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HomeMy WebLinkAbout07 086 Wind power Enbridge master agreement ------- . . . . THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE BY-LAW NO. 2007 - 086 BEING A BY-LAW TO AUTHORIZE THE SIGNING OF A WIND POWER MASTER AGREEMENT WITH ENBRIDGE ONTARIO WIND POWER LP WHEREAS Section 27 of the Municipal Act 2001, S.O. 2001, C. 25, as amended, provides that a municipality may pass by-laws in respect of a highway only if it has jurisdiction over the highway; AND WHEREAS pursuant to the said Municipal Act, Section 8 (1) provides 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 WHEREAS pursuant to the said Municipal Act, Section 9 provides that a municipality 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 Enbridge Ontario Wind Power LP wishes to establish and operate a wind energy generation facility consisting of one hundred and ten (110) 1.65 megawatt wind turbines within the geographic boundaries of the Municipality of Kincardine; AND WHEREAS Enbridge Ontario Wind Power LP wishes to use certain portions of municipal road allowances for the purpose of transmitting electrical power; AND WHEREAS the Council for the Municipality of Kincardine deems it advisable to enter into a Wind Power Project Master Agreement with Enbridge Ontario Wind Power in order to set out their respective rights and obligations as they relate to the wind energy generation facility; NOW THEREFORE the Council for The Corporation of the Municipality of Kincardine ENACTS as follows: 1. That the Municipality of Kincardine enter into a Wind Power Project Master Agreement with Enbridge Ontario Wind Power LP setting out their respective rights and obligations relating to the wind energy generation facility and attached hereto as Schedule "A". 2. That the Mayor and Chief Administrative Officer be authorized to sign, on behalf of the Municipality of Kincardine the Wind Power Project Master Agreement. . . . /2 . . . . Page 2 Enbridge Wind Power Project Master Agreement By-law By-law No. 2007 - 086 3. This By-law comes into full force and effect at the time of its passing. 4. This By-law may be cited as the "En bridge Wind Power Project Master Agreement By-law." READ a FIRST and SECOND TIME this 20th day of June, 2007 ~ 1'V\aL~aQP Clerk READ a THIRD TIME and FINALLY PASSED this 20th day of June, 2007. ~~i~~ Clerk p BET WEE N: This is Schedule" .lL .. to By-Law No. C1OD7-~~passed the ao~y ~/ 2001 ~ ~1'1\o('~Cl~~~Ql, " THIS AGREEMENT made as of this 20th day of June, 2007. THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE (hereinafter called the "Municipality") OF THE FIRST PART - and - ENBRIDGE ONTARIO WIND POWER LP OF THE SECOND PAR~( ~ ~ WHEREAS Enbridge wishes to establish and operate a wind energy generation facility (th:p' /!J "Project") consisting of one hundred and ten (110) 1.65 megawatt wind turbines within the $lf geographic boundaries of the Municipality, with thirty-eight (38) of those turbines currently being/A before the Ontario Municipal Board for zoning approval; ,. (hereinafter called "En bridge") AND WHEREAS the Municipality is the owner of the common and public highways that are situated within its geographic boundaries (the "Municipal Road Allowances"); AND WHEREAS Enbridge wishes to use certain portions of the Municipal Road Allowances for the purpose of transmitting electrical power produced by the Project, and the Municipality has agreed to grant to Enbridge certain rights in respect to the Municipal Road Allowances; AND WHEREAS the parties are entering into this agreement in order to set out their respective rights and obligations as they relate to the Project. NOW THEREFORE, for Two Dollars ($2.00) of lawful money of Canada now paid by each of the parties to the other and for other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), the parties hereby agree as follows: 1. The location of the 110 wind turbines comprising the Project shall be as set out in Schedule "A" to this agreement. Enbridge acknowledges and agrees that none of the turbine locations may be altered without the prior written consent of the Municipality, which may be withheld in the Municipality's sole discretion. 2. The term of this Agreement shall commence on June 20, 2007 and shall continue and be in full force and effect until December 31, 2028, at which point it shall terminate. The terms of any renewal agreement shall be subject to the mutual concurrence of the parties, and there shall be no automatic right of renewal. 