HomeMy WebLinkAbout22 129 Bruce Power Water Environmental Assessment Agreement By-lawTHE CORPORATION OF THE MUNICIPALITY OF KINCARDINE
BY-LAW
NO. 2022 - 129
BEING A BY-LAW TO AUTHORIZE THE SIGNING OF AN AGREEMENT WITH
BRUCE POWER L.P. FOR THE COMPLETION OF A SCHEDULE CLASS C
ENVIRONMENTAL ASSESSMENT (EA) FOR THE PROVISION OF WATER
AND WASTEWATER SERVICES TO BRUCE NUCLEAR GENERATING PLANT
WHEREAS pursuant to the said Municipal Act, Section 8 (1) and 9 provide that
the powers of a municipality under this or any other Act shall be interpreted
broadly so as to confer broad authority on the municipality to enable the
municipality to govern its affairs as it considers appropriate and to enhance the
municipality’s ability to respond to municipal issues and has the capacity, rights,
powers and privileges of a natural person for the purpose of exercising its
authority under this or any other Act;
AND WHEREAS the Municipality passed By-law No. 2017 – 124 to enter into an
agreement for assessment services regarding the feasibility of providing water
and wastewater services to Bruce Nuclear Generating Plant;
AND WHEREAS the Municipality deems it advisable to enter into an agreement
with Bruce Power L.P. to undertake the next phase of the project which is the
completion of a Schedule C Class Environmental Assessment (EA) as per Report
Environmental Services 2022-10;
NOW THEREFORE the Council of The Corporation of the Municipality of
Kincardine ENACTS as follows:
1. That the Council of The Corporation of the Municipality of Kincardine enter
into an agreement with Bruce Power L.P., attached hereto as Schedule ‘A’
and forming part of this by-law.
2. That the Mayor and Chief Administrative Officer be hereby authorized to
execute, on behalf of The Corporation of the Municipality of Kincardine, the
agreement and any other documents required.
3. This by-law shall come into full force and effect upon its final passage.
4. This by-law may be cited as the “Bruce Power Water Environmental
Assessment Agreement By-law”.
READ a FIRST and SECOND TIME this 11th day of July, 2022.
READ a THIRD TIME and FINALLY PASSED this 11th day of July, 2022.
Mayor Deputy Clerk
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Bruce P w r-
Innovation at work
June 22, 2022
The Municipality of Kincardine
1475 Concession 5, RR5
Kincardine, ON N2Z 2X6
Attention: Ms. Roxana Baumann, Chief Administrative Officer
Recitals:
A. Bruce Power L.P.and the Municipality of Kincardine (the"Municipality") entered
into an agreement effective August 31, 2017, (the "Original Agreement")
pursuant to which the Municipality completed a portion of the work necessary to
assess (the "Assessment") the feasibility of the Municipality providing water and
wastewater services (the "Water Services") to the Bruce Nuclear Generating
Station with Bruce Power funding certain of the Municipality's consultant costs
associated with the Assessment.
B. Bruce Power and the Municipality are entering into this Agreement in order for
the Municipality to undertake the next phase of the work for the potential Water
Services.
C. Bruce Power has required that the Municipality retain the same Consultants
Stantec Consulting Ltd ("Stantec") and B. M. Ross and Associates Limited
("BMROSS") used in the first phase for the next phase of the work(the work to be
performed by Stantec in the second phase is referred to as the "Stantec Work",the
work to be performed by BMROSS is referred to as the "BMROSS Work"and,
collectively the BMROSS Work and the Stantec Work is referred to as the "Work").
D. In accordance with such Bruce Power requirement,the Municipality has retained,
or will retain,Stantec to perform the Stantec Work which includes the completion
of a Schedule C Class Environmental Assessment for the Kincardine Water Supply
System in accordance with the Municipal Class Environmental Assessment
Planning and all of the work specified in Stantec's Work Plan and Budget dated
June 6,2022 (the "Work Plan") attached as Exhibit 1 to this Agreement.
