HomeMy WebLinkAbout10 108 BEC Utility Assests Transfer Agreement By-law THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE
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BY -LAW
NO. 2010 — 108
BEING A BY -LAW TO ENTER INTO A SEWAGE TREATMENT PLANT AND
WATER TOWER ASSETS AND RELATED EASEMENTS TRANSFER
AGREEMENT WITH BRUCE POWER L.P. AND ITS AFFILIATES
WHEREAS pursuant to Sections 8 (1) and 9 of the Municipal Act 2001, S.O. 2001, c. 25,
as amended, 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 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 Section 11 (1) of the said Municipal Act gives broad authority to lower -
tier municipalities to provide any service or thing that the municipality considers
necessary or desirable for the public;
AND WHEREAS the Council of The Corporation of the Municipality of Kincardine
considers it to be in the interest of the Municipality to acquire assets related to the
provision of services at the Bruce Energy Centre;
NOW THEREFORE the Council of The Corporation of the Municipality of Kincardine
ENACTS as follows:
1. That the Sewage Treatment Plant and Water Tower Assets and Related
Easements Transfer Agreement with Bruce Power L.P. and its affiliates, attached
hereto as Schedule `A' and forming part of the by -law, is hereby approved.
2. That the Mayor and Chief Administrative Officer are hereby authorized and
• directed to execute the said agreement and all supplemental agreements and
documents to complete the transaction, on behalf of the Municipality of
Kincardine by affixing their signatures and the corporate seal.
3. This by -law shall come into full force and effect upon its final passage.
4. This by -law may be cited as the "BEC Utility Assets Transfer Agreement By -law ".
READ a FIRST and SECOND TIME this 1 1 th day of August, 2010.
r VA f tit !' 4. WI 1J
Mayor Cler I
READ a THIRD TIME and FINALLY PASSED this 11 day of August, 2010.
4
110 ayor �.Qpec:tcjClerk 1
•
BEC Utility Assets Transfer Agreement By -law
By -Law No. 2010 - 108
CONTRACT DOCUMENT:
Agreement for Water and Sewage between Bruce Power L.P. and
Bi -Ax International Inc., Greenfield Ethanol Inc. and Steelback
Brewery Inc. referred to on Page 36 filed under separate cover CO1 in
central files not with original By -law No. 2010 -108. Original of Bruce
Energy Centre Water Tower and Supply Pumps Joint Operating
Service Level Agreement (SLA) and Post Closing Agreement filed
under separate cover C01 in central files...copy only with By -law No.
2010 -108.
LIST OF ASSUMED CONTRACTS between:
Bruce Power L.P.
And
1. Bi -Ax International Inc. (the "Customer")
2. Greefield Ethanol Inc. (all 3 Filed Under Separate Cover)
3. Steelback Brewery Inc. (Central Records C01
4. PU Training Inc. - Schedule 5.8 of Original Agreement filed with
By -law No. 2010 — 108.
Also:
1. Original of Bruce Energy Centre Water Tower and Supply
Pumps Joint Operating Service Level Agreement (SLA)
2. and Post Closing Agreement
Project/Agreement: Sewage Treatment Plant and Water Tower
Assets and Related Easements Transfer
Agreement (Bruce Power - Kincardine)
FIRST DRAFT DATED AUGUST 11, 2010 FOR FILE
ONLY -DO NOT USE —
SIGNED ORIGINAL IS WITH BY -LAW 2010 -108 DATED MARCH 21, 2012
Filed under separate cover in Administration File — C01 in Central
Records:
Titled:
Municipality of Kincardine By -Law No. 2010 - 108
Being A By -law To Enter Into A Sewage Treatment Plant And Water
Tower Assets And Related Easements Transfer Agreement With
Bruce Power L.P. And Its Affiliates
Cited as: "BEC Utility Assets Transfer Agreement By -law"
Dated: 11 th day of August, 2010.
SEWAGE TREATMENT PLANT AND WATER TOWER ASSETS AND
RELATED EASEMENTS TRANSFER AGREEMENT
(BRUCE POWER - KINCARDINE)
BRUCE POWER L.P.
- and -
THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE
- - - March -2 -1, 2012 - - - - -
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TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS AND INTERPRETATION 2
1.1 Definitions 2
1.2 Schedules 10
1.3 Headings and Table of Contents 10
1.4 Gender and Number 10
1.5 Currency 10
1.6 Statutes 10
1.7 Invalidity of Provisions 10
1.8 Entire Agreement 11
1.9 Waiver, Amendment 11
1.10 Governing Law 11
1.11 Preparation of Agreement 11
1.12 Direct Transfer of the Transferred Assets from OPG or Subsidiary or
Third Party 11
ARTICLE 2 THE DIVESTITURE 12
2.1 Background 12
2.2 Operations During Interim Period 13
2.3 Assumed Contracts 13
2.4 Water Supply and Sewage Treatment Allocation Agreement 14
2.5 Approvals 14
2.6 Easements 14
2.7 Partial Surrender of Lease 16
2.8 HONI Consents 16
2.9 Operating Agreements 16
2.10 Sewage Treatment Agreements 16
2.11 Air Monitoring Station Licence 16
2.12 Costs and Expenses 17
2.13 Sludge 17
2.14 RSC 17
ARTICLE 3 DUE DILIGENCE 17
3..1 -- Due- Dili -gene - Investigations - ----- - - - - -- - - -- 17
3.2 Information from Governmental Authorities 18
3.3 Due Diligence Condition 18
3.4 Due Diligence Condition - Phase II ESA 19
ARTICLE 4 AS -IS - WHERE -IS 20
4.1 "As -is" - "Where -is" 20
4.2 Waiver 20
4.3 Release 21
4.4 Indemnity 21
4.5 Benefit of the Waiver, Release and Indemnity 22
4.6 Bruce Power Contribution 22
ARTICLE 5 THE TRANSACTION, CLOSING, CONDITIONS OF CLOSING 22
5.1 The Transaction 22
5.2 Adjustments to the Transfer Fee 22
5.3 Closing 22
5.4 Expiration Date 23
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TABLE OF CONTENTS
(continued)
5.5 Termination 23
5.6 Bruce Power Conditions 23
5.7 Municipality Conditions of Closing 23
5.8 Mutual Condition 24
5.9 Closing Deliveries 24
ARTICLE 6 COOPERATION, DISPUTE RESOLUTION 26
6.1 Co- operation 26
6.2 Company Representative 26
6.3 Dispute Resolution 26
6.4 Equitable Remedies 27
ARTICLE 7 REPRESENTATIONS AND WARRANTIES 27
7.1 Representations and Warranties of Bruce Power 27
7.2 Representations and Warranties of Municipality 28
ARTICLE 8 CONFIDENTIALITY 28
8.1 Confidentiality 28
ARTICLE 9 TAXES 29
9.1 Transfer Taxes 29
ARTICLE 10 GENERAL CONTRACT PROVISIONS 30
10.1 Limit of Liability 30
10.2 Notices 30
10.3 Risk Until Closing - Damage or Destruction 31
10.4 Planning Act Compliance 31
10.5 No Brokerage Fees 32
10.6 Tender 32
10.7 Merger 32
10.8 Time of the Essence 32
10.9 Further Assurances 32
10.10 Assignment and Enurement 32
10.11 Counterparts 32
10.12 BALD -- - - - - - ....33
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TABLE OF CONTENTS
SCHEDULES
Schedule 1.1.7 List of Assumed Contracts
Schedule 1.1.46 Form of OPG Assumption Agreement
Schedule 1.1.66 Sewage Treatment Agreements
Schedule 2.3 Assignment and Assumption Agreement for the Assumed Contracts
Schedule 2.4 Water and Sewage Service Agreement
Schedule 2.6.2 Form of OPG Easement Agreement
Schedule 2.6.3 Form of Third Party Easement
Schedule 2.11 Air Monitoring Station Licence
Schedule 5.8 Forms of LIUNA, PWU and UA Agreements
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SEWAGE TREATMENT PLANT AND WATER TOWER ASSETS AND
RELATED EASEMENTS TRANSFER AGREEMENT
(BRUCE POWER - KINCARDINE)
THIS AGREEMENT for reference purposes is dated as of the 21st day of March, 2012.
BETWEEN:
BRUCE POWER L.P., a limited partnership formed under
the laws of Ontario
- and -
THE CORPORATION OF THE MUNICIPALITY OF
KINCARDINE a municipal corporation pursuant to the
laws of Ontario
- and -
BRUCE POWER A L.P., a limited partnership formed
under the laws of Ontario
RECITALS:
A. OPG and the subsidiaries are the owners of the lands and premises that comprise the
BNPD parts of which form the Leased Premises leased to Bruce Power pursuant to the
Lease.
B. Part of the Leased Premises includes the Sewage Treatment Plant and the Water Tower.
C. The lands that will comprise the OPG easements are part of the Leased Premises and the
— Retained facilities: — — -- — D. Bruce Power supplies, among other things, non - potable industrial water to the BEC using
the Pump House and uses the Sewage Treatment Plant to provide sewage treatment
services to Municipality and third parties.
E. The services provided by the Sewage Treatment Plant, the Water Tower, the Pump House
and the Pipes located in the OPG Easements and the Third Party Easements are not
required for the operations of Bruce Power at the Leased Premises or the operations of
OPG, the Subsidiaries or any third party at the BNPD.
F. OPG, Bruce Power and Municipality want Municipality to acquire and operate thereafter
the Sewage Treatment Plant, the Water Tower and other Transferred Assets in order to .
provide, among other things (i) the sewage treatment services that Bruce Power currently
provides using the Sewage Treatment Plant; and (ii) industrial water that Bruce Power
currently provides to the BEC.