3. The Municipality hereby grants to Enbridge the right to enter during the term upon the Municipal Road Allowances to construct, maintain, replace, remove, operate, inspect, alter and repair the poles, wires and associated electrical equipment (the "Equipment") used to transmit electrical power generated by the Project, on the terms and conditions set out herein. 4. Enbridge agrees that the Equipment shall be erected only in accordance with plans as approved in writing by the Municipality, acting reasonably, subject only to such changes as have received advance written approval from the Municipality, and shall be maintained at all times in a condition satisfactory to the Municipality, acting reasonably. 5. Enbridge shall where possible endeavour to utilize co-location opportunities using existing infrastructure so as to minimize the need to install new poles and wires within the Municipal Road Allowances. 6. Enbridge agrees that all work carried out by Enbridge or its agents under this Agreement shall be carried out expeditiously in a good and workmanlike manner, in accordance with good engineering and trade practice and so as to cause a minimum of nuisance or disruption to any other person. Enbridge shall take all necessary precautions to avoid dust, noise and other nuisance and to provide for public safety. Subject to section 16 of this Agreement, no work shall be undertaken by Enbridge under the terms of this Agreement without the prior written approval of the Municipality, not to be unreasonably withheld or delayed. - 2 - '7.', In the event thatthe standard, condition or maintenance of any of the Municipal Road Allowances is not sufficient to permit Enbridge to carry out its desired operations, Enbridge shall be solely responsible for carrying out any required remedial work or maintenance, at its own expense, upon receiving approval in writing from the Municipality. 8. Enbridge acknowledges that the winter and year-round maintenance of the Municipal Road Allowances is, and will continue to be, limited and that the Municipality does not provide twenty- four (24) hour snow clearance on any of the Municipal Road Allowances, or any snow clearance at all on some Municipal Road Allowances. Enbridge agrees that the Municipality shall not in any way be responsible for plowing or maintaining any of the Municipal Road Allowances to a condition to permit Enbridge's operations hereunder. 9. In the event that Enbridge chooses to provide, and the Municipality chooses to permit, winter maintenance of a Municipal Road Allowance that the Municipality would not otherwise maintain during the winter season, Enbridge shall ensure that it maintains the said Municipal Road Allowance to a standard that will ensure public safety at all times and to the satisfaction of the Municipality. Without limiting any other provision of this Agreement, Enbridge shall save harmless and indemnify the Municipality, its servants, officers, councillors and agents from all demands, losses, damages, costs, charges and expenses which may be claimed or recovered against the Municipality by any person or persons as a result of Enbridge's maintenance of any Municipal Road Allowances for the winter season under the terms of this Agreement. 10. Enbridge shall ensure that neither its work nor its Equipment unduly interferes with the use of any Municipal Road Allowances by members of the public. Without limiting the generality of the foregoing, Enbridge shall not be entitled to close or temporarily block any of the Municipal Road Allowances without the prior written consent of the Municipality, acting reasonably. Enbridge acknowledges that the rights granted hereunder are non-exclusive, are in the nature of a licence only, and do not constitute a grant of easement or any other permission other than as expressed herein in writing. 11. For work which Enbridge may undertake under this Agreement, Enbridge shall be responsible for consulting with Hydro One regarding any matters that relate to services provided by Hydro One. Enbridge shall also be responsible for consulting with and obtaining all necessary approvals from all regulatory bodies such as, but not limited to, the Saugeen Valley Conservation Authority and the Ministry of the Environment. 12. Enbridge shall, at its sole expense, repair as soon as practicable all damages caused by Enbridge or its agents to the Municipal Road Allowances or other public or private property, including but not limited to municipal drains, ditches, street surfaces, storm and sanitary sewer systems, which may occur during the term of this Agreement. At its option and in its sole discretion, the Municipality may undertake such repairs at the expense of Enbridge. If the repairs are deemed by the Municipality to be urgent in nature or if they are not completed by Enbridge within ten (10) days from the sending of written notice by the Municipality to Enbridge, and Enbridge shall, forthwith upon the receipt of an invoice for such repairs, pay to the Municipality the amount of the invoice. 