(c) "Emergency" means an unforeseen situation where immediate action must be
taken to preserve the environment, public health, safety or an essential service of
either of the Parties;
(d) "Equipment" means the transmission and distribution facilities owned by the
Company and/or its Affiliates, comprising electrical lines or other nature or form
of cables, conduits, poles, ducts, sectionalizers, switches, transformers and other
necessary appurtenances thereto and equipment located Within the ROWS,
(c) "Hazardous Substance" means any harmful substance including, without
limitation, electromagnetic or other radiation, contaminants, pollutants, dangerous
substances, dangerous goods and toxic substances, as detincd, judici y inlerprr[ed
lnrti
2
or identified in any applicable law (including the common law);
(f) "Municipal Consent" or "MU means the written consent of the Municipality,
with or without conditions, to allow the Company to perform Work Within the
ROWS that requires the excavation or breaking up of the ROWS (as more
particularly described in Schedule "A" to this Agreement);
(p� "Municipality Engineer" means the person or entity designated by the
Municipality to perform the duties, responsibilities and obligations of the
Municipality Engineer as set out herein;
(h) "Non -Compliant Equipment" means:
(i) For all Equipment installed on or after the Effective Date, Equipment that
is not compliant with the alignment approved by the Municipality because
the placement ofthe Equipment is greater than adistance of lm horizontally
or vertically from the location approved by the Municipality, and, the
placement of such Equipment has a material impact on the Municipality's
ability to manage or use its ROWS, or,
(ii) Equipment installed prior to the Effective Date of this Agreement is
assumed to be compliant. IIowever, Equipment installed prior to the
Effective Date may be deemed Non -Compliant by the Municipality if
unapproved deviations from the approved alignment have a material impact
on the Municipality's ability to manage or use its ROWS; or,
(iii) Equipment that is not compliant with other requirements of this Agreement.
(1} "Permit" means a Road Permit;
[�} "Relocation Notice" means a written notice given by the Municipality to the
Company identifying the specific location and reason for the relocation and directing
the Company to relocate the Equipment designated in the notice to another
reasonable location in the ROW(s).
(k) "Right of Way" or "ROW" or "ROWS" means, for the purpose of this Agreement,
the portion of Clearview Drive more particularly shown in Schedule "B" of this
Agreement;
(I) "Road Permit" means a Permit issued by the Municipality that, generally, is
required to authorize the Company to conduct Work that includes any activity that
involves a deployment of its workforce, vehicles and other equipment in the ROWS
which may interfere with the public use and enjoyment of the ROW for the duration
of the Work when performing the Work (as more particularly described in Schedule
"A" to this Agreement);
(m) "Term" means subject to the renewal options described in subparagraph 9.1(a) and
termination described in subparagraphs 9.2, 9.3 and 9.4, the Term of this
Agreement as commencing on the , day of _, 2023 and expiring and
terminating on the day of _, 2033,
0i) "Third Party" means any person that is not a party to this Agreement nor an
Affiliate of either Party, and includes any person that attaches its facilities in, on or
to the Equipment under an agreement with the Company;
(o) "Work" means, but is not limited to, any installation, removal, laying, construction,
maintenance, repair, replacement, relocation, removal, operation, use, adjustment
or other alteration of the Equipment performed by the Company Within the ROWS,
including the excavation, repair and restoration of the ROWS, in conformance with
drawings accepted by the Municipality.
1_2 Legislation. All references to statutes in this Agreement shall include amendments thereto,
regulations thereof, and successor legislation thereafter.
1.3 Recitals, Schedules and Incorporated Documents. The beginning part of this Agreement
entitled "Recitals", Schedule A" and Schedule "B" as identified below and the By-laws
and Municipal Policies referred to in this Agreement are hereby incorporated by reference
into this Agreement and form part thereof:
Init
Schedule "A" — Permits required by the Municipality
Schedule `B" — Bayham Dr 014719 — Premium Mulch Products — SHISH2 -
Approved
2. USE OF ROWS
2.1 Consent to use Clearview Drive ROW. The Municipality hereby consents to the
Company's use of the ROW for the purpose of performing its Work, subject to the terms
and conditions of this Agreement and in accordance with all applicable laws or other
municipal by-laws, rules, policies, standards and guidelines ("Municipal Guidelines")
pertaining to the Equipment andthe use ofthe ROWS. For clarity, at the time of execution
of this Agreement, the Company has completed placing the Equipment in the Clearview
Drive right-of-way in accordance with Schedule "B".
2.2 Restrictions on use. The Company shall not, in the exercise of its rights under this
Agreement, unduly interfere with municipal operations, equipment or installations andthe
public use and enjoyment of the ROWS, nor any rights or privileges previously conferred
or conferred after the Effective Date by the Municipality on Third Parties to use or access
the ROWS
2.3 Equipment acquired by the Company. The Parties agree that, where the Company
acquires, or has acquired, directly or indirectly, facilities from a Third Party that are located
Within the Clearview Drive ROW (the "New Equipment"), then, effective the day of the
acquisition of the New Equipment by the Company:
(ttj the New Equipment shall form part of the Equipment and shall be governed by the
terms and conditions of this Agreement; and
(b) where that Third Party is a Party to a valid and existing Road User Agreement with
the Municipality (the "RUA") and the Company, directly or indirectly, acquires the
rights and obligations under the said RIIA, the RUA shall be terminated.
2.4 No ownership rights. The Parties acknowledge and agree that:
(a) the use of the ROWS under this Agreement shall not create nor vest in the Company
any ownership or property rights in the ROWs; and
(bj the placement of the Equipment Within the ROWS shall not create or vest in the
Municipality any ownership or property rights to the Equipment.
2.5 Condition of ROWS. The Municipality makes no representations or warranties as to the
state of repair of the ROWS or the suitability or fitness of the ROWS for any business,
activity or purpose whatsoever, and the Company hereby agrees to accept the ROWS on an
"as is" basis.