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G. Bruce Power intends to enter into the Bruce —OPG Agreement and Municipality and
Bruce Power are entering into this Agreement to facilitate the divestiture of the
Transferred Assets from OPG to Municipality (the "Divestiture ").
NOW THEREFORE in consideration of the mutual covenants set forth in this Agreement and
other good and valuable consideration (the receipt and sufficiency of which are hereby
acknowledged), the Parties agree as follows:
ARTICLE 1
DEFINITIONS AND INTERPRETATION
1.1 Definitions
In addition to terms defined elsewhere in this Agreement, the following terms as used in this
Agreement have the following respective meanings:
1.1.1 "Agreement" means this Sewage Treatment Plant and Water Tower Assets
and Related Easements Transfer Agreement (Bruce Power - Kincardine) and all
Schedules attached to this Agreement, in each case as they may be amended,
supplemented, replaced or restated from time to time, and unless otherwise
indicated, references to recitals, Articles, sections, paragraphs, Schedules and
Appendices are to recitals, Articles, sections, paragraphs, Schedules and
Appendices in this Agreement.
1.1.2 "Agreement Date" means the date of this Agreement as first written above.
1.1.3 "Air Monitoring Station" has the meaning set forth in section 2.11.
1.1.4 "Air Monitoring Station Licence" has the meaning set forth in section 2.11.
1.1.5 "Applicable Law" means, collectively, all applicable laws, statutes,
ordinances, decrees, rules, regulations, by laws, legally enforceable policies,
— —
codes or judicial, arbitral, administrative; ministerial departmental
or regulatory, judgments, orders, decisions, directives, rulings or awards, and
conditions of any grant of approval, permission, certification, consent,
registration, authority or licence by any court, statutory body, self regulatory
authority, stock exchange or other Governmental Authority.
1.1.6 "Approvals" means all permits, certificates, approvals, consents,
authorizations, registrations and licences that may be issued by any
Governmental Authority required for the ownership or operation of the
Transferred Assets.
1.1.7 "Assumed Contracts" means the contracts entered into by Bruce Power with
third parties for the provision of sewage treatment services and the supply of
industrial water to the BEC in effect on the Closing Date. The current list of
the Assumed Contracts is attached as Schedule 1.1.7.
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1.1.8 "BEC" means the lands and premises comprising Plan 3M -113 registered in
the Land Registry Office for the Land Titles Division of Bruce (No. 3) and
commonly referred to as the Bruce Energy Centre.
1.1.9 "BNPD" means the Bruce Nuclear Power Development located in the
Municipality of Kincardine, comprised of the Leased Premises and the
Retained Facilities.
1.1.10 "Bruce Power" means Bruce Power L.P., a limited partnership existing under
the laws of Ontario, and includes any successor to Bruce Power L.P. resulting
from any merger, arrangement or other reorganization of or including Bruce
Power L.P. or any continuance under the laws of another jurisdiction.
1.1.11 "BALP" means Bruce Power A L.P., a limited partnership existing under the
laws of Ontario, and includes any successor to Bruce Power A L.P. resulting
from any merger, arrangement or other reorganization of or including Bruce
Power A L.P. or any continuance under the laws of another jurisdiction.
1.1.12 "Bruce Power Contribution" has the meaning set forth in section 4.6.
1.1.13 "Business Day" means any day other than a Saturday, Sunday, any statutory
holiday in the Province of Ontario, or any day on which banking institutions
in Toronto, Ontario are not open for business.
1.1.14 "Claims" means claims, suits, proceedings, liabilities, obligations, losses,
damages, penalties, interest, orders (including orders issued by any
Governmental Authority), judgments, costs, expenses, fines, disbursements,
legal fees on a substantial indemnity basis, interest, demands and actions of
any nature or any kind whatsoever.
1.1.15 "Closing" means the completion of the Transaction on the Closing Date.
1.1.16 "Closing Date means, subject to section 5.3, the 3 day of May, 2012.
1.1.17 "Closing Deliveries" means such deeds, conveyances, transfers, assignments,
certificates, undertakings and other documents as the Parties and their
respective solicitors may reasonably require in order to complete the
Transaction.
1.1.18 "Commercially Reasonable Efforts" means efforts which are designed to
enable a Party, directly or indirectly, to satisfy or perform its obligations under
this Agreement and which do not require the performing Party to expend any
funds or assume liabilities other than expenditures and liabilities which are
reasonable in nature and amount in the context of such obligations or, where
applicable, usual commercial practice.
1.1.19 "Confidential Information" has the meaning set forth in section 8.1.
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1.1.20 "Dispute" has the meaning set forth in section 6.3.
1.1.21 "Divestiture" has the meaning set forth in Recital G.
1.1.22 "Due Diligence Cut - Off Date" means 5 days following the Execution Date.
1.1.23 "Due Diligence Period" means the period beginning on the Agreement Date
and ending at 5:00 p.m. on the Due Diligence Cut -Off Date.
1.1.24 "Easements" means the OPG Easements and the Third Party Easements.
1.1.25 "Execution Date" means the date when the Agreement is fully executed by
the Parties and if the Agreement is executed in counterparts the Execution
Date shall be the date on which the last Party to sign the Agreement does so.
1.1.26 "Encumbrance" means any registered security interest, lien, charge, pledge,
mortgage, adverse claim, conditional and instalment sale agreement, title
retention agreement, activity and use limitation, conservation easement, deed
restriction, easement, right of first refusal, option to purchase, option to lease,
certificate of pending litigation, subsisting non - compliance with the
subdivision control provisions of the Planning Act (Ontario) or any
predecessor of that Act or encumbrance of any kind.
1.1.27 "Expiration Date" has the meaning set forth in section 5.4.
1.1.28 "Governmental Authority" means any federal, provincial, state, municipal
or local government, parliament or legislature, or any regulatory authority,
agency, tribunal, commission, board or department of any such government,
parliament or legislature, or any court or other law, regulation or rule making
entity, or any arbitrator, each having or reasonably purporting to have
jurisdiction in the relevant circumstances, including, for greater certainty, any
Person acting or reasonably purporting to act under the authority of any
Governmental Authority.
1.1.29 "GST /HST" means the goods and services tax and the harmonized sales tax
imposed under the Excise Tax Act (Canada) and applicable in the Province of
Ontario.
1.1.30 "HONI" means Hydro One Networks Inc., its successors and assigns.
1.1.31 "HONI Easement" has the meaning set forth in section 1.1.52a)iii).
1.1.32 "HONI Licence" means the licence agreement dated as of May 25, 2005
between Bruce Power and HONI which permits HONI to erect and maintain
one pole and associated power line over part of the Sewage Treatment Plant.
1.1.33 "including ", "included" and "include" means including, included or include,
each without limitation.
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1.1.34 "Indemnified Persons" means Bruce Power, BALP, OPG, its Subsidiaries,
and any entity affiliated with any of the foregoing and their respective
partners, officers, directors, shareholders, employees, agents, contractors and
those for whom they may be in law responsible.
1.1.35 "Interim Period" means the period between the Agreement Date and the
earlier of the Closing Date and the date this Agreement is terminated.
1.1.36 "Lease" means the amended and restated lease agreement dated as of May 12,
2001 among OPG, Bruce Power, the Subsidiaries and British Energy plc, as
amended, supplemented, replaced or restated from time to time.
1.1.37 "Leased Premises" means the premises comprising that part of the BNPD
leased by Bruce Power from OPG and certain subsidiaries of OPG pursuant to
the Lease and includes the Sewage Treatment Plant and the Water Tower.
1.1.38 "LIUNA" means collectively, Labourers International Union of North
America, Ontario Provincial District Council, on its own behalf and on behalf
of Labourers International Union of North America, Local 1059.
1.1.39 "Notice" has the meaning set forth in section 10.2.
1.1.40 "Municipality" means The Corporation of the Municipality of Kincardine
and any successor municipal corporation.
1.1.41 Municipality's Representatives" mean the employees, representatives,
consultants, contractors, advisors and agents of Municipality.
1.1.42 "Municipality's Termination Notice" has the meaning set forth in section
3.3.1.
1.1.43 "Operating Agreement" means any agreement between Bruce Power and a
third party service provider for provision operating or other services or
supplies in connection with the operation of any of the Transferred Assets.
1.1.44 "OPG" means Ontario Power Generation Inc., a corporation incorporated
under the laws of Ontario, and includes any successor to Ontario Power
Generation Inc. resulting from any amalgamation, merger, arrangement or
other reorganization of or including Ontario Power Generation Inc. or any
continuance under the laws of another jurisdiction.
1.1.45 "OPG Assets" means the Transferred Assets other than the Third Party
Easements and the Assumed Contracts.
1.1.46 "OPG Assumption Agreement" means the written Water and Sewage
Service Agreement Conditional Assumption Agreement to be entered into
between OPG, Municipality and OPG Common Facilities essentially in the
form attached to this Agreement as Schedule 1.1.46.
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1.1.47 "OPG -Bruce Power Agreement" has the meaning set forth in section 2.1.1.
1.1A8 "OPG Common Facilities" means Ontario — Huron Common Facilities Inc. a
corporation incorporated under the laws of Ontario, and includes any
successor to Ontario — Huron Common Facilities Inc. resulting from any
amalgamation, merger, arrangement or other reorganization of or including
Ontario — Huron Common Facilities Inc. or any continuance under the laws of
another jurisdiction.
1.1.49 "OPG Easements" mean the easements (including all agreements in
connection therewith) whether in existence as of the Agreement Date or
subsequently acquired that are required to accommodate Pipes located on, in
or under the Leased Premises and, if applicable, the Retained Facilities that
are required in connection with operation of the Sewage Treatment Plant, the
Water Tower or the supply of industrial water utilizing the Pump House to the
BEC up to, but not within, the fence line around the BNPD on the Lake Huron
side of the Tie Road.