13. Enbridge shall not cut, trim or interfere with any trees of significant size on the Municipal Road Allowance without the prior written approval of the Municipality. Notwithstanding the foregoing, Enbridge agrees to maintain at its sole expense, the trees within those portions of the Municipal Road Allowances in which the equipment, including, without limitation, Enbridge's poles and wires, are located. 14. Enbridge shall, upon its receipt of written notice from the Municipality informing Enbridge that it has breached a term of this Agreement, suspend all work until the breach is rectified to the Municipality's satisfaction. Nothing in this Agreement constitutes a waiver of Enbridge's duty to comply with any by-law of the Municipality or any other law. 15. All notices required under this Agreement shall be sent by facsimile transmission or registered mail to the following address or facsimile number: To Enbridge at: Enbridge Ontario Wind Power LP 795 Queen Street, Kincardine, ON N2Z 2Y6 Fax: 519-396-2443 Attention: G. Robert Simpson - 3 - To the Municipality at: The Corporation of the Municipality of Kincardine 1475 Concession 5, R.R. #5 Kincardine, ON N2Z 2X6 Fax: (519) 396-8288 Attention: Chief Administrative Officer 16. In the event that Enbridge wishes to make a material change at any time to any of the Equipment, it shall make application to the Municipality for approval and shall not proceed with such change until approval in writing is given by the Municipality, acting reasonably. A replacement-in-kind of the Equipment shall not constitute a material change. The Municipality agrees to allow Enbridge or it's agent to complete emergency work on the Equipment as necessary. 17. Enbridge shall provide to the Municipality an irrevocable letter of credit, in a form satisfactory to the Municipality, in the amount of Two Million Dollars ($2,000,000.00), to secure Enbridge's obligations under this Agreement. Enbridge agrees that in the event that any portion of such letter of credit is used by the Municipality to carry out any of Enbridge's obligations under this Agreement, Enbridge shall forthwith upon its receipt of written notice from the Municipality replace the letter of credit or post further security, in both cases to the satisfaction of the Municipality, to restore the face value of the letter of credit to the amount set out in this paragraph. 18. The following Schedules are attached hereto form part of this Agreement: Schedule "A" - Wind Turbine Locations and Municipal Road Allowances Schedule "B" - Decommissioning Plan Schedule "C" - High Angle Rescue Plan Enbridge agrees that, at the end of the term of this Agreement or upon the earlier termination thereof, it shall remove all of the Equipment from the Municipal Road Allowances and other public and private property, and shall carry out the Decommissioning Plan at its sole cost and expense, all to the satisfaction of the Municipality in the Municipality's sole discretion, acting reasonably. Enbridge further agrees that it shall file with the Municipality and adhere to the High Angle Rescue Plan. 19. Enbridge agrees to pay to the Municipality all of its in-house and external administration costs incurred in connection with this Agreement, including reasonable legal, engineering and inspection costs. 20. The parties acknowledge and agree that the following persons have been granted authority by the Municipality to administer and act on the Municipality's behalf with respect to the matters provided for in this Agreement: Road Issues: Public Works Manager or designate Building and Planning Issues: Building and Planning Manager Other Issues arising from Agreement: Chief Administrative Officer The above-noted officials are authorized to make minor amendments to the terms of this Agreement, consistent with its purpose, to carry out the intent of this Agreement. Any proposed changes which are not minor in nature must be brought to the Municipality's Council for review and ratification before they will be binding upon the Municipality. 21. All facilities and matters required by this Agreement shall be provided and maintained by Enbridge at its sole risk and expense to the satisfaction of the Municipality and in accordance with the standards determined by the Municipality, acting reasonably. 