2.6 Non -Compliant Equipment. The Municipality bears no liability or responsibility for
relocation costs of all of the following:
(a) Non -Compliant Equipment;
(b) Third Party equipment attached to the Company's Non -Compliant Equipment; and
(c) any damages, liabilities, re -design costs and associated delay costs incurred by
other occupiers of a Municipality ROW resulting from the Company's Non -
Compliant Equipment.
If the Municipality identifies the existence of Non -Compliant Equipment, the
Municipality will issue a Notice of Non -Compliance to the Company. If the Municipality
requires the Non -Compliant Equipment to be relocated, the Municipality will send a
Relocation Notice to the Company requesting relocation of the Non -Compliant
Equipment and the Company must relocate the Equipment as follows:
() above ground Equipment mist be relocated within 90 days of ks'e Company
Iniu,
receiving a Relocation Notice from the Municipality;
(1i) below ground Equipment must be relocated within 180 days of the Company
receiving a Relocation Notice from the Municipality, such Relocation Notice to be
issued by the Municipality only in the event the Municipality approves plans to re-
open the site where the Non -Compliant Equipment is located;
Prior to removal or relocation of Non -Compliant Equipment, the Company must obtain a
new alignment approval from the Municipality.
If the Company fails to remove or relocate Non -Compliant Equipment as a result of
receiving a Relocation Votice from the Municipality, the Municipality may, in its sole
and unfettered discretion, complete the removal or relocation and any associated
restoration and the Company must pay to the Municipality all reasonable and verifiable
costs related to the relocation and restoration.
3. APPLICABLE PERMITS
3.1 Permits.
(a) Subject to Section 3.2 and 3.4, the Company shall not occupy, excavate, break up,
disturb, or move oversized or overweight vehicles within the Clearview ROW,
where a Permit is required in accordance with this Agreement and Schedule "A",
without first obtaining, such Permit.
(b) For each Permit required above, where applicable, the Company shall submit to the
Municipality a completed application, in a form specified by the Municipality and
including all Security required under this Agreement.
3,2 No Permits for routine Work. Notwithstanding Section 3.1, the Company may, with
advance notice as required by the Municipality, without first obtaining aPermit:
(a) utilize existing ducts or similar structures of the Equipment with at least "verity -
four (24) hours advance notice to the Municipality; or,
(b) carry out routine maintenance and field testing to its Equipment
provided that in no case shall the Company break up or otherwise disturb the physical hard
surface of the ROW without the Municipality's prior written consent.
3.3 Expiry of Permit. In the event that the Company has not commenced construction of the
approved Work associated with a particular Permit within one (1) year of the date of
issuance of the Permit and has not sought and received an extension to the Permit from the
Municipality, which extension shall not be unreasonably withheld, the Permit shall be null
and void. In such circumstances, any fees paid by the Company in respect of the expired
Permit shall not be refunded and the Company must obtain a new Permit for the Work.
3.4 Submission of plans. Unless otherwise agreed to by the Municipality, the Company shall,
prior to undertaking any Work that requires a Permit, submit the following to the
Municipality Engineer:
(a) construction plans of the proposed Work, showing the locations of the proposed
and existing Equipment and other facilities, and specifying the boundaries of the
area within the Municipality within which the Work is proposed to take place;
(b) Traffic control plans for the protection of the workers, public and traveling public
including detours as required to minimize traffic disruption; and
(c) all other relevant plans, drawings and other information as may be normally
required by the Municipality Engineer from time to time for the purposes of issuing
Permits.
3,5 Refusal to issue Permits. The Municipality may refuse to issue a Permit in accordance
with Section 3.1 for any bonafide municipal purpose, including but not liniit reasons
of public safety and health, conflicts with existing infra,1RI ur ro 101 rotul
lisil '
construction, or the proper functioning of public services, all as identified in writing by the
Municipality, having regard to the public interest in having access to hydroelectricity. The
Municipality shall make good faith effort to provide consent to alternative suggestions,
wherever possible, for routing the Equipment Within the ROW to assist the Company in
its efforts to facilitate the installation of its Equipment.
3.6 Restoration of the Company's service during Emergencies. Notwithstanding Section
3.1, in the event of an Emergency, the Company shall be permitted to perform such
remedial Work as is reasonably necessary to restore its services without complying with
Section 3.1; provided that such Work does not unduly disrupt any Municipal service or
activity and provided that the Company does comply with Section 3.1 within five (5)
business days of completing the Work.
3.7 Temporary changes by Municipality. Notwithstanding any other provision in this
Agreement, the Municipality reserves the right to set, adjust or change the approved
schedule of Work by the Company for the purpose of coordinating or managing any major
events or activities, including the restriction of any Work during those restricted time
periods; provided however, that any such adjustment or change shall be conducted so as
minimize interruption to the Company's operations. The Municipality shall use its
commercially reasonable efforts to provide to the Company forty-eight (48) hours advance
written notice of any change to the approved schedule of Work, except that, in the case of
any Emergency, the Municipality shall provide such advance notice as is reasonably
possible in the circumstances.
4. NIANNER OF WORK
4.1 All Responsibility for Cost(s) Borne by Company. All responsibility, costs, liabilities,
fees and any other payment of any sum associated with any Work under this Agreement
shall be solely borne by the Company unless specified otherwise herein.
4.2 Compliance with Applicable Laws, etc. All Work shall be conducted and completed to
the satisfaction of the Municipality and in accordance with:
(a) the applicable laws (and, in particular, all laws and codes relating to occupational
health and safety);
(b) the Municipal Guidelines;
(c) this Agreement; and
(d) the applicable Permits issued under Section 3.1.
4.3 Underground Equipment. The Company shall place those portions of the Equipment that
cross beneath streets or existing buried utilities as specified by the Municipality, which
may include the requirement to place and locate the Equipment in c2sings or ducts.
-1.4 Installation. The Company shall utilize construction methods that minimize the impact on
the ROWS.