1.1.50 "Other Agreements" has the meaning set forth in section 2.10.1c).
1.1.51 "Parties" means the parties to this Agreement and "Party" means any one of
the Parties.
1.1.52 "Permitted Encumbrances" means:
a) Re Sewage Treatment Plant
i) Instrument No. R- 170321 registered July 10, 1979 being a by-
law.
ii) Instrument No. R- 282664 being a transfer of easement in
favour of The Corporation of the Village of Tiverton registered
December 17, 1991:. To the extent that Municipality is the
"successor' to the Village of Tiverton, this easement will
merge with the fee on Closing.
iii) Instrument No. R- 356122 being a transfer of easement in
favour of Hydro One Networks Inc. registered April 27, 2001
( "HONI Easement ").
iv) The HONI Licence.
b) Re Water Tower
i) Instrument No. LT19893 being a notice of agreement in favour
of The Corporation of the Township of Bruce registered
December 7, 1987.
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ii) Instrument No. LT53922 being a notice of agreement in favour
of The Corporation of the Municipality of Kincardine
registered April 29, 2004 (partial release of Instrument No.
LT19893).
c) Re Sewage Treatment Plant and Water Tower:
i) OPG Easements and Third Party Easements.
ii) Those exceptions to title as may be agreed to in writing by the
Parties on or prior to the Closing Date.
iii) The reservations, limitations, provisions and conditions
expressed in the original grants from the Crown, as varied by
statute, statutory exceptions to title and rights of entry, access
or use established by statute to the extent they do not interfere
in a material way with the use and enjoyment of the
Transferred Assets for its intended use or purpose.
iv) Statutory liens for any taxes or similar charges capable of
forming a charge or lien on the Transferred Asset in question
not yet due or delinquent or the validity of which is being
contested in good faith by appropriate proceedings.
v) Construction and other similar liens arising or incurred in the
ordinary course of the operation, maintenance or rehabilitation
of the Transferred Assets relating to obligations as to which
there is no default on the part of any of the Parties or the
validity of which is being contested in good faith.
vi) Zoning and building by -laws and ordinances, conservation
restrictions and other land use and environmental regulations
imposed by Governmental Authorities, development or site
plan agreements and restrictive covenants which do not: (i) in
the aggregate, materially interfere with the current use or
operation of the Transferred Asset in question, and (ii) secure
indebtedness.
vii) Such other liens, imperfections in or failures of title, charges,
restrictions, encroachments and defects in title that do not: (i)
in the aggregate, materially interfere with the current use or
operation of the Transferred Asset in question, and (ii) secure
indebtedness.
1.1.53 "Person" means any individual, partnership, limited partnership, joint
venture, syndicate, sole proprietorship, company or corporation with or
without share capital, unincorporated association, trust, trustee, executor,
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administrator or other legal personal representative, Governmental Authority
or entity however designated or constituted.
1.1.54 "Phase II ESA" means the Phase II Environmental Site Assessment titled
Phase II Environmental Site Assessment Bruce Energy Centre Wastewater
Treatment Plant Kincardine, Ontario prepared by Golder Associates under
Report Number -06- 1112- 016(7000)
1.1.55 "Phase II ESA Due Diligence Cut -Off Date" has the meaning set forth in
section 3.4.
1.1.56 "Phase II ESA Satisfaction Notice" has the meaning set forth in section
3.4(b).
1.1.57 Phase II ESA Termination Notice" has the meaning set forth in section
3.4.2(a).
1.1.58 "Pipes" mean all sewage (influent and effluent) and water pipes, valves,
meters and related equipment that are located in, on, under, over or upon the
Easements required to transport sewage for treatment at the Sewage Treatment
Plant and industrial water to the BEC but, for clarity, "Pipes" shall not
include: (i) any sewage pipes (influent and effluent), valves, meters and
related equipment located "downstream" of a point located at GPS coordinates
N. 4905836.9 E. 453474.3; (ii) any water pipes, valves, meters and related
equipment located "upstream" of a point located at GPS coordinates
N.4906848.30 E. 454024.99; and (iii) any steam pipes.
1.1.59 "Property Information" has the meaning set forth in section 3.1.1a).
1.1.60 "Pump House" means the pump house facility located on Leased Premises.
1.1.61 "PWU" means Power Workers' Union Canadian Union of Public Employees
Local 1000 - C.L.C.
1.1.62 "RSC" means a record of site condition contemplated under Part XV.1 and
O.Reg. 153/04 of the Environmental Protection Act (Ontario).
1.1.63 "Retained Facilities" means those parts of the BNPD that are not part of the
Leased Premises and that are owned by OPG or a Subsidiary.
1.1.64 "Ross Report" has the meaning set forth in section 4.6.
1.1.65 "Satisfaction Notice" has the meaning set forth in section 3.3.2.
1.1.66 "Sewage Treatment Agreements" mean the agreements listed in Schedule
1.1.66 as same may have been amended, restated or supplemented from time
to time.
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1.1.67 "Sewage Treatment Plant" means the sewage and wastewater reception and
treatment plant and the associated influent and effluent piping system, located
at 1842 Concession #2, Township of Bruce, ON and legally described as Part
of Lots 11 and 12 Concession "A" Lake Range, Municipality of Kincardine
designated as Parts 5 and 6 Plan 3R -7015.
1.1.68 "Steam Equipment" has the meaning set forth in section 2.6.6.
1.1.69 "Sludge" means sludge that is a by- product of the treatment of sewage at the
Sewage Treatment Plant that has accumulated at the Sewage Treatment Plant
as of Closing.
1.1.70 "Sublease" has the meaning set forth in section 5.9.2.
1.1.71 "Subsidiaries" means OPG - Huron A Inc., OPG - Huron B Inc., OPG Huron
Common Facilities Inc. and OPG -Waste Inc. or any of them.
1.1.72 "Third Party Easements" mean the easements for Pipes (including all
agreements in connection therewith) whether in existence as of the Agreement
Date or subsequently acquired that are located in, on or on land owned by
third parties and required for the operation of the Sewage Treatment Plant, the
Water Tower or the supply of industrial water to the BEC.
1.1.73 "Transaction" means the transactions contemplated in this Agreement
including the transfer of the Transferred Assets to Municipality.
1.1.74 "Transfer Fee" means the nominal compensation of ten ($10) dollars to be
paid by Municipality to Bruce Power as total compensation for the transfer of
the Transferred Assets.
1.1.75 "Transfer Taxes" has the meaning set forth in section Article 9.
1. L76 "Transferred Assets" means the Sewage Treatment Plant, the Water Tower;
the benefit of the OPG Easements, the benefit of the Third Party Easements,
the Pipes, the Assumed Contracts and the electronic transfer of the electronic
versions of any related drawings and applicable manufactures' manuals in
Bruce Power's possession.
1.1.77 "UA" means collectively, Ontario Pipe Trades Council of the United
Association of Journeymen and Apprentices of the Plumbing and Pipefitting
Industry of the United States and Canada, on its own behalf and on behalf of
the United Association of Journeymen and Apprentices of the Plumbing and
Pipefitting Industry of the United States and Canada, Local 527.
1.1.78 "Water and Sewage Service Agreement" has the meaning set forth in
section 2.4.
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1.1.79 "Water Tower" means the water tower and related lands occupied by or used
in conjunction with the water tower being that part of Lot 18 on Plan 3M -113
Municipality of Kincardine designated as Part 2 on Plan 3R -6087.
1.2 Schedules
The following are the Schedules attached to this Agreement:
1.2.1 Schedule 1.1.7 List of Assumed Contracts
1.2.2 Schedule 1.1.46 Form of OPG Assumption Agreement
1.2.3 Schedule 1.1.66 Sewage Treatment Agreements
1.2.4 Schedule 2.3 Assignment and Assumption Agreement for the Assumed
Contracts
1.2.5 Schedule 2.4 Water and Sewage Service Agreement
1.2.6 h
Sc edule 2.6.2 Form of OPG Easement Agreement
1.2.7 Schedule 2.6.3 Form of Third Party Easement
1.2.8 Schedule 2.11 Air Monitoring Station Licence
1.2.9 Schedule 5.8 Forms of LIUNA, PWU and UA Agreements
1.3 Headings and Table of Contents
The inclusion of headings and a table of contents in this Agreement are for convenience of
reference only and shall not affect the construction or interpretation of this Agreement.
1.4 Gender and Number
In this Agreement, unless the context otherwise requires, words importing the singular include
the plural and vice versa and words importing gender include all genders.
1.5 Currency
Except where otherwise expressly provided, all amounts in this Agreement are stated and shall
be paid in Canadian currency.
1.6 Statutes
Any reference in this Agreement to a statute or to a regulation or rule promulgated under a
statute or to any provision of a statute, regulation or rule shall be a reference to the statute,
regulation, rule or provision, as amended, re- enacted or replaced from time to time.
1.7 Invalidity of Provisions
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Each of the provisions contained in this Agreement are distinct and severable and a declaration
of invalidity or unenforceability of any such provision or part thereof by a court of competent
jurisdiction shall not affect the validity or enforceability of any other provision of this
Agreement. To the extent permitted by Applicable Law, the Parties waive any provision of
Applicable Law that renders any provision of this Agreement invalid or unenforceable in any
respect. The Parties shall engage in good faith negotiations . to replace any provision which is
declared invalid or unenforceable with a valid and enforceable provision, the economic effect of
which comes as close as possible to that of the invalid or unenforceable provision which it
replaces.