22. Enbridge agrees on behalf of itself, its agents, trustees, administrators and permitted assigns to indemnify and hold harmless the Municipality, its servants, officers, councillors and agents from and against all suits, judgments, claims, demands, expenses, actions, causes of action and losses and for any and all direct liability for damages to property and injury to persons (including death) which the Municipality may incur, other than by reason of the Municipality's negligence or willful misconduct, as a result of or arising out of or in relation to any of the terms of this agreement. 23. Enbridge shall purchase and maintain Commercial General Liability insurance in a form satisfactory to the Municipality and with a minimum coverage limit of $10,000,000 (ten million dollars) per occurrence, covering the legal liability arising out of the installation of the Equipment and the operations of Enbridge related to the Municipal Road Allowances, which shall name the - 4 - Municipality as an additional insured and include cross liability and contractual liability, non-owned automobile coverage with blanket contractual and physical damage coverage for hired automobiles and thirty (30) days written notice of cancellation. Enbridge shall provide the Municipality with a valid certificate of such insurance as evidence of the foregoing coverage upon signing this Agreement. Enbridge shall provide the Municipality with any renewal and replacement certificates as may be necessary during the term of the Agreement. 24. Enbridge agrees that it shall not call into question, directly or indirectly in any proceeding whatsoever in law or in equity or before any administrative tribunal, the right of the Municipality to enter into this Agreement and to enforce each and every term, covenant and condition herein contained. The parties agree that this Agreement may be pleaded as an estoppel against Enbridge in any case provided that nothing in the Agreement shall adversely affect Enbridge's ability to exercise any rights or powers authorized under any instrument issued by the Ontario Energy Board pursuant to the Ontario Energy Board Act, 1998 (and any successor legislation). 25. This agreement shall be governed by the laws in effect in the Province of Ontario, and may not be assigned or transferred by Enbridge without the prior written consent of the Municipality, acting reasonably. IN WITNESS WHEREOF the parties hereto have executed this Agreement under the hands of their duly authorized signing officers. ~ ~arry Kra~r, Mayor /) ~ ) ,', L- A ~~ rQ r> ,,^ vnV John deRosenroll, CAO We have authority to bind the Corporation. Name: G. R6bef1Simpson Title: General Manager, Enbridge Ontario Wind PowerLP I/We have authority to bind the Limited Partnership. E ,,- ~tleRlX;i 1oI[l(C/iCLO~I!:.\L TOWCR o '( o o Q YtOOO[I)""U/l~!:(U,r ACCESS~ADS HC1\lf O'o'[F~!:.I.' .(~.V . j)'STllI\lJJ;(:tI ;)"r .uw - l.;"'CE/i~N~ CC:.uCTOll ~"L 2:ro~\f {1YlHO (l~i) CC~1lO(;;l lWNIC,I'.I.\.ClU.'" Jl2illJ 1.ClbD~tt5SHOWNONlHlS~ NI!. 9ISm0f{ 1Wl83, lCK l7. 2.'ltli'OOlW'HCI~flOIolAND~ flOO!ll)IA(S lIJ.S f'RO'IIO[O B'l' namGE: NlO OOWED nIOII U11)lJT I:lR.I.WlQ IlECEMD ON w,r08j06. 3. RECEPrOR1.OCA00NS08TMED~9RUCE ~~~~I~ ,tfTOllta3. 4. f\I!tilltI:l.OCA!lCmSAAE BASED ON EXCU SIlUllSMEEfFROl.ll8lCROOPRECEMD ONIiWlOt/07V2NiDPlJOEtIX ENGINEERIIlGUTltC~1tUSTCf" loWIaiM{07. 5. FOR flfCTRlCALlNEJllEiD COUlCTOllUNB sa 0fN,0,X OiUlI\Hllll6JI-POOT-CI AMEC . BLACK & McDONALD JOINT VENTURE A amec!fJ I A EN.RIDGE ~. _OII~_'*,l-.alt,... -Ifl.'~.___ , _l#II:IJIlHlB 1lEV10,---- 2 ....."" Al-151873-00-121-Ql00 ~FUJ<<KSS >:\CNf\Cri'\lI.r "'" 00 ENBRIDGE ONTARIO WIND POWER LP SITE PlAN LAYOUT - (1 BOMW) '!ifNl?/SDl.. ~~ =~~lS~~~: Ofl'QtIt!>C:PO'MS$IO'ICf'I<tf.C~1lO. 5 I 4 "'. G "" ~- 9 8 7 6 ;\ F en (") :J: m C C r- m ~ I :E z C -I C :JJ OJ Z m r- 0 (") ~ 0 V1 z en ~ z c :s: c z (") "C ~ r- :JJ 0 ~ C ~ r- r- 0 :E ~ z (") m en E o c B - 6 - SCHEDULE "8" - DECOMMISSIONING PLAN .~.. .... ,.,.:I. DECOMMISSIONING ENBRIDGE ONTARIO WIND POWER: UNDERWOOD WGS Definition: To withdraw a wind farm from active service. Decommissioning involves the following activities: 1. Site Preparation: Site preparation activities will include preparing a point of access to the site (Le. temporary road). preparation of the site (e.g. placement of temporary snow fencing) and the mobilization of equipment. 