4.5 Stoppage of Work. The Municipality may order the stoppage of the Work for any bona
fide municipal purpose or cause relating to public health and safety, special events or any
circumstances beyond its control. In such circumstances, the Municipality shall provide the
Company with a verbal order and reasons to stop the Work and the Company shall cease
the Work immediately. Within two (2) business days of the verbal order, the Municipality
shall provide the Company with a written stop work order with reasons. When the reasons
for the Work stoppage have been resolved, the Municipality shall advise the Company
immediately that it can commence the Work.
4A Coordination of Work. To minimize the necessity for road cuts, construction and the
placement of new Equipment Within the ROW, the Company shall, where commercially
reasonable and technically practicable, coordinate its work with other existing and new
occupants of the ROW, if applicable.
17 Identification of contractors. The Company shall ensure that a�till
15 c facIni
proper identification visible on the Work site displaying the name of the Company for
which they work.
4-9 Emergency contact personnel. The Company and the Municipality shall provide to each
other a list of twenty-four (24) hour emergency contact personnel available at all times and
shall ensure that the list is kept current.
4,9 Emergency work by Municipality. In the event of an Emergency, the Municipality may
take such measures it deems necessary to re-establish a safe environment, and the
Company shall pay the Municipality's reasonable and verifiable costs that are directly
attributable to the Work or the presence of the Equipment in the ROWs.
4.10 "As -built" drawings. The Company shall, no later than ninety (90) days after completion
of any Work, or in the case of Equipment placed prior the execution of this Agreement,
within ninety (90) days of the execution of this Agreement, provide the Municipality
Engineer with accurate "as -built" drawings, prepared in accordance with such standards as
may be required by the Municipality Engineer, sufficient, for planning purposes, to
accurately establish the location of the Equipment installed Within the ROWS. As -built
drawings to be provided in electronic format suitable to be incorporated into the
Municipality's GIS mapping. As -built information is provided a reference only. The
Municipality shall direct all inquiries regarding the location of the Equipment to the
Company. Access to Company As -Built records are for use by the Municipality only and
shall not be distributed or disclosed to other parties without prior written consent of the
Company. If the Municipality has not received the As -built drawings from the Company
within 90 calendar days following the completion of the Work, the Equipment will be
considered to be Non -Compliant Equipment.
4.11 Agents and Sub -contractors. Each Party agrees to work with the other Party directly to
resolve any issues arising from any the acts, omissions or performance of its agents and
sub -contractors.
S. REMEDIAL WORK
5,1 General. Following the completion of any Work, the Company shall leave the ROW in a
neat, clean, and safe condition and free from nuisance, all to the satisfaction of the
Municipality. Subject to Section 5.5, where the Company is required to break or disturb
the surface of a ROW to perform its Work, it shall repair and restore the disturbed surface
of the ROW to the same or better condition it was in before the Work was undertaken, all
in accordance with the Municipal Guidelines and to the satisfaction of the Municipality.
5 2 Permanent Road Restoration. If the Company has excavated, broken up or otherwise
disturbed the surface of a ROW, the Company shall restore the ROW which the Company
has excavated, broken up or otherwise disturbed to a similar state that it was in prior to the
commencement of the Work.
5_3 Temporary repair. Where weather limitations or other external conditions beyond the
control of the Company do not permit it to complete a final repair to the ROW within the
expected period of time, the Company may complete a temporary repair to the ROW;
provided that, subject to Section 5.5, the Company replaces the temporary repair with a
final repair within a reasonable period of time. All repairs to the ROW by the Company
shall be performed in accordance with the Municipal Guidelines and to the satisfaction of
the Municipality.
If a temporary repair gives rise to an unsafe condition, then this shall be deemed to
constitute an Emergency and the provisions of Section 4.8 shall apply.
5A Warranty of repairs. The Company warrants its temporary repair, to the satisfaction of
the Municipality until such time as the final repair is completed by the Company, or, where
the Municipality is performing the final repair, for aperiod of one (1) years or until such
time as the final repair is completed by the Municipality, wilichevur is rlier, 4hr
Company shall warrant its final repairs for a period of two (2) yLtars. f to dale or 01cir
7
completion
5.5 Repairs completed by Municipality. Where:
(a) the Company fails to complete a temporary repair to the satisfaction of the
Municipality within seventy-two (72) hours of being notified in writing by the
Municipality, or such other period as may be agreed to by the Parties; or
0) the Company and the Municipality agree that the Municipality should perform the
repair,
then the Municipality may effect such work necessary to perform the repair and the
Company shall pay the Municipality's reasonable and verifiable direct costs of performing
the repair, which the Parties agree is permitted to include an administrative fee of fifteen
percent (15%) of the value of the material and labour costs of the repair(s).
6. LOCATING FACILITIES IN ROWS
6.1. Locates. The Company agrees that, throughout the Term it shall, at its own cost, record
and maintain adequate records of the locations of its Equipment. Each Party shall, at its
own cost and at the request of the other Party (or its contractors or authorized agents),
physically locate its respective facilities by marking the ROW using paint, staking or other
suitable identification method ("Locates"), under the following circumstances:
(a) in the event of an Emergency, within two hours of receiving the request or as soon
as practicably possible, following which the requesting Party will ensure that it has
a representative on site (or alternatively, provide a contact number for its
representative) to ensure that the area for the Locates is properly identified; and
(b) in all other circumstances, within a time reasonably agreed upon by the Parties.
6.2. Provision of Mark-ups. The Parties agree to respond within fifteen (15) days to any
request from the other Party for a mark-up of municipal infrastructure or Equipment design
drawings showing the location of any portion of the municipal infrastructure or Equipment,
as the case may be, located within the portion of the ROWs shown on the plans (the "Mark-
ups"), and shall provide such accurate and detailed information as may be reasonably
required by the requesting Party.