1.8 Entire Agreement
This Agreement constitutes the entire agreement between the Parties pertaining to the subject
matter of this Agreement. There are no warranties, conditions, or representations (including any
that may be implied by statute) and there are no agreements in connection with such subject
matter except as specifically set forth or referred to in this Agreement. No reliance is placed on
any warranty, representation, opinion, advice or assertion of fact made either prior to,
contemporaneous with, or after entering into this Agreement or any amendment or supplement
thereto, by any Party to this Agreement or its partners, directors, officers, employees or agents, to
any other Party to this Agreement or its partners, directors, officers, employees or agents, except
to the extent that the same has been reduced to writing and included as a term of this Agreement
and none of the Parties to this Agreement has been induced to enter into this Agreement or any
amendment or supplement by reason of any such warranty, representation, opinion, advice or
assertion of fact. Accordingly, there shall be no liability, either in tort or in contract, assessed in
relation to any such warranty, representation, opinion, advice or assertion of fact, except to the
extent contemplated above.
1.9 Waiver, Amendment
Except as expressly provided in this Agreement, no amendment or waiver of this Agreement
shall be binding unless executed in writing by the Party to be bound thereby. No waiver of any
provision of this Agreement shall constitute a waiver of any other provision nor shall any waiver
of any provision of this Agreement constitute a continuing waiver or operate as a waiver of, or
estoppel with respect to, any subsequent failure to comply, unless otherwise expressly provided.
1.10 Governing Law
This Agreement and any Dispute shall be governed by and construed in accordance with the laws
of the Province of Ontario and the laws of Canada applicable therein.
1.11 Preparation of Agreement
The terms and conditions of this Agreement are the result of negotiations between the Parties and
the Parties agree that this Agreement shall not be construed in favour of or against any Party
because of the extent that any Party or its professional advisors participated in the preparation of
this Agreement.
1.12 Direct Transfer of the Transferred Assets from OPG or Subsidiary or Third Party
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1.12.1 Municipality acknowledges that while Bruce Power currently has the use of
the OPG Assets by virtue of the Lease, Bruce Power does not own them. It is
Bruce Power's present intention that the OPG Assets will be transferred to
Municipality directly by OPG or the appropriate Subsidiary at the written
direction of Bruce Power as contemplated in the OPG -Bruce Power
Agreement.
1.12.2 Bruce Power intends to obtain the required Third Party Easements by way of
agreements to grant easements from the owners of the appropriate lands and
that Bruce Power will direct such owners to grant the Third Party Easements
to Municipality in concert with Closing.
1.12.3 Municipality agrees to accept direct transfers of the OPG Assets and Third
Party Easements and acknowledges that whenever this Agreement provides
for the transfer of the Transferred Assets by Bruce Power to Municipality such
reference is to or includes a direct transfer of that Transferred Asset by OPG
or a Subsidiary or the third party owner, as the case may be, to Municipality
whether or not the reference specifically so provides.
1.12.4 The direct transfer of any Transferred Asset by OPG or a Subsidiary or a third
party owner to Municipality shall satisfy any obligation that Bruce Power has
to Municipality to transfer such Transferred Asset to Municipality.
1.12.5 Provided however that nothing in this section 1.12 shall prevent Bruce Power
from acquiring any Transferred Asset and thereafter transferring it to
Municipality in connection with the completion of the Transaction.
ARTICLE 2
THE DIVESTITURE
2.1 Background
2.1.1 Municipality acknowledges that in order to effect the Divestiture, Bruce
Power is negotiating an agreement with OPG and certain Subsidiaries (the
"OPG - Bruce Power Agreement ") whereby OPG and the Subsidiaries will,
among other things: (i) agree to transfer fee simple ownership to Sewage
Treatment Plant and the Water Tower to Bruce Power, or if Bruce Power so
directs, to Municipality, so that Municipality will thereafter own the Sewage
Treatment Plant, the Water Tower and the Pipes, and provide sewage
treatment services and the supply of industrial water to those Persons that are
receiving those service as of the Closing Date; and (ii) grant the benefit of the
OPG Easements to Bruce Power, or if Bruce Power so directs, to
Municipality.
2.1.2 The Parties acknowledge that Bruce Power has agreed with OPG that Bruce
Power will have carriage of the Divestiture insofar as negotiations and other
dealings with Municipality are concerned but the Parties acknowledge that
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their mutual co- operation will be required in order co- ordinate and affect the
Divestiture.
2.1.3 The Parties agree that the completion of the Transaction will occur
contemporaneously with the closing of the transactions contemplated in the
OPG -Bruce Power Agreement.
2.1.4 If requested by Bruce Power, Municipality agrees that the Transaction may be
closed in escrow contemporaneously with a similar escrow closing of the
transaction under the OPG -Bruce Power Agreement it being the intention that
if all matters required in connection with both closings are completed or
satisfied, both transactions will be released from escrow at the same time.
2.2 Operations During Interim Period
During the Interim Period:
2.2.1 Operation of Transferred Assets The Transferred Assets shall continue to be
operated and maintained prior to Closing in substantially the same manner as
heretofore conducted.
2.2.2 Additional Agreements Except as provided in section 2.3.2 Bruce Power shall
not enter into, nor assume, any new contracts that Municipality would
otherwise be required to assume or that affect the Transferred Assets, except:
a) purchases and sales of inventory in the ordinary course consistent with
prior practice that Municipality will not be required to assume; and
b) contracts that may be terminated upon not more than 30 days notice at
no cost to Municipality.
2.2.3 Insurance Any insurance maintained by Bruce Power will not be transferred to
Municipality on Closing, and Municipality shall be responsible for arranging
its own insurance from and after Closing. Municipality shall in no event and
at no time have any interest in any insurance policy maintained by Bruce
Power or in any proceeds thereof. As between Bruce Power and Municipality,
Bruce Power shall not have any obligation to maintain any insurance.
2.3 Assumed Contracts
2.3.1 On Closing, Bruce Power shall assign, and Municipality shall assume, all the
respective right, title and interest of Bruce Power under the Assumed
Contracts in accordance with the terms of the form of assignment and
assumption agreement attached as Schedule 2.3.
2.3.2 During the Interim Period:
a) Bruce Power may terminate any Assumed Contract.
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b) Bruce Power will not enter into any new contract that will be treated as
an Assumed Contract without Municipality's prior written consent
such consent not to be unreasonably withheld or delayed. It will be
unreasonable for Municipality to refuse consent if the contract in
question is or is effectively on the same terms and conditions as to
price and term as any Assumed Contract existing as of the Agreement
Date. Municipality will respond to Bruce Power's request for consent
within ten (10) days of receipt failing which Municipality will be
deemed to have provided the required consent.
c) If on Closing any counterparty to Bruce Power in an Assumed
Contract is bankrupt Bruce Power shall not be required to assign such
Assumed Contract to Municipality, unless the trustee in bankruptcy
has adopted the Assumed Contract.
d) Notwithstanding the Closing of the Transaction Bruce Power shall be
entitled to pursue any counterparty to an Assumed Contract for any
amounts owing to Bruce Power by the counterparty on the Closing.
Municipality will co- operate with Bruce Power in the collection of
amounts owing to Bruce Power. Municipality will be entitled to apply
any payments it receives after Closing from a counterparty to amounts
owing to Municipality by the counterparty under the Assumed
Contract to the extent the amount is not tendered in connection with a
period prior to the Closing in which case Municipality will remit such
amount to Bruce Power.
e) Bruce Power may enter into amending agreements with a counterparty
to an Assumed Party to remove any reference in the Assumed Contract
to nuclear liability effective on the Closing Date.
2.4 Water Supply and Sewage Treatment Allocation Agreement
On Closing, the Parties will enter into a water and sewage service agreement substantially in the
form attached as Schedule 2.4 ( "Water and Sewage Service Agreement ").
2.5 Approvals
Municipality shall be responsible for obtaining any required Approvals.
2.6 Easements
2.6.1 The Parties acknowledge that the Easements will be required in order to
provide the sewage treatment and industrial water services. As between Bruce
Power and Municipality, Bruce Power will arrange for the preparation of
reference plan surveys to illustrate the location of the Pipes associated with
the Easements and to provide a registerable legal description for the
Easements.
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2.6.2 The OPG Easements will be subject to an easement agreement substantially in
the form attached as Schedule 2.6.2.
2.6.3 The Third Party Easement will to the extent Bruce Power is able to negotiate
them be substantially in form attached as Schedule 2.6.3.
2.6.4 Bruce Power will postpone its interest in the Leased Premises granted by the
Lease to the OPG Easements.
2.6.5 On Closing Bruce Power will obtain a release and conveyance in favour
Municipality of all of OPG's or a Subsidiary's respective right title and
interest, if any, in all Pipes located in or associated with the Easements.
2.6.6 If the Easements provide that the transferee or its designee may enter and
remove steam lines and related equipment ( "Steam Equipment ") from the
transferor's lands, Municipality, if requested by Bruce Power, shall designate
Bruce Power as its designee for the removal of the Steam Equipment. Such
removal shall be conducted in accordance with any applicable requirements of
the Easement at Bruce Power's expense. Bruce Power shall indemnify and
hold Municipality harmless from Claims of the transferor for injury to persons
(including death) and damage to tangible personal property or the transferor's
lands occasioned by the negligence or wilful misconduct of Bruce Power in
connection with the removal of the Steam Equipment by Bruce Power. This
provision shall not merge on Closing but shall survive Closing indefinitely or
for the maximum period permitted by Applicable Law.