E. In accordance with such Bruce Power requirement,the Municipality has retained,
or will retain,BMROSS to perform the BMROSS Work which includes: 1.providing
projected water demand information for system requirements beyond Bruce
Power servicing; 2.work related to a potential servicing agreement between the
Municipality and Bruce Power; 3. review of Stantec documents;4.attendance at
routine meetings with the Municipality,Bruce Power and Stantec;and 5.
attendance at public meetings.
Bruce Power,
Telephone 519-361-2673
www.brucepower.com
F. Bruce Power has agreed fund the actual cost the Municipality incurs for i.Stantec
to perform the Stantec Work,and ii. BMROSS to perform the BMROSS Work,all on
the following terms.
Ladies and Gentlemen:
This letter agreement(the "Agreement") is made effective as of the 22nd day of June, 2022 (the
"Effective Date") between Bruce Power and the Municipality (collectively, the "Parties" and
individually, a"Party").
This Agreement sets out the terms for Work to be performed by the Municipality and its
subcontractors, Stantec and BMROSS, and the reimbursement by Bruce Power of the costs
incurred by the Municipality for the services of Stantec and BMROSS.
Scope of Work&Schedule
The Municipality agrees that it shall cause Stantec to complete the Stantec Work including the
work specified in the Work Plan using reasonable efforts to complete the Stantec Work in
accordance with the work schedule that is specified in the Work Plan.
Provided that there is no incremental cost above the Stantec Cap, Bruce Power agrees that
Stantec and the Municipality shall be permitted to, acting reasonably, make non-material
changes to the scope of the Stantec Work, including to complete such other work that is
necessarily ancillary to the Stantec Work, as Stantec and the Municipality determine is
necessary. The Municipality shall not permit Stantec to proceed with any changes in the scope
of Stantec Work that would result in an increase in the Stantec Cap or that would otherwise
constitute a material change in the Stantec Work unless it has received Bruce Power's prior
written approval for such change in the Stantec Work.
The Municipality agrees that it shall cause BMROSS to complete the BMROSS Work using
reasonable efforts to complete the BMROSS Work in accordance with a work schedule that
supports the deliverables and timeline in the Stantec Work Plan.
Provided that there is no incremental cost above the BMROSS Cap, Bruce Power agrees that
BMROSS and the Municipality shall be permitted to, acting reasonably, make non-material
changes to the scope of the BMROSS Work, including to complete such other work that is
necessarily ancillary to the BMROSS Work, as BMROSS and the Municipality determine is
necessary. The Municipality shall not permit BMROSS to proceed with any changes in the scope
of Work that would result in an increase in the BMROSS Cap or that would otherwise constitute
a material change in the BMROSS Work unless it has received Bruce Power's prior written
approval for such change in the BMROSS Work.
Reimbursement
Municipality agrees that the Stantec Work shall be performed at a cost that shall not exceed, in
the aggregate, $444,914.22 (plus HST) (the "Stantec Cap", as may be amended by the written
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agreement of the parties). Unless otherwise agreed in writing, Bruce Power shall not be liable
for the cost of any Stantec Work in excess of the Stantec Cap.
Municipality agrees that the BMROSS Work shall be performed at a cost that shall not exceed, in
the aggregate, $100,000 (plus HST) (the "BMROSS Cap", as may be amended by the written
agreement of the parties). Unless otherwise agreed in writing, Bruce Power shall not be liable
for the cost of any BMROSS Work in excess of the BMROSS Cap.
The aggregate of the Stantec Cap and the BMROSS Cap of$544,914.22 (plus HST) is referred to
in this Agreement as the Cap.
Bruce Power shall reimburse Municipality for the reasonable subcontractor costs of BMROSS
and Stantec for expenses actually incurred by Municipality during the Term of this Agreement
in connection with the Work up to an aggregate of the Cap all in accordance with the terms and
conditions of this Agreement. Unless otherwise agreed in writing, Bruce Power shall not be
liable for any amount in excess of the Cap.
Additional Terms
The Parties agree to comply with the terms set out in Schedule A of this Agreement.
-balance of page intentionally blank-
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date first
set forth above.
BRUCE POWER L.P.BY ITS GENERAL PARTNER BRUCE POWER INC.