63, Inaccurate Locates. Where the Company's Locates are found to be in error, where the
actual location of the Equipment is found to be beyond I meter horizontally on either side
of the Locates, and, as a result, the Municipality is unable to install its facilities Within the
affected ROWS in the manner it expected based on the Locates provided by the Company
(the "Error"), the Municipality will notify the Company of the Error, following which the
Company shall attempt to resolve the Error. If the Company is unable to resolve the Error
in a reasonable time commensurate with the situation, the Company will pay the
Municipality for its reasonable and verifiable costs incurred as a direct result of the Error.
An Inaccurate Locate resulting from Equipment relocated due to ground movement
stemming from, among other things, weather conditions or work or activities carried out
by a Third Party, or by, or on behalf of, the Municipality, is not an Error. In the event of a
disagreement as to the existence of an Error with regard to buried Equipment, the parties
agree to work together to determine whether or not the Error stems from ground movement
or work or activities carried out by a Third Party, or by, or on behalf of, the Municipality.
If it is determined that the conditions of the municipal right-of-way have changed, the
parties agree to be reasonable, including with respect to the allocation of direct costs
stemming from the change.
7. RELOCATION OF EQUIPMENT
7.1 Municipality Request. Where the Municipality requires and requests the Company to
relocate its Equipment for a bona fide municipal purpose, the Municipality shall notify the
Company in writing and, the Company shall complete the mquested rel ion %vithin
IniCi �-
a
ninety (90) days, having regard to the nature of the relocation required, the Company shall
commence work to relocate its Equipment within a Right- of -Way.
7.2 Allocation of Cost. The responsibility for the costs incurred in relocating the Company's
Equipment or performing such work referenced, where the Municipality has made a request
to the Company to relocate its Equipment as set out above will, for the purposes of this
Agreement, be at the sole cost and responsibility of the Company.
7,3 Upon Request of the Company. In the event that the Company wishes to relocate
Equipment which has been previously installed in accordance with this Agreement at its
own expense, the Company shall notify the Municipality of such request, in writing, and
such request will thereafter be considered and administered by the Municipality acting
reasonably and with diligence giving due consideration to the scope of the works already
undertaken by the Company Within the ROWS, provided that, in considering and
administering such request the Municipality shall be entitled to take into consideration any
specific municipal or engineering interests affected by such relocation including any
additional facilities located Within the ROWS. Notwithstanding the foregoing, the
Municipality shall not be permitted to unreasonably withhold, delay or condition its
approval for such request.
7.4 Request by Third Party. Where relocation of Equipment is required due to the
Municipality accommodating a third party (hereinafter "Third Party Work"), the
required relocation or related installation work shall be conducted by the Company in
accordance with the terms of this Agreement respecting installation, and the full cost of the
amendment or Relocation shall be borne solely by the third party and paid in advance. The
Municipality agrees to provide the Company with ninety (90) days' notice of the need for
any such Third Party Work and to require that the relevant third party or parties bear the
full cost of such Third Party Work and indemnify the Company against all claims and
liabilities arising from the amendment or Relocation as a condition precedent to any such
amendment or Relocation.
73 Municipality efforts. Where any relocation of Equipment occurs, the Municipality will
make good faith efforts to provide alternative routes for the Equipment affected by the
relocation to ensure uninterrupted service to the Company's customers. Once the Company
has provided the Municipality with all information the Municipality requires to enable it to
process a Permit application, the Municipality shall provide, on a timely basis, all Permits
required to allow the Company to relocate the Equipment.
7.6 Temporary Reconstruction or Realignment of Road Allowances. The Company shall,
upon reasonable prior notice to the Municipality, have the right to:
(a) temporarily reconstruct or realign certain portions of the Road Allowances in order
to permit the delivery or movement of Equipment.
& PAYMENT OF FEES AND OTHER CHARGES
&I General. The Municipality generally does not apply fees to Permits required by utilities.
In the event the Company requires doing work that generates out-of-pocket expenses for
the Municipality through the retainer of third -parties for review of Works, at the
Municipality's discretion, the Company agrees to reimburse the Municipality for the actual
cost of such out-of-pocket expenses, without any addition of overhead or administrative
fees.
92 Fees. The Company covenants and agrees to pay to the Municipality applicable costs as set
out in section 8.1, ("Fees and Charges").
8A Invoices. Unless expressly provided elsewhere in this Agreement, where there are any
payments to be made tinder this Agreement, the Party requesting payment shall first send
a written invoice to the other Party, setting out in detail all amounts raving, i uding Uky
applicable provincial and federal taxes and interest payable on p64Pr ntic C intiiriCrs. and
Inili- .
the payment terms. The Parties agree that all payments shall be made in full by no later
than forty-five (45) days after the date of the invoice was received.
U Default. Any failure or refusal by the Company to pay any required Pee or Charge as set
out in Section 8.1 and 8.2., any cost required by this Agreement or deliver any Security
required under this Agreement within the timelines specified herein shall constitute a
default ("Default"). Upon the occurrence of a Default, the Municipality shall deliver a
Notice of Default in writing to the Company. The Company shall have thirty (30) days to
cure the Default (the "Cure Period"). In the event that the Default is not cured within the
Cure Period, then the Municipality shall have the right to draw upon the Blanket Security
described in section 10.7 of this Agreement.
8.3 Payment of taxes. The Company shall pay, and shall expressly indemnify and hold the
Municipality harmless from, all taxes lawfully imposed now or in the future by the
Municipality, a local municipality within the geographic jurisdiction of the Municipality,
or all taxes, rates, duties, levies or fees lawfully imposed now or in the future by any
regional, provincial, federal, parliamentary or other governmental body, corporate
authority, agency or commission (including, without limitation, school boards and utility
commissions) but excluding the Municipality, that are attributable to the Company's use
of a Municipality ROW.
91 TERM AND TERMINATION
9.1 Initial term and renewal. Subject to the renewal options described in subparagraph 9.1(a)
and termination described in subparagraphs 9.2, 9.3 and 9.4, the Term of this Agreement
shall commence on the day of , 2023 and expire and terminate due to expiry
Oil day of , 2033 (the "Initial Term").