2.. Disassemble: This would involve the removal of the turbines and other associated infrastructure including turbine foundations to below grade and the removal of electricallineslfacilities. Previously disturbed lands would be rehabilitated and returned to there previous state (either natural or farmland) or remain in its improved state depending on the landowners preferences. A detailed decommissioning plan to execute the below described activities will be developed prior to Its Implementation. Further detail on disassembling wind farm infrastructure is shown below: laDle 1: Ulsassemollna vv IrJU n11111 II III i:l;:)1I U"'UI";; Physical Description of Activity Works/Activities Rotor. Generator and The rotor, generator and towers would be disassembled using Tower Disassembly a crane and removed from the site using a flatbed truck. The re~use. reconditioning or disposal of these parts will be in accordance with regulatory requirements. All parts of the turbine are reusable or recyclable except for the blades. Some of the parts (cabling. generator) will have high economic value. Removal of Substation Transformer and electrical equipment will be removed from the site on flatbed trucks. Gravel and concrete will be removed and land will be reclaimed to previous agricultural use. Removal of Access All permanent access roads would be deep-ploughed, as Roads aoorooriate and araded to restore terrain profiles. Removal of Concrete The foundations will be removed to a depth of approximately Foundation 1.0m and filled with subsoil to rebuild the grade. Clean topsoil would be replaced over the area to approximate depth of adjacent horizons and the area seeded and left for cultivation or grazing, depending on the land use at the time and the oreference of the landowner. Remoyal of Distribution The distribution lines will be termInated and removed from the Lines ground, to a depth of 1.0m. Waste Management All waste material would be removed from the site and disposed at an appropriate facility (e.g. licensed landfill). Wash water from the cleaning of cement trucks will be disposed of in a Sewage Works designed for that purpose and approved under Section 53. (1) of the Ontario Water Resources Act. I .. ,...,." .,...... - 7 - A key aspect of decommissioning will be on the minimization of environmental effects. The following table shows the environmental effects and mitigation plans of the decommissioning activities: Table 2: Environmental Effects of Decommissionino Act" ... .................. Type of Description Environmental Effect Residual Impacts Turbine disassemblY will result in no residual impacts. Aquatic Environment There are no environmental effects expected from the decommissioning of the wind turbines since no materials from the wind turbine site are expected to enter the water as long as good construction practices are adhered to (e.g. proper diSpOsal of waste). Agricultural Impacts Agricultural land use restored after equipment disturbances have been completed. In addition, decommissioning activities are limited in extent and will only affect a small oart of the fields. Terrestrial Vegetation There may be temporary disturbance to plant communities in a small area from construction equipment, but no long lasting or significant effects are expected. Surficial disturbance will be minimized by using roads to access the site and existing .utility corridors. Terrestrial Wildlife Sensory disturbance of wildlife and birds for short term (2'-3 (Including Birds) days for removal) due to use of cranes and equipment for removal of the turbines. There are no significant environmental effects expected from the decommissioning of the wind turbines. Very few animals would be incapable of moving away from the site in order to avoid decommissionino activities. Noise Levels Noise levels associated with decommissioning would be similar or less than those associated with construction. Therefore no significant adverse effects are expected. Cultural Resources There ar~ no archeological or heritage effects that woUld result from the decommissioning of wind turbines. Social (including The decommissioning of the turbine may create a temporary Visual) nuisance from a visual perspective. Since the nuisance effects would be small in magnitude arid very short term, no significant adverse environmental effect would be exoected. Safety The project will be decommissioned using applicable standards and industry best practices. Equipment will be Inspected regularly and maintained to prevent any potential health and safety issues. As with construction, Signs would be posted advising public to stay off site. If decommissioning occurs during the winter months, it will be necessary to take standard construction-site precautions with respect to icing. Due to the available mitigation measures, no significant effects are expected. .. - 8 - SCHEDULE "C"- HIGH ANGLE RESCUE PLAN The High angle rescue plan must be filed and approved by the Municipality prior the commissioning of the Wind Generation Systems ( Wind Turbines)