By: , ,
Name: Kevin Kelly
Title EVP,Finance&Business Development and CFO
d Brian Hilbers
2022.07.07 15:09:57
By: 04'00'
Brian Hilbers BRUCE POWER
Name: LAW DIVISION
Name:LA
Vice President, Strategy&Chief Legal and Risk Date:July 7,
Title Officer 2022
THE MUNICIPALITY OF KINCARDINE
Gerr Glovero ,s Pii' I'N°'�l
By: Iy.�11—'fi00,0,�Oee�a�_
Name: Gerry Glover
Title Mayor
Roxana Baumann IIII III kiiA°1h10iiwu
S,g,,d with C.,sig,0 C-d(222/-25)IIII
Name: Roxana Baumann
Title Chief Administrative Officer
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SCHEDULE A-TERMS AND CONDITIONS
1. Term & Termination. The term (the "Term") of this Agreement commences on the
Effective Date and ends on the earlier of:
a. the completion of the Work; and
b. the issuance by Bruce Power of notice to immediately terminate this Agreement
which Bruce Power may issue to the Municipality in its sole discretion.
2. Performance Standards. Municipality shall and shall cause its subcontractors to
perform the Work having regard to the best interests of both Municipality and Bruce Power and
in accordance with applicable law, using suitably qualified individuals and with the care and
skill normally exercised by professionals providing similar services under similar
circumstances. Municipality agrees to use and to cause its subcontractors to use commercially
reasonable efforts to promptly complete all of the Work as soon as practical.
3. Deficiencies. Municipality agrees that it shall cause its subcontractors to correct any
deficiencies in the Work at no additional cost to Bruce Power.
4. Invoicing. Municipality shall submit monthly statements to Bruce Power on or about
the 10th day of each month detailing the actual costs incurred for the Stantec Work and the
BMROSS Work during the previous month (collectively,the "Monthly Statements", individually,
a "Monthly Statement"). Municipality shall include in each Monthly Statement all
subcontractor invoiced cost received by Municipality during the statement period. Provided
that Municipality has complied with the terms of this Agreement in all material respects and has
invoiced Bruce Power for such costs, Bruce Power shall reimburse Municipality for these actual
costs within 30 days of Bruce Power receiving such invoice. Municipality shall not invoice
Bruce Power and agrees that Bruce Power is not liable for any amount that, in the aggregate of
all amounts paid or to be paid to Municipality by Bruce Power, exceeds, as applicable, the
BMROSS Cap or the Stantec Cap. Municipality shall provide and shall cause its subcontractors
to provide any documentation reasonably requested by Bruce Power to verify Monthly
Statements. Municipality agrees to provide Bruce Power with the hourly rate of each
subcontractor personnel that will have time billed to Bruce Power. For certainty, Bruce Power
shall not be liable to reimburse any amount to Municipality that cannot be verified with the
documentation reasonably requested by Bruce Power or that is incurred after the date of
termination of this Agreement.
S. Costs. Except as may be agreed to herein, each Party agrees to individually bear its own
costs in connection with the Work, including, without limitation, in connection with the
preparation and/or review of any definitive agreements for the provision of the Water Services
and for any negotiations relating thereto ("Definitive Agreements").
6. Subcontracting. The Municipality will not subcontract any other component of the
Work to any party other than Stantec or BMROSS without Bruce Power's prior written consent,
such consent not to be unreasonably withheld or delayed (any third party, undertaking any
portion of the Work is referred to as a"subcontractor"and collectively the "subcontractors").
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The Municipality will require that each subcontractor comply with the terms and conditions of
this Agreement.
7. Reporting. The Municipality agrees that it shall provide full and complete disclosure to
Bruce Power of the Work and all of its components, including all drawings, invoices and reports
prepared by Municipality or its subcontractors (including Stantec and BMROSS) and such other
related information reasonably requested by Bruce Power. The Municipality shall, and shall
cause Stantec and BMROSS,to meet with Bruce Power from time to time to discuss the status of
the Work and shall provide cost and schedule reporting in each case as is reasonably requested
by Bruce Power. Bruce Power agrees that if such reporting and meetings is outside the scope
of the Work, the Cap shall be adjusted to account for the increase reporting and/or meetings
above those contemplated in the Work.