(a) The Company in its sole discretion may renew this Agreement with the
Municipality for two (2) separate consecutive renewal terms of five (5) years each.
To exercise the first option to renew, the Company must provide the Municipality
written notice of such election to renew prior to the expiry of the Initial Term,
failing which the Agreement will terminate due to expiry. To exercise the second
option to renew, the Company must provide the Municipality written notice of such
election to renew prior to the expiry of the first valid five-year extension, failing
which the Agreement will terminate due to expiry. To exercise the third option to
renew, the Company must provide the Municipality written notice of such election
to renew prior to the expiry of the second valid five-year extension, failing which the
Agreement will terminate due to expiry.
(b) If a renewal is not exercised prior to the last day of the Initial Term or valid
extension, this Agreement shall terminate immediately on the last day of the Term
or valid extension, subject to paragraph 9.4 of this Agreement.
91 Termination by either Party. Either Party may terminate this Agreement withoutfurther
obligation to the other Party, upon providing at least seven (7) days' written notice in the
event of a material breach of this Agreement by the other Party after notice thereof and
failure of the other Party to remedy or cure the breach within thirty (30) days of receipt of
the notice. If, however, in the view of the non -breaching Party, it is not possible to remedy
or cure the breach within such thirty (30) day period, then the breaching Party shall
commence to remedy or cure the breach within such thirty (30) day period and shall
complete the remedy or cure within the time period stipulated in writing by the non -
breaching Party.
9.3 Termination by Municipality. The Municipality may terminate this Agreement by
providing the Company with at least seven (7) days written notice in the event that:
(a) the Company becomes insolvent, makes an assignment for the benefit of its
creditors, has a liquidator, receiver or trustee in bankruptcy appointed for it or
becomes voluntarily subject as a debtor to the provisions DC t ('r1,71,111ni8l
Creditors Arrangement Act or the Bankrupt(zy and Ins
nfr errs �
Irti '
(b) the Company assigns or transfers this Agreement or any part thereof other than in
accordance with Section 18.2, or
(c) the Company ceases to be eligible to operate as a hydroelectricity utility.
q.4 Obligations and rights upon termination or expiry of Agreement. Notwithstanding
any other provision of this Agreement, if this Agreement is terminated (other than in
accordance with Section 9.3) or expires without renewal, then unless the Company advises
the Municipality in writing that it no longer requires the use of the Equipment the terms
and conditions of this Agreement shall remain in full force and effect until a new
replacement agreement (a "New Agreement") is executed by the Parties, and, if the Parties
are unable to enter into a New Agreement then the Municipality may exercise any of its
rights with regard to the removal of abandoned equipment as set out in section 9.5.
9_5 Removing abandoned Equipment. Whore the Company advises the Municipality in
writing that it no longer requires the use of any Equipment, the Company shall, at the
Municipality's request and within a reasonable period of time as agreed to by the Parties,
act as follows at the Company's sole cost and expense:
(a) Remove the abandoned Equipment that is above ground;
(b) Subject to (c) immediately below, make safe any underground vaults, manholes and
any other underground structures that are not occupied or used by a Third Party,
(collectively "Abandoned Underground Structures");
(c) Where, in the reasonable opinion of the Municipality Engineer, the Abandoned
Underground Structures will interfere with any municipally -approved project that
will require excavation or otherwise disturb the portions of the ROWS in which the
Abandoned Underground Structures are located, then the Company shall, at oe
about the time the excavation of such portions of the ROWs for said project
commences, remove the Abandoned Underground Structures therein.
Upon removal of the abandoned Equipment or upon the removal or making safe of
Abandoned Underground Structures, the Company shall repair any damage resultingfrom
such removal or making safe and restore the affected ROWS to the condition in which they
existed prior to the removal or making safe. If the Company fails to remove Equipment or
to remove or make safe Abandoned Underground Structures and restore the ROWs within
the time specified above, and to the satisfaction of the Municipality Engineer, the
Municipality may complete said work and the Company shall pay the associated
Municipality's Costs.
9,6 Continuing obligations. Notwithstanding the expiry or earlier termination of this
Agreement, each Party shall continue to be liable to the other Party for all payments due
and obligations incurred hereunder prior to the date of such expiry or termination and
sections 9.4 and 9.5 shall survive such that the Municipality may exercise its rights with
regard to abandoned Equipment as if the Agreement was not terminated or expired.
10. INSURANCE AND SECURITY
10.1 General. Throughout the term of this Agreement and any renewals or extension thereto,
the Company shall maintain, at its sole expense, insurance (the "Company Insurance") in
an amount and description as described below to protect the Company and the Municipality
from claims for damages, bodily injury (including death) and property damage which may
arise from the Company's operations under this Agreement, including the use or
maintenance of the Equipment Within the ROWS or any act or omission of the Company
and its employees, contractors and agents while engaged in the Work. The Company
Insurance shall include all costs, charges and expenses reasonably incurred with any injury
or damage.
10.2 Commercial general liability occurrence -based insurance. Without limiting the
generality of the foregoing, the Company shall obtain and maintain commercial general
liability occurrence -based insurance coverage which:
(a) covers claims and expenses for liability for personal injury, bodily injury and
property damage in an amount not less than Five Million Dollars ($5,000,000.00)
per occurrence (exclusive of interest and costs);
(b) extends to cover the contractual obligations of the Company as stated within this
Agreement;
(c) include the Municipality as an additional insured;
(Q contains cross liability and severability of interest olauses.
103 Insurance certificates. As soon as possible after the execution of this Agreement, the
Company shall provide on the Municipality's standard form, the Municipality with
certificates of insurance in respect of the Company Insurance evidencing the cross liability
and severability clauses and confirming the Municipality as an "additional insured".
Thereafter, the Company shall provide the Municipality with evidence of all renewals of the
Company Insurance in a form acceptable to the Municipality.
10.4 General insurance conditions.
(u) The Company Insurance shall not be construed to, and shall in no manner, limit or
restrict the Company's liability or obligations under this Agreement.