2.6.7 Municipality agrees that from and after Closing it will conduct its operations
so as not to interfere with the rights of HONI under the HONI Easement and
that it and those for whom it is responsible in law shall not do or omit to do
anything that would, or with the passage of time, would put Bruce Power
(who has assumed the rights and obligations of OPG or a Subsidiary under the
HONI Easement) or OPG or the Subsidiaries in breach of their obligations
under the HONI Easements and Municipality shall indemnify and hold Bruce
Power, OPG and the Subsidiaries harmless from any Claim that is asserted or
made against Bruce Power or OPG or the Subsidiaries directly or indirectly in
any way pertaining to, connected with or arising out of a breach of this section
2.6.7 by Municipality or those for whom it is responsible in law and this
section 2.6.7 shall not merge on Closing but shall survive Closing indefinitely
or for the maximum period permitted by Applicable Law.
2.6.8 Municipality agrees that from and after Closing it will conduct its operations
insofar as it concerns the Easements in accordance with the terms and
conditions of any agreement that pertains to the Easements so as not to
interfere with the rights of the other counterparties to such agreements and
Municipality shall indemnify and hold Bruce Power, OPG and the
Subsidiaries harmless from any Claim that is asserted or made against Bruce
Power or OPG or the Subsidiaries directly or indirectly in any way pertaining
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to, connected with or arising out of a breach of this section 2.6.8 by
Municipality or those for whom it is responsible in law and this section 2.6.8
shall not merge on Closing but shall survive Closing indefinitely or for the
maximum period permitted by Applicable Law.
2.7 Partial Surrender of Lease
On Closing Bruce Power will partially surrender the Lease and the Sublease as each pertains to
the Sewage Treatment Plant and the Water Tower and will obtain from OPG a partial surrender
of the head lease between OPG and the Subsidiary that owns the Sewage Treatment Plant as the
head lease pertains to the Sewage Treatment Plant.
2.8 HONI Consents
Bruce Power shall obtain all consents or approvals that may be required to be obtained from
HONI in connection with the Easements or otherwise in connections with the Transaction.
2.9 Operating Agreements
Municipality will not be required to assume any Operating Agreements on Closing.
2.10 Sewage Treatment Agreements
2.10.1 Municipality confirms that:
a) it is the successor to each municipality that is a counterparty to each of
the Sewage Treatment Agreements;
b) it has the authority to terminate the Sewage Treatment Agreements;
c) to the best of its knowledge, save and except for this Agreement, the
OPG -Bruce Power Agreement, the Water and Sewage Service
Agreement, the OPG Assumption Agreement and any other
agreements or acknowledgements entered into in connection with the
Transaction, there are no other agreements to which it or any
predecessor municipality is a party that concerns the Sewage
Treatment Plant, the Water Tower or the Pipes ( "Other
Agreements ").
2.10.2 On Closing, Municipality will deliver an acknowledgement addressed to
Bruce Power and OPG and its Subsidiaries confirming that the Sewage
Treatment Agreements are terminated as of Closing and that should any Other
Agreements subsequently be discovered it will not enforce any Other
Agreement against Bruce Power, OPG or its Subsidiaries.
2.11 Air Monitoring Station Licence
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Municipality acknowledges that an air monitoring station and equipment used in connection
therewith required in connection with Bruce Power's operations occupies a portion of the
Sewage Treatment Plant ( "Air Monitoring Station "). On Closing, the Parties will enter into a
licence agreement substantially in the form attached as Schedule 2.11 ( "Air Monitoring Station
Licence ").
2.12 Costs and Expenses
Except as specifically provided to the contrary in this Agreement, each Party shall be responsible
for its own legal, accounting and other professional fees in connection with this Agreement and
the Transaction. Without limiting the generality of the foregoing, as between Municipality and
Bruce Power, Bruce Power shall prepare or cause to be prepared at its expense the transfers and
assignments required to be delivered pursuant to this Agreement and Municipality shall be
responsible at its expense for registering any such assignments and transfers and for all costs of
any investigation and due diligence conducted by Municipality.
2.13 Sludge
Municipality agrees to assume and be responsible for all costs related to the removal of Sludge
from and after Closing.
2.14 RSC
Subject to obtaining the necessary co- operation of OPG as owner of the Sewage Treatment Plant
lands, Bruce Power will use Commercially Reasonable Efforts to have a RSC for the Sewage
Treatment Plant lands filed in the environmental site registry maintained by the Ontario Ministry
of the Environment on or before Closing failing which Bruce Power shall continue such efforts
following Closing to have the RSC filed as aforesaid. For clarity, this provision shall not be a
condition of Closing but shall survive Closing.
ARTICLE 3
DUE DILIGENCE
3.1 Due Diligence Investigations
3.1.1 To assist Municipality in its due diligence, during the Due Diligence Period,
Bruce Power shall to the extent not already done prior to the Agreement Date:
a) provide Municipality with copies of, or access to, the Assumed
Contracts, the Phase II ESA and all other material files, records,
reports, correspondence within its possession or control pertaining to
the Transferred Assets (the "Property Information ") for review; and
b) subject to the provisions of the OPG -Bruce Power Agreement in that
regard, provide Municipality and Municipality's Representatives with
access to the Leased Premises at all reasonable times to the extent
required to permit Municipality to conduct non - intrusive inspections of
the Transferred Assets. Such access shall: (i) be subject to Bruce
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Power's security requirements and policies concerning the Leased
Premises; (ii) be escorted; (iii) not interfere with the operations of
Bruce Power or its contractors or OPG at the BNPD; and (iv) not
interfere with the operations of HONI or the HONI Easement.
Municipality will forthwith repair any physical or other damage
caused by the actions of Municipality's Representatives and restore the
Transferred Assets to their condition prior to the damage.
3.1.2 Municipality acknowledges that Bruce Power has made available to
Municipality, or has caused to be made available to Municipality, the Property
Information without any representation or warranty as to the completeness or
accuracy of the data or information contained in the Property Information.
Municipality acknowledges that any Property Information has been furnished
to Municipality solely as a courtesy, and Bruce Power has verified neither the
accuracy of any statements or other information therein contained nor the
qualifications of the persons preparing such Property Information. Bruce
Power does not warrant the accuracy of any Property Information but
confirms that it has not knowingly provided data that it knows or believes is
inaccurate or misleading. Municipality acknowledges that any decision on its
part to proceed with the Transaction will be based solely upon its own
investigations and not upon any statement or opinion by Bruce Power, OPG,
or any agent of Bruce Power or OPG.
3.1.3 Municipality agrees to indemnify, protect and save Bruce Power, OPG and the
Subsidiaries harmless, both before and after Closing or other termination of
this Agreement, from and against any and all Claims arising directly or
indirectly, from the inspections of the Transferred Asset by Municipality and
Municipality's Representatives.
3.2 Information from Governmental Authorities
Notwithstanding anything else herein contained, Municipality shall not request, authorize nor
arrange any inspections of the Transferred Assets by any Governmental Authority, or
representatives, contractors or agents thereof provided that this shall not preclude Municipality
from: (i) requesting information from any Governmental Authority that the Governmental
Authority may have on file concerning the Transferred Assets; (ii) sharing information with the
Ministry of the Environment and its consulting engineer for the purpose of obtaining a certificate
of approval for the Transferred Assets; or (iii) authorizing any inspection that a Governmental
Authority is requiring in connection with any Approval required to operate the Transferred
Assets. Upon written request of Municipality, Bruce Power will execute and deliver to
Municipality's solicitors an authorization authorizing a Governmental Authority to release
information in their records concerning the Transferred Assets to Municipality's Representatives.
3.3 Due Diligence Condition
Municipality's obligation to complete the Transaction shall be conditional upon Municipality
satisfying itself in its sole and absolute discretion, on or before 5:00 p.m. on the Due Diligence
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Cut -Off Date, with its due diligence investigations (including, without limitation, title to the
Transferred Assets and the Permitted Encumbrances). If Municipality:
3.3.1 is not satisfied with its due diligence investigations it may deliver Notice to
Bruce Power on or before 5:00 p.m. on the Due Diligence Cut -Off Date so
advising Bruce Power and exercising its rights hereunder to terminate this
Agreement ( "Municipality's Termination Notice ") whereupon this
Agreement shall be automatically terminated and the obligations of
Municipality and Bruce Power under this Agreement shall be at an end;
3.3.2 is satisfied with its due diligence at any time during the Due Diligence Period
Municipality may deliver Notice to Bruce Power so advising Bruce Power
( "Satisfaction Notice ") whereupon Municipality shall be deemed to have
waived its rights to terminate this Agreement pursuant to this section 3.3; or
3.3.3 does not deliver either a Municipality's Termination Notice or Satisfaction
Notice to Bruce Power on or before 5:00 p.m. on the Due Diligence Cut -Off
Date, then Municipality shall be deemed to have delivered a Satisfaction
Notice to Bruce Power prior to 5:00pm on the Due Diligence Cut Off Date
thereby waiving its rights under this section 3.3 to terminate this Agreement.
3.4 Due Diligence Condition — Phase II ESA
Notwithstanding section 3.3, if the Phase II ESA is not available within 2 days of the Execution
Date then in order for Municipality to have sufficient time to consider the Phase II ESA, the
following shall apply with respect to the Phase II ESA:
3.4.1 The Due Diligence Cut -Off Date for the Phase II ESA, and for clarity, only
the Phase II ESA, shall be 5 days from the date that the Phase II ESA is
delivered to Municipality by Bruce Power ( "Phase II ESA Due Diligence
Cut -Off Date ").