8. Limitation of Liability. In the event of breach of this Agreement by either Party it is
agreed that the remedy of the non-breaching Party shall be limited to the recovery of its direct
costs and applicable overhead expended in performing its obligations under this Agreement
and there shall be no liability for loss of present or prospective profits or any other incidental,
consequential, or special damages for or in respect of such breach whether arising in contract,
warranty, tort or otherwise. Municipality and Bruce Power each agree that the other's liability
under this agreement shall not exceed the costs and expenses reasonably incurred by
Municipality for the subcontractors in connection with the Work and, in any event, shall not, in
the aggregate, exceed the Cap.
9. Point of Contact.
Each Party will designate in writing one or more individuals within its organization as its point
of contact for the purposes of this Agreement. Initially,the designated points of contact are:
To: Bruce Power L.P.
Name: Jennifer Edey
Senior Vice-President, Operational Services and Business
Title: Development
Address: 177 Tie Road, Tiverton, ON
E-mail: JENNIFER.EDEY@brucepower.com
To: Municipality of Kincardine
Name: Adam Weishar
Title: Director of Infrastructure&Development
Address: 1475 Concession 5, R.R.#5, Kincardine ON, N2Z 2X6,
E-mail: aweishar@kincardine.ca
A Party may change its point of contact at any time by notice in writing of such change to the
other Parties in writing. Any notice or other communication to be given in connection with this
Agreement must be given in writing and will be given by personal delivery or by electronic
means of communication addressed to the recipient's point of contact identified in accordance
with the provisions of this Section.
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10. Legal Commitment. The Parties acknowledge and agree with each other that until one
or more Definitive Agreements have been executed, the Parties will not be under any legal
obligation to pursue or consummate the Water Services or enter into any Definitive Agreements
by virtue of this Agreement. Entering into any one or more Definitive Agreements shall be at
the sole and unfettered discretion of each Party.
11. Miscellaneous.
a. This Agreement and the Original Agreement constitute the entire agreement
between the Parties with respect to the subject matter hereof and supersedes any
previous understandings, commitments, or agreements, oral or written with respect
to the subject matter hereof. No changes may be made in this Agreement without
the written agreement of duly authorized representatives of each of the Parties.
Each Party represents and warrants to the other that there is no agreement between
it and any other person, firm, or corporation which would cause this Agreement not
to have full force and effect.
b. Paragraph headings herein are for convenience only and shall not limit in any way
the scope or interpretation of any provision of this Agreement.
c. This Agreement is governed by and will be construed in accordance with the laws of
the Province of Ontario and the laws of Canada applicable therein. All Parties
hereby attorn to the non-exclusive jurisdiction of the courts of the Province of
Ontario in respect of any dispute arising out of this Agreement.
d. No Party may assign its interest in this Agreement to any other party without the
prior written consent of the other Party.
e. This Agreement may be executed in any numbers of counterparts, each of which will
be deemed to be an original and all of which taken together will be deemed to
constitute one and the same instrument.
f. Delivery of an executed signature page of this Agreement by a Party by electronic
transmission will be as effective as delivery of a manually executed copy of the
Agreement by such Party.
g. If any provision of this Agreement is held to be invalid or unenforceable in whole or
in part, such invalidity or unenforceability will attach only to such provision or part
thereof and the remaining part of such provision and all other provisions hereof will
continue in full force and effect.
h. No failure or delay by a Party in exercising any right, power or privilege under this
Agreement or otherwise will operate as a waiver thereof, nor will any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right,power or privilege hereunder or otherwise.
i. Unless otherwise specified, all references to money amounts are to the lawful
currency of Canada.
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j. The Parties shall with reasonable diligence do all such things and provide all such
reasonable assurances as may be required to consummate the transactions
contemplated by this Agreement, and each Party shall provide such further
documents or instruments required by any other Party as may be reasonably
necessary or desirable to effect the purpose of this Agreement and carry out its
provisions.
k. Neither Party has the authority to act as agent for the other Party nor shall either
Party have the right to enter into any binding legal obligation on behalf of the other
party.
1. All continuing rights, obligations and provisions intended to survive under this
Agreement will survive the termination or expiry of the Term and of this Agreement.
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Exhibit 1 -Stantec Work Plan
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