IN The Municipality shall not be liable for any premiums relating to policies under the
Company Insurance.
(G) The policies under the Company Insurance shall provide:
(i) that they are primary insurance which will not call into contribution any
other insurance available to the Municipality;
(ii) a waiver for severability of interest; and
(iii) that the Company Insurance shall not be cancelled, lapsed or materially
changed to the detriment of the Municipality without at least thirty (30)
business days' notice to the Municipality by mail.
l41} The Company will immediately notify the Municipality of any changes to or
cancellation of the Company Insurance if they will directly affect or reduce the
coverage made available to the Municipality.
10.5 Workplace Safety and Insurance Board. The Company shall provide Workplace Safety
and Insurance Board ("WSIB)" clearance certificate that confirms the Company is in good
standing with the WSIB. The Company shall ensure the WSIB clearance remains in effect
when the Company's personnel are working within the ROWs.
10.6 Blanket Utterof Credit. Ifrequested bythe Municipality, the Company shall, within thirty
(30) days thereafter, post an irrevocable blanket letter of credit, for the minimum amount
of ten thousand dollars ($10,000.00) (the "Blanket Security"). Once posted by the
Company, the Municipality may draw upon the Blanket Security and apply the fiords therein
against any undisputed outstanding financial obligations owed by the Company to the
Municipality under this Agreement.
10.7 Blanket Security - Term. The Blanket Security, if requested, shall be posted for a
maximum of up to three (3) years and until such time as the Municipality determines that
the Company has established a satisfactory business relationship with the Municipality. If
the Municipality is required to draw upon the Blanket Security, the Municipality shall
advise the Company and the Company shall, within fourteen (14) days thereafter restore
the Blanket Security to its original value.
10.8 Project -specific Security. The Municipality may also reasonably request, and the
Company shall provide, additional project -specific securities for Work projects in an
amount equal to the estimated restoration costs of the projects as determined by the Parties.
The Municipality shall release the project -specific security once the C,om 'hay fu]filled
I ni
12
the conditions of the applicable Permit relating to the restoration of the ROW to the
satisfaction of the Municipality.
11. RESPONSIBILITY AND INDEMNIFICATION
11.1 No liability to the Municipality. The Company hereby acknowledges that the placement,
installation, construction, reconstruction, inspection, maintenance, operation, alteration,
enlarging, repair, replacement, relocation and/or removal of the Equipment by the
Company is performed entirely at the risk of the Company and that the Municipality shall
in no way or under any circumstances be responsible or liable to the Company, its
contractors, agents, or customers for any damage or losses in consequence thereof, unless
due to the negligence of the Municipality or those for whom at law it is responsible.
112 Company Indemnity. The Company hereby releases, indemnifies, completely holds
harmless, and agrees to defend the Municipality, its Councillors, officers, employees, legal
counsel, agents and contractors, from and against any and all suits, judgments, claims,
demands, expenses, actions, causes of action, duties, assessments, fees, penalties,
liabilities, losses and costs which the Municipality and its successors and assigns may at
any time or times hereafter bear, sustain, or suffer, as a result of the Equipment, including
without limitation, its placement, installation, construction, reconstruction, inspection,
maintenance, use, operation, alteration, enlarging, repair, replacement, relocation and/or
removal.
11.3 Municipality Acknowledgement. The Municipality hereby acknowledges that it is
responsible for its negligence and the negligence of those for whom it is responsible for at
law.
11.4 Municipality Indemnity.The Municipality hereby releases, indemnifies, completely holds
harmless, and agrees to defend the Company, its officers, employees, legal counsel, agents
and contractors, from and against any and all suits, judgments, claims, demands, expenses,
actions, causes of action, duties, assessments, fees, penalties, liabilities, losses and costs
which the Company and its successors and assigns may at any time or times hereafter bear,
sustain, suffer, be put to or incur by reason of its negligence and the negligence of those
for whom it is responsible at law.
11.5 No liability, both Parties. Notwithstanding any other provision in this Agreement, neither
Party shall be liable to any person in any way for special, incidental, indirect, consequential,
exemplary, or punitive damages, including damages for pure economic loss or failure to
realize expected profits, howsoever caused, or contributed to, in connection with this
Agreement and the performance or non-performance of its obligations hereunder
11.6 Survival. '!he obligation of a Party to indemnify, defend and save harmless the other Party
shall survive the termination or expiry of this Agreement.
12. ENVIRONMENTAL LIABILITY
121. Municipality not responsible. The Municipality is not responsible, either directly or
indirectly, for any damage to the natural environment or property, including any nuisance,
trespass, negligence, or injury to any person, howsoever caused, arising from the presence,
deposit, escape, discharge, leak, spill or release of any Hazardous Substance in connection
with the Company's occupation or use of the ROWS, unless such damage was caused
directly or indirectly by the negligence or willful misconduct of the Municipality or those
for which it is responsible in law.
122- Company to assume environmental liabilities. The Company agrees to assume all
environmental liabilities, claims, fines, penalties, obligations, costs or expenses whatsoever
relating to its use of the ROWs, including, without limitation, any liability for the clean-
up, removal or remediation of any Hazardous Substance on or under the ROWS that result
from:
(a) the occupation, operations or activities of the Company, its contractors, agents or
employees or by any person with the express or impliA Ccr000il or 4 Comp nt}
laiti ?��
13
Within the ROWs; or
(b) any Equipment brought or placed Within the ROWS by the Company, its
contractors, agents or employees or by any person with the express or implied
consent of the Company;
unless such damage was caused directly or indirectly in whole or in part by the negligence
or willful misconduct on the part of the Municipality or those for which it is responsible in
law.
The Municipality agrecs to provide notice to the Company of any liability arising under
this provision in a reasonable period of time after the occurrence. For clarity, the Company
shall not be liable in any manner for any events which occurred before the Equipment
occupied the ROW.