3.4.2 Municipality's obligation to complete the Transaction shall be conditional
upon Municipality being satisfied in its sole and absolute discretion, on or
before 5:00 p.m. on the Phase II ESA Due Diligence Cut -Off Date, with the
results of the Phase II ESA. If Municipality:
a) is not satisfied with the results of the Phase II ESA it may on Notice to
Bruce Power given on or before 5:00 p.m. on the Phase II ESA Due
Diligence Cut -Off Date terminate this Agreement ( "Phase II ESA
Termination Notice ") whereupon this Agreement shall be
automatically terminated and the obligations of Municipality and
Bruce Power under this Agreement shall be at an end;
b) is satisfied with the results of the Phase II ESA it may at any time prior
to the Phase II ESA Due Diligence Cut -Off Date deliver Notice to
Bruce Power so advising Bruce Power ( "Phase II ESA Satisfaction
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Notice ") whereupon Municipality shall be deemed to have waived its
rights to terminate this Agreement pursuant to this section 3.4; or
c) does not deliver either a Phase II ESA Termination Notice or Phase II
ESA Satisfaction Notice to Bruce Power on or before 5:00 p.m. on the
Phase II ESA Due Diligence Cut -Off Date, then Municipality shall be
deemed to have delivered a Phase II ESA Satisfaction Notice to Bruce
Power prior to 5:00 pm on the Phase II ESA Due Diligence Cut Off
Date thereby waiving its rights to terminate this Agreement under this
section 3.4.
3.4.3 Section 3.3 shall continue to apply to all other aspects of Municipality's due
diligence in connection with the Transferred Assets.
ARTICLE 4
AS—IS — WHERE -IS
4.1 As -is — Where -is
Municipality expressly acknowledges that the Transferred Assets will be transferred and
accepted "as -is, where -is," and will be accepted without any express or implied representation or
warranty, covenant or condition on the part of Bruce Power, OPG or the Subsidiaries or any
Person on their behalf having apparent authority to bind them, including any representation or
warranty, covenant or condition as to, allowable uses of, the physical condition of or any other
aspect of the Transferred Assets and that Municipality, by the expiration of the Due Diligence
Period, shall have conducted such inspections of the Transferred Assets as it deems appropriate
and satisfied itself with regard to all matters relating to the Transferred Assets. Without limiting
the generality of the foregoing, but subject to section 10.3 the Transferred Assets are specifically
offered as same exist on the Closing Date, with no adjustment to be allowed to Municipality for
any change in condition, quality or quantity of the Transferred Assets during the Interim Period.
4.2 Waiver
As part of Municipality's agreement to purchase and accept the Transferred Assets "AS - IS,
WHERE - IS ", and not as a limitation on such agreement, Municipality hereby unconditionally
and irrevocably waives any and all actual or potential rights Municipality might have against
Bruce Power, OPG or the Subsidiaries regarding any form of warranty, express or implied, of
any kind or type, relating to the physical condition and status of the Transferred Assets. Such
waiver is absolute, complete, total and unlimited in every way. Such waiver includes, but is not
limited to, a waiver of express warranties, implied warranties, warranties of fitness for a
particular use, warranties of merchantability, warranties of habitability, warranties of
enforceability, strict liability rights, and claims of every kind and type, including, but not limited
to, claims regarding defects which might have been discoverable, claims regarding defects which
were not or are not discoverable, product liability claims, product liability type claims, and all
other extant or later created or conceived of strict liability or strict liability type claims and
rights, provided that, as between Bruce Power and Municipality, nothing in this Agreement will
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prejudice the rights of Municipality pursuant to section 7.7 of the Water and Sewage Service
Agreement.
4.3 Release
Effective on the Closing or termination of this Agreement, to the fullest extent permitted by law,
Municipality hereby releases, discharges and forever acquits the Indemnified Persons from all
Claims which Municipality may suffer or incur relating to the Transferred Assets or any other
aspect of the Transferred Assets, or any defect related thereto, other than in respect of any breach
of the representations and warranties of Bruce Power in this Agreement. Without limitation,
Municipality hereby agrees, represents and warrants that the matters released herein are not
limited to matters that are known or disclosed. In this connection and to the extent permitted by
law, Municipality hereby agrees, represents and warrants that Municipality realizes and
acknowledges that factual matters now unknown to it may have given or may hereafter give rise
to causes of action, Claims and controversies which are presently unknown, unanticipated and
unsuspected, and Municipality further agrees, represents and warrants that the waivers and
releases herein have been negotiated and agreed upon in light of that realization and that
Municipality nevertheless hereby releases, discharges, and acquits, and, pursuant to section 4.4,
indemnifies and saves Bruce Power and the other Indemnified Persons from any known or
unknown causes of action, claims, demands, debts, controversies, damages, costs, losses and
expenses which might in any way be included in the waivers and matters released as set forth in
this section 4.3. The provisions of this section 4.3 are material and have been included as a
material portion of the consideration given to Bruce Power by Municipality in exchange for
Bruce Power's performance hereunder.
4.4 Indemnity
From and after the Closing Date Municipality agrees to indemnify and hold harmless the
Indemnified Persons from:
4.4.1 any and all Claims (except to the extent such Claims are caused or contributed
to by any post Closing acts or omissions of Bruce Power) directly or indirectly
in any way pertaining to, connected with or arising out of the Transferred
Assets;
4.4.2 any and all Claims by HONI in any way pertaining to, connected with or
arising out of a breach by Municipality or those for whom it is in law
responsible of the terms and conditions of the HONI Easement or for any
interference with HONI's use and enjoyment of the HONI Easement or any
damage to the tangible personal property of HONI located in or used in
connection with the HONI Easement due to the wilful misconduct or
negligence of Municipality or those for whom it is in law responsible;
4.4.3 any and all Claims asserted against the Indemnified Persons directly or
indirectly by those having an interests or business in BEC or in any way
related to contractual obligations to provide Water or sewage services past,
present or future;
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provided that the indemnities in this section 4.4 shall not apply to any Claim made by Bruce
Agra Dehy Inc. or any successor or assign of Bruce Agra Dehy Inc. or any of their successors or
assigns.
4.5 Benefit of the Waiver, Release and Indemnity
Municipality acknowledges that Bruce Power shall hold the benefit of any indemnities, releases
and covenants in this Agreement intended to benefit any Person other than Bruce Power,
including the benefit of sections 2.1.1, 2.6.7, 2.6.8, 3.1, 4.1, 4.2, 4.3, 4.4 and Article 9 as they
pertain to OPG or any other Person referred to therein but not a Party or signatory to this
Agreement in trust for the benefit of such Persons and that any of the foregoing provisions and
any other indemnity, release or covenant provided in favour of Bruce Power in this Agreement,
unless specifically provided to the contrary, shall be enforceable by such Person against
Municipality and shall not merge on Closing but shall survive Closing indefinitely or for the
maximum period permitted by Applicable Law.
4.6 Bruce Power Contribution
The Parties acknowledge that a condition assessment report prepared by BM Ross and
Associates Limited, known as BEC Waste and Waste Water Infrastructure Review, dated August
12, 2009 pertaining to the Transferred Assets prepared for Bruce Power ( "Ross Report") and
Municipality has identified certain deficiencies or repairs that it would be prudent be made to the
Transferred Assets. To assist Municipality, Bruce Power will pay to Municipality on Closing if
the Transaction is completed the sum of three hundred thousand ($300,000) dollars (the "Bruce
Power Contribution ") towards the cost of work identified in the Ross Report and without
admitting that Bruce Power has any obligation with respect to the condition of the Transferred
Assets and with out detracting from the "as- is "- "where -is" nature of the Transaction, the Bruce
Power Contribution shall be the accepted by Municipality in full satisfaction of any Claim that it
may have in connection with or arising out of this Agreement.
ARTICLE 5
THE TRANSACTION, CLOSING, CONDITIONS OF CLOSING
5.1 The Transaction
On and subject to the terms of this Agreement and for the Transfer Fee Bruce Power agrees to
transfer and /or direct OPG and/or the Subsidiaries to transfer the Transferred Assets to
Municipality on Closing on an "as -is ", "where -is" basis as set forth herein free and clear of all
Encumbrances save for Permitted Encumbrances.
5.2 Adjustments to the Transfer Fee
The Transfer Fee shall be subject to any adjustments as are agreed upon by the Parties.
5.3 Closing
The Transaction will be completed on the Closing Date or such other date as the Parties may
agree in writing in which case such other date shall be the "Closing Date ".
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5.4 Expiration Date
If Closing has not occurred on or before June 29,2012 (the "Expiration Date ") then any Party
may terminate this Agreement upon Notice to the other Party whereupon and the obligations of
Municipality and Bruce Power under this Agreement shall be at an end.
5.5 Termination
Bruce Power may terminate this Agreement for convenience at anytime upon Notice to
Municipality whereupon the obligations of Municipality and Bruce Power under this Agreement
shall be at an end.
5.6 Bruce Power Conditions
The obligation of Bruce Power to complete the Transaction shall be subject to the fulfilment of
the following terms and conditions, on or before the Closing which terms and conditions are for
the exclusive benefit of Bruce Power and which may be waived, in whole or in part, only by
Bruce Power:
5.6.1 The Board of Directors of Bruce Power and of BALP having approved the
Transaction and the transaction pursuant to the OPG -Bruce Power Agreement.
5.6.2 The representations and warranties of Municipality set forth herein shall be
true, correct and complete in every material particular.
5.6.3 All of the material covenants of Municipality to be complied with or
performed by Municipality on or before the Closing shall have been duly
complied with or performed.
5.6.4 Each of the deliveries to be made by Municipality to Bruce Power under
section 5.9 hereof shall have been duly made.
5.6.5 The OPG -Bruce Power Agreement shall be in full force and effect.
5.6.6 The transactions contemplated in the OPG -Bruce Power Agreement being
completed in concert with the completion of the Transaction.
If any condition in this section 5.6 is not fulfilled or performed at or prior to Closing or is not
waived in whole or in part by Bruce Power, Bruce Power may by Notice to Municipality,
terminate this Agreement and the obligations of Municipality and Bruce Power under this
Agreement will be at an end.