13. NO JOINT VENTURE, PARTNERSHIP OR CO -OWNERSHIP
13.1 No Joint Venture. The Parties hereby acknowledge and agree that this Agreement is solely
an access agreement and that no relationship is formed between the Parties in the nature of
a joint venture, partnership co -ownership arrangement or other similar relationship.
14. FORCE MAJEURE
14.1 Force Majeure. Except for the Parties' obligations to make payments to each other under
this Agreement, neither Party shall be liable for a delay in its performance or its failure to
perform hereunder due to causes beyond its reasonable control, including, but not limited
to, acts of God, fire, flood, or other catastrophes; government, legal or statutory restrictions
on forms of commercial activity; or order of any civil or military authority; national
emergencies, insurrections, riots or wars or strikes, lock -outs or work stoppages ("Force
Majeure"). In the event of any one or more of the foregoing occurrences, notice shall be
given by the Party unable to perform to the other Party and the Party unable to perform
shall be permitted to delay its performance for so long as the occurrence continues. Should
the suspension of obligations due to Force Majeure exceed two (2) months, either Party
may terminate this Agreement without liability upon delivery of notice to the other Party.
15. DISPUTE RESOLUTION
15.1 General. The Parties hereby acknowledge and agree that:
(a) this Agreement has been entered into voluntarily by the Parties with the intention
that is shall be final and binding on the Parties until it is terminated or expires in
accordance with its terms;
(b) it is the intention of the Parties that all Disputes (as defined in subsection 15.2) be
resolved in a fair, efficient, and timely manner without incurring undue expense;
and
15.2 Resolution of Disputes. The Parties will attempt to resolve any dispute, controversy, claim
or alleged breach arising out of or in connection with this Agreement ("Dispute") promptly
through discussions at the operational level. In the event a resolution is not achieved, the
disputing Party shall provide the other Party with written notice of the Dispute and the
Parties shall attempt to resolve such Dispute between senior officers who have the authority
to settle the Dispute. All negotiations conducted by such officers shall be confidential and
shall be treated as compromise and settlement negotiations. If the Parties fail to resolve the
Dispute within thirty (30) days of the non -disputing Party's receipt of written notice, the
Parties agree to utilize the services of a mutually agreed upon independent third party
mediator. 'flic mediator shall be knowledgeable regarding the area of the disputed issue.
The mediator shall meet with the Parties together or separately, as necessary, to review all
aspects of the issue. In a final attempt to assist the parties in resolving the issue themselves
prior to proceeding to legal proceedings, the mediator shall provide, without prejudice, a
non -binding written recommendation for settlement, within thirty { Oj day- if holding a
Initial
14
mediation. Upon receipt of the written settlement recommendation, if an agreement cannot
be reached, either Party may initiate legal proceedings_
15.3 Continued performance. Except where clearly prevented by the nature of the Dispute, the
Municipality and the Company agree to continue performing their respective obligations
under this Agreement while a Dispute is subject to the terms of this Section 15.
16. NOTICE
16.1 Method of Notice. Any notice required may be sufficiently given by personal deliveryor,
if other than the delivery of an original document, by facsimile transmission or electronic (e-
mail) transmission, to either Party at the following addresses:
To the Municipality:
The Corporation of the Municipality of Bayham
56169 Heritage Line, PO Box 160
Straffordville, ON, NOJ IY0
BayhamlBayham.on.ca
To the Company:
Tillsonburg Iydro Inc.
10 Lisgar Avenue
Tillsonburg, ON N4G 5A5
PQ Delivery of Notice. Any notice given pursuant to Section 16.1 shall be deemed to have
been received on the date on which it was delivered in person, or, if transmitted by facsimile
or electronic transmission during the regular business hours of the Party receiving the
notice, on the date it was transmitted, or, if transmitted by facsimile outside regular
business hours of the Party receiving the notice, on the next regular business day of the
Party receiving the notice; provided, however, that either Party may change its address
andlor facsimile number for purposes of receipt of any such communication by giving ten
(10) days' prior written notice of such change to the other Party in the manner described
above.
17. FOREIGN CORRUPT PRACTICES ACT AND ANTI -BRIBERY INDEMNITY
17.1 Notwithstanding anything to the contrary herein, the Municipality, in its administration of
this Agreement, shall refrain from offering, giving or promising, directly or indirectly,
money or anything of value to a Canadian or foreign governmental official to influence the
official in his or her official capacity, induce the official to do or omit to do an act in
violation of his or her lawful duty, or to secure any improper advantage in order to assist
in obtaining or retaining business for or with, or directing business to, any person. For the
purposes of this Section, "anything of value" includes, but is not limited to, cash or a cash
equivalent, discounts, gifts, use of materials, facilities or equipment, entertainment, drinks,
meals, transportation, lodging, insurance benefits, or promise of future employment.
"Governmental official" shall mean any person holding any level of legislative,
administrative, or judicial office of the Canadian or a foreign government or any of its
departments or agencies or divisions; any person acting on behalf of the Canadian or a
foreign government, including a local or provincial agency, enterprise, or organization; any
official or agent of a Canadian or a foreign public administration or publicly funded
organization; any official of a Canadian or a foreign political party; any officer or agent of
a public international organization (e.g., World Bank, International Monetary Fund, World
Health Organization, United Nations, World Trade Organization); or any relatives or close
familyJhousehold members of any of those listed above. The Municipality shall indemnify
and hold harmless the Company from all claims brought against the Company as a result of
the Municipality or its representatives' failure to comply with Anti -Bribery Law. The
Municipality shall immediately report any breach of Anti -Bribery Law by the Municipality
or its representatives. The Municipality shall immediately report any breach of Anti -
Bribery Law by the Municipality or its representatives'. The Company shall have the right to
audit the Municipality's books and records with respect to p:I4TFIOuZinadchill' of llrCompanyin the event that the Company believes that the Municilralily ISerEion 17
N
15
The Company shall have the rightto immediately terminate all payments to the Municipality under
this Agreement if the Municipality fails to comply with this Section 17,
18. GENERAL
18.1 Entire Agreement. This Agreement, together with the Schedules attached hereto,
constitute the complete and exclusive statement of the understandings between the Parties
with respect to the rights and obligations hereunder and supersedes all proposals and prior
agreements, oral or written, between the Parties.
1 &2 Assignment. This Agreement may not be assigned or transferred, in whole or in part,
without the prior written consent of the other Party. Notwithstanding the foregoing, the
Company shall, provided that it is not in material breach of this Agreement, have the right
to assign this Agreement to an Affiliate without the consent of the Municipality, provided
that the Company has given notice to the Municipality.
19.1 Gender and number. In this Agreement, words importing the singular include the plural
and vice versa, words importing gender, include all genders.
18.4 Currency. Unless otherwise indicated, references in this Agreement to money amounts are
to the lawful currency of Canada.
18.5 Parties to act reasonably. Each Party shall at all times act reasonably in the performance
of its obligations and the exercise of its rights and discretion under this Agreement.
18.6 Amendments. Except as expressly provided in this Agreement, no modification of or
amendment to this Agreement shall be effective unless agreed to in writing by the
Municipality and the Company.
18.7 Survival. The terms and conditions contained in this Agreement that by their sense and
context are intended to survive the performance thereof by the Parties hereto shall so
survive the completion of performance, the expiration and termination of this Agreement,
including, without limitation, provisions with respect to indemnification and the making of
any and all payments due hereunder.
18.8 Waiver. Failure by either Party to exercise any of its rights, powers or remedies hereunder
or its delay to do so shall not constitute a waiver of those rights, powers or remedies. The
single or partial exercise of a right, power or remedy shall not prevent its subsequent
exercise or the exercise of any other right, power or remedy.
18.9 Severability. If any provision of this Agreement is determined to be invalid or
unenforceable in whole or in part, such invalidity or unenforceability shall attach only to
such provision and everything else in this Agreement shall continue in full force and effect.
18.10 Enurement. This Agreement is and shall be binding upon and inure to the benefit of the
Parties hereto and their respective legal representatives, successors, and permitted assigns,
and may not be changed or modified except in writing, duly signed by the Parties hereto.
18.11 Counterparts: This Agreement may be executed by the Parties and delivered by facsimile
or PDF transmission and in one or more counterparts which when held together shall be
considered one and the same Agreement.
18.12 Equitable Relief. Either Party may, in addition to any other remedies it may have at law
or equity, seek equitable relief, including without limitation, injunctive relief, and specific
performance to enforce its rights or the other patty's obligations under this Agreement.
18.13 Governing law. This Agreement shall be governed by the laws of the Province of Ontario
and all fedoral laws of Canada applicable therein.
[ONE (1) ENDORSEMENT PAGE FOLLOWS]
Iniii;d _
Ib
IN WITNESS WHEREOF this Agreement has been executed by the Parties hereto on the date(s)
set out below and the Parties agree that this Agreement shall be effective on the date as set out at
the top of page one (1) of this Agreement.
SIGNED, SEALED AND DELIVERED CORPORATION OF THE
in the presence of: MUNICIPALITY OF BAYHAM
Date: .
:ffReAkAy'Ma-yor
, Chief Administrative Officer
We have the authority to hind the Corporation
SIGNED, SEALED AND DELIVERED TILLSONBI RG HYDRO INC.
in the presence of:
Date:
Nam,
Title:
Name:
Title:
YkVe have the authority to bind the Corporation
Initi
17
SCH€.DL'LE "A"
Road User Agreement
WORK ACTIVITY
RP
Notification
No Permit or
only
Notification
Road occupation that causes no disruption to traffic or
%
pedestrian flow to perform Work
Work that requires oversize or overweight vehicles
X
Road Occupancy that involves the temporary closure of a
K
vehicle travel lane, parking lane to perform Work
Emergency Work with no Excavation, no utilization of trees and
X
or other municipal infrastructure as a support structure
Any installation of Equipment that requires Excavation' in the
ROW, including:
— the installation of buried Equipment crossing a road;
— the installation of new Above -ground Plant;
— the relocation of buried Equipment or Above -ground
x
Equipment;
— the replacement of existing Above -ground Equipment with
equipment that is significantly larger; and
— the installation of buried Service Drops that cross a road or
a break a hard surface of the ROW.
The installation of aerial Equipment
H
Tree trimming on ROWs
M
The replacement of existing above -ground Equipment without
adding more Equipment or significantly increasing its size (pole
X
replacements excluded}
Pulling cable through existing underground duct
X
The installation of or repair to aerial service drops
X
The maintenance, testing and repair of Equipment where there
K
is minimal physical disturbance or changes to the ROW
Any other Work activity agreed to by the Municipality
X
initl � ' _ -
I!
ix
r� ■�1 ���la�li pd�l�l�l�� �W�'' !�i
a :� a at RSRfrtRR RR�e� �Rsa oexs, !; g
1 1 �I�IIIIlI
X}O• • Y•o. •1��9���� i I111 I111 � ` �e��i Xy
L ' I
I �I LL ``�'' S ail 11
jIi451i4hW
'
a
W
-�1
U
L h
ikf� `-jI 1II
t.
o
1
{{j
\
I i
I I
S
I
I
GGGG I
: I
I
1
------ ._
P
�
L
1
' r
I
Ik
1
1
M1 '-M1
I
t11
�
I
I
F
W
L
lu I
I
'
_
I
' I
�
{
I
A
f
I
t,
I�
I
rz
'I
I�I
I
I
I
I
r,
1
I
#I
al
�I
I
�F
0.11 T m
OYYy Of
r 2; Q
m
a� o-oti
aoa� a�za�..m
4r^Iwo
�Qai U�Z' Ling:]
� o
1.
U
' `l
� �4.tl �FIs���sRR�r�R� ov
i Msti-i
co
CD
N
gPHg�
Mill
$3s
4$ a�axl;A
4i
l33SS8zSEY�q
W
I
o
Q�
o �
; z
jd
m c
pi
Ira
��