5.7 Municipality Conditions of Closing
The obligation of Municipality to complete the Transaction shall be subject to the fulfilment of
the following terms and conditions, on or before the Closing which terms and conditions are for
the exclusive benefit of Municipality and which may be waived, in whole or in part, only by
Municipality:
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5.7.1 The representations and warranties of Bruce Power set forth herein shall be
true, correct and complete in every material particular.
5.7.2 All of the material covenants of Bruce Power be complied with or performed
by Bruce Power on or before the Closing shall have been duly complied with
or performed.
5.7.3 Each of the deliveries to be made by Bruce Power to the OPG under
section 5.9 hereof shall have been duly made.
If any condition in this section 5.7 is not fulfilled or performed at or prior to Closing or is not
waived in whole or in part by Municipality, Municipality may by Notice to Bruce Power,
terminate this Agreement and the obligations of Bruce Power and Municipality under this
Agreement shall be at an end.
5.8 Mutual Condition
The obligations of Municipality and Bruce Power to complete the Transaction will be
conditional upon each being satisfied that LIUNA, PWU and UA will not claim successor rights
in connection with the operation of the Transferred Assets following Closing. Each Party agrees
that such condition shall be satisfied by the provision of and delivery of on or before Closing of
an agreement from each of LIUNA, PWU and UA substantially in the forms set out at Schedule
5.8.
5.9 Closing Deliveries
As appropriate given the nature of the Closing Delivery, the Parties agree to execute and/or
deliver to each other on Closing the Closing Deliveries, all in form and substance satisfactory to
the Parties and their respective solicitors acting reasonably. Without limiting the generality of
the foregoing, the Closing Deliveries shall include:
5.9.1 one or more transfers /deeds whereby the registered title to the Sewage
Treatment Plant and the Water Tower is transferred to and, to the extent
required, the benefit of the OPG Easements and the Third Party Easements
are granted to Municipality;
5.9.2 partial surrenders of the Lease and sublease entered into by Bruce Power and
BALP with respect to part of the BNPD ( "Sublease ") as each pertains to the
Sewage Treatment Plant and the Water Tower;
5.9.3 a partial surrender of the head lease between OPG and the Subsidiary that
owns the Sewage Treatment Plant lands as it pertains to the Sewage Treatment
Plant;
5.9.4 a general conveyance from the OPG and/or the appropriate Subsidiary
conveying all of their right, title and interest in and to OPG Assets to
Municipality on an "as -is ", "where -is" basis as set forth herein;
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5.9.5 a direction re title;
5.9.6 original executed copies of the then current Assumed Contracts referred to in
1.1.7;
5.9.7 notice of assignment of the Assumed Contracts addressed to the customers;
5.9.8 to the extent available, written acknowledgements addressed to Bruce Power,
BALP, OPG and the Subsidiaries and Municipality from the then current
customers under the Assumed Contracts acknowledging, among other things,
that the Assumed Contact is in full force and effect, unamended (other than to
confirm that the provisions relating to nuclear liability shall cease to have
effect on Closing) and otherwise in good standing and that there is no default
on the part of Bruce Power under the Assumed Agreement and releasing
Municipality from any liability in connection with the Assumed Contract for
matters arising prior to the Closing Date and to the extent not available
Municipality agrees to accept a certificate from an officer of Bruce Power
confirming the matters referred to in this section 5.9.8;
5.9.9 if required by the terms of any of the Permitted Encumbrances, an assignment
and assumption agreement of that Permitted Encumbrance;
5.9.10 a document registration agreement authorized by the Parties and entered into
by the solicitors for the Parties to provide for electronic registration of the
Closing Deliveries to be registered on title to the assets described in section
5.9.1 on Closing;
5.9.11 any required HONI Consents;
5.9.12 certified copy of Municipality's by -law authorizing the Transaction.
5.9.13 a statement of adjustments, if applicable;
5.9.14 a mutual undertaking to adjust any errors or omissions in the statement of
adjustments;
5.9.15 an affidavit or statutory declaration of a senior officer of OPG and the
Subsidiaries confirming that OPG and the Subsidiaries are not non - resident
persons within the meaning of Section 116 of the Income Tax Act (Canada);
5.9.16 a certificate of each Party completed on the Closing Date, confirming that
such Party's covenants, warranties and representations contained herein
continue to be true and accurate as at the Closing Date;
5.9.17 an affidavit or statutory declaration of a senior officer of Bruce Power
confirming that Bruce Power is not a non - resident person within the meaning
of Section 116 of the Income Tax Act (Canada);
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5.9.18 an executed copy of the Water and Sewage Service Agreement;
5.9.19 an executed copy of the OPG Assumption Agreement;
5.9.20 a certified cheque or bank draft payable to Municipality for the Bruce Power
Contribution or an electronic transfer of same;
5.9.21 such further documentation relative to the completion of the Transaction as
may be referred to elsewhere in this Agreement or as a Party or their solicitors
may reasonably require, or as may be required by law;
5.9.22 the Phase II ESA for the land comprising the Sewage Treatment Plant;
5.9.23 subject to section 2.14, an RSC for the Sewage Treatment Plant lands or
evidence that the RSC has been filed in the Environmental Site Registry
maintained pursuant to the Environmental Protection Act (Ontario);
5.9.24 the Air Monitoring Station Licence;
5.9.25 copy of notice to current operator of the Sewage Treatment Plant terminating
the Operating Agreement;
5.9.26 assignment and assumption of the HONI Licence.
ARTICLE 6
COOPERATION, DISPUTE RESOLUTION
6.1 Co- operation
Each Party shall co- operate with the other Party to the extent reasonably necessary to permit and
facilitate the completion of the Transaction and the transactions contemplated in the OPG -Bruce
Power Agreement.
6.2 Company Representative
Bruce Power and Municipality shall each appoint, from time to time, a representative (a
"Representative "), each of whom shall be duly authorized to act on behalf of the Party that has
made the appointment, and with whom the other Party may consult at all reasonable times, and
whose written instructions, requests, and decisions shall be binding on the appointing Party as to
all matters pertaining to this Agreement; provided, however, that the Representatives shall not
have the authority to amend this Agreement.
6.3 Dispute Resolution
Any disagreement as to the interpretation of this Agreement or a Party's performance or non-
performance under this Agreement (a "Dispute ") at first instance shall be addressed by the
respective Representatives. If no resolution is forthcoming within a reasonable period then any
Party may escalate the Dispute to the appropriate senior management of the Parties. Senior
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management will engage in negotiations with a view to reach a settlement of the issue but if no
settlement is forthcoming within 30 days of submission of the Dispute to senior management the
Parties shall be free to exercise whatever remedies are available to them under this Agreement or
at law. Nothing in this section 6.3 shall prevent or delay a Party from resorting to its other
remedies if it bona fide believes that it will be prejudiced by any delay inherent in the dispute
resolution procedure provided for in this section 6.3.
6.4 Equitable Remedies
Notwithstanding anything in this Agreement either Party may seek equitable remedies without
proceeding to the dispute resolution process (including arbitration) otherwise provided for in this
Article.
ARTICLE 7
REPRESENTATIONS AND WARRANTIES
7.1 Representations and Warranties of Bruce Power
Bruce Power represents and warrants to Municipality that:
7.1.1 subject to obtaining Board approval as provided for elsewhere in this
Agreement, this Agreement has been duly authorized, executed and delivered
by Bruce Power and is a valid and binding obligation of Bruce Power
enforceable in accordance with its terms, subject to the usual exceptions as to
bankruptcy and the availability of equitable remedies;
7.1.2 to the best of its knowledge and belief based upon a review of its records and,
with respect to the Sewage Treatment Plant, relying on the Phase II ESA, it is
not aware of any release of Hazardous Substances having occurred at the
Water Tower or the Sewage Treatment Plant since the commencement of and
during the term of the Lease. In this section "Hazardous Substances" means:
a) any petrochemical or petroleum products, oil or coal ash, radioactive
materials, radon gas, asbestos in any form that is friable, urea
formaldehyde foam insulation and transformers or other equipment
that contains dielectric fluid which may contain levels of
polychlorinated biphenyls; and
b) any chemicals, materials or substances defined as or included in the
definition of "hazardous substances," "hazardous wastes," "hazardous
materials," "hazardous constituents," "restricted hazardous materials,"
"extremely hazardous substances," "toxic substances," "deleterious
substances," "contaminants," "pollutants," "toxic pollutants" or words
of similar meaning and regulatory effect under any Applicable Law
relating to the environment; and
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c) any other material or substance, exposure to which is prohibited,
limited or regulated by any Applicable Law relating to the
environment;
and acknowledges that Municipality is relying on such representations and warranties in entering
into this Agreement.
7.2 Representations and Warranties of Municipality
Municipality represents and warrants to Bruce Power that the execution and delivery of this
Agreement and the performance of Municipality's obligations hereunder and any agreement
referred to herein have been duly approved and authorized by one or more by -laws of
Municipality and that this Agreement and any other agreement referred to herein to which
Municipality is a party are otherwise binding obligations of Municipality enforceable in
accordance with their terms.
ARTICLE 8
CONFIDENTIALITY
8.1 Confidentiality
8.1.1 The Parties agree that this Agreement and any information provided or made
available by, or on behalf of, Bruce Power to Municipality with respect to the
Transaction and the OPG -Bruce Power Agreement and the transactions
contemplated therein, including the Property Information (other than maps,
surveys, plans, title reports and other documents and instruments that are a
matter of public record) shall be considered as "Confidential Information"
irrespective of whether such items and their contents are so specifically
identified by Bruce Power as Confidential Information.
8.1.2 Without Bruce Power's prior written consent, Municipality:
a) shall not divulge to any third party any of the Confidential Information
and shall not use the Confidential Information in Municipality's
business prior to the Closing or otherwise, except in connection with
its acquisition of the Transferred Assets;
b) shall ensure that the Confidential Information is disclosed only to such
of Municipality's officers, directors, employees, consultants and
solicitors, as have actual need to know the Confidential Information;
c) shall act diligently to prevent any further disclosure of the Confidential
Information; and
d) shall promptly return to Bruce Power (without keeping copies) all
Confidential Information if the Closing does not occur,
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8.1.3 Municipality shall be responsible for ensuring that Persons to whom it is
entitled to disclose Confidential Information also comply with the
confidentiality obligations of this Agreement.
8.1.4 Notwithstanding anything contained in this Agreement to the contrary, Bruce
Power may share with OPG, its solicitors and other advisors copies of this
Agreement and all other Transaction documents that Bruce Power acting
reasonably deems necessary to complete the negotiation of this Agreement
and the OPG -Bruce Power Agreement and to complete the Transaction and
the transactions contemplated in the OPG -Bruce Power Agreement.
8.1.5 Notwithstanding anything contained in this Agreement to the contrary, Bruce
Power acknowledges that Municipality may have to make this Agreement
(and Schedules hereto) public in connection with obtaining council approval
for the Transaction.
8.1.6 Notwithstanding the foregoing, Bruce Power acknowledges that Municipality
is subject to the Municipal Freedom of Information and Protection of Privacy
Act (Ontario) ( "MFIPPA ") and that Municipality may be required to disclose
Confidential Information pursuant to an information request for such
Confidential Information. In this regard, Bruce Power considers the
Confidential Information to be confidential commercial, fmancial, scientific,
technical and/or labour relations information and /or contain trade secrets of
Bruce Power and that its disclosure could reasonably be expected to cause
material financial loss to Bruce Power, prejudice its competitive position or
interfere with negotiations in which it is engaged. Accordingly, Municipality
will provide Bruce Power with the opportunity to object to the release of any
Confidential Information in accordance with the provisions of MFIPPA.
ARTICLE 9
TAXES
9.1 Transfer Taxes
As between Bruce Power, OPG and any Subsidiary and Municipality, Municipality shall pay any
and all taxes and fees including sales tax, GST/HST, land transfer tax and registration fees
( "Transfer Taxes ") which are payable in connection with the transfer of the Transferred Assets
to Municipality. Without limiting the generality of the foregoing, if the transfer of the
Transferred Assets is subject to GST /HST levied pursuant to the Excise Tax Act (Canada), then
GST/HST shall be in addition to, and not included in, the Transfer Fee, and shall be collected
and remitted in accordance with the Excise Tax Act (Canada). Municipality shall indemnify and
save harmless Bruce Power, OPG and any Subsidiary both before and after Closing, from all
Claims incurred directly or indirectly in connection with the assessment of Transfer Taxes in
respect of the transfer of the Transferred Assets and any failure by Municipality to pay them
when due or to file any election within the required reporting period.
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ARTICLE 10
GENERAL CONTRACT PROVISIONS
10.1 Limit of Liability
As between the Parties, neither Party shall have any liability to the other if this transaction does
not close for any reason, provided, however, that if the Transaction does not close due to the
fault or neglect of Municipality, Municipality will reimburse Bruce Power on demand for all
amounts that Bruce Power is obliged to pay OPG on account of OPG's outside counsel's fees
and disbursements in connection with the Transaction and the transactions contemplated in the
OPG -Bruce Power Agreement. All such amounts remaining unpaid for 30 days or more after
demand shall bear interest at the rate per annum equal to the rate of interest that Bruce Power's
principal bankers charge as their "prime rate" adjusted automatically for changes in such rate.
10.2 Notices
Any notice or other communication required or permitted to be given under this Agreement
(collectively, "Notice ") shall be in writing and shall be given by prepaid first class mail, by
facsimile or other means of electronic communication or by hand delivery as provided below.
Any Notice, if mailed by prepaid first class mail at any time other than during a general
discontinuance of postal service due to strike, lockout or otherwise, shall be deemed to have been
received on the fourth Business Day after the post marked date thereof. Any Notice, if sent by
facsimile or other means of electronic communication, shall be deemed to have been received on
the Business Day following the sending, or if delivered by hand, shall be deemed to have been
received at the time it is delivered to the applicable address noted below either to the individual
designated below or to an individual at such address having apparent authority to accept
deliveries on behalf of the addressee. Notice of change of address shall also be governed by this
section 10.2. In the event of a general discontinuance of postal service due to strike, lock -out or
otherwise, Notices shall be sent by facsimile or other means of electronic communication and
shall be deemed to have been received in accordance with this section 10.2. Notices shall be
addressed as follows:
i) If to Municipality, to:
Municipality of Kincardine
1475 Concession 5 RR #5
Kincardine Ontario N2Z 2X6
Attention: CAO
Telecopier number: (519) 396 -8288
with a copy to
Municipality of Kincardine
1475 Concession 5 RR #5
Kincardine Ontario N2Z 2X6
Attention: Public Works Department
Telecopier number: (519) 396 -8288
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with a copy to Municipality's counsel at:
Magwood, Van De Vyvere, Thompson & Grove - McClement
Barristers & Solicitors
215 Durham Street
Walkerton Ontario NOG 2V0
Attention: George C. Magwood
Telecopier number: (519)-881-3595
ii) if to Bruce Power, to:
Bruce Power L.P.
c/o Bruce Power Inc.
B10, 6 Floor
177 Tie Road, Municipality of Kincardine RR #2 Tiverton,
Ontario, NOG 2T0
Attention: Executive Vice - President and General Counsel
Telecopier number: (519) 361 1840
with a copy to Bruce Power's counsel at:
Gowling Lafleur Henderson LLP
1 First Canadian Place
Suite 1600, 100 King Street West
Toronto, Ontario M5X 1G5
Attention: Alan Dean
Telecopier number: (416) 862 -7661
Notwithstanding the foregoing, any Notice or other communication required or permitted to be
given by any Party pursuant to or in connection with any arbitration procedures contained in this
Agreement or in any Schedule to this Agreement (unless such Schedule otherwise provides) may
only be delivered by hand. The failure to send or deliver a copy of a Notice to counsel shall not
invalidate any Notice given under this section 10.2.
10.3 Risk Until Closing — Damage or Destruction
As between Bruce Power and Municipality, risk of loss or damage to the Transferred Assets
pending Closing shall remain with Bruce Power. If prior to Closing any of the Transferred
Assets is destroyed or substantially damaged either Party may elect to terminate this Agreement
on Notice to the other. If there is any dispute as to whether any Transferred Asset has been
destroyed or substantially damaged for the purposes of this section 10.3 such determination will
be made by Bruce Power in its sole and unfettered discretion. .
10.4 Planning Act Compliance
All of the mutual covenants, conditions, agreements and payments contained in this Agreement
shall be conditional upon compliance with the Planning Act (Ontario).
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10.5 No Brokerage Fees
The Parties each represent and warrant to the other that there are no commissions, finder's fees
or brokerage fees arising out of the transfer of the Transferred Assets contemplated by this
Agreement. Each Party agrees that if any claims should be made for commissions allegedly
arising from the execution of this Agreement or any transfer of the Transferred Assets to
Municipality by any person by reason of any acts of such party, such party will protect, defend,
indemnify and hold the other harmless from and against any and all losses, liabilities and
expenses in connection therewith.
10.6 Tender
Any tender of documents or money hereunder may be made upon either Party or their respective
solicitors on the day set for Closing. Monies may be tendered by a negotiable cheque certified
by a Canadian chartered bank or by an official bank draft drawn upon a Canadian chartered
bank.
10.7 Merger
The covenants, representations and warranties of the Parties contained in this Agreement shall
not merge on and shall survive the Closing for a period of two years or for such longer or other
period as may be specifically provided for in this Agreement for any particular covenant,
representation or warranty.
10.8 Time of the Essence
Time shall be of the essence of this Agreement.
10.9 Further Assurances
Each of the Parties shall promptly do, make, execute, deliver, or cause to be done, made,
executed or delivered, all such further acts, documents and things as the other hereto may
reasonably require from time to time for the purpose of giving effect to this Agreement and shall
use reasonable efforts and take all such steps as may be reasonably within its power to
implement to their full extent the provisions of this Agreement.
10.10 Assignment and Enurement
This Agreement shall enure to the benefit of, and be binding upon, Parties and their respective
successors and permitted assigns. No party to this Agreement may assign this Agreement without
the prior written consent of the other Parties.
10.11 Counterparts
This Agreement may be signed in counterparts, each of such counterparts shall constitute an
original document, and such counterparts, taken together, shall constitute one and the same
instrument.
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10A2 BALP
Municipality and Bruce Power acknowledge that BALP is executing this Agreement solely to
evidence its consent to the Transaction (to the extent that such consent is required) and so that it
obtains the direct benefit of any release or indemnity in its favour pursuant to this Agreement and
that otherwise BALP is not a Party to this Agreement.
[The Balance of this page has, been intentionally left blank. Signature page follows.]
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•
IN WITNESS WHEREOF:
The Municipality has caused this THE CORPORATION OF THE
Agreement to be signed by its respective MUNICI 'ALIT RDINE
duly authorized officers as of the 21 day of • esimi
March, 2012.
Larry Krae
Mayor
By: I ��
Murray Clarke
Chief Administrative Officer
Bruce Power and BALP have caused this
Agreement to be signed by their respective
duly authorized officers as of the 31 day
of March, 2012.
BRUCE POWER L.P., by its general BRUCE POWER A L.P., by its general
partner BRUCE POWER INC. partner BRUCE POWER A INC.
By: �r' By: , ' _
Duncan Hawthorne Duncan Hawthorne
Chief Executive Officer Chief Executive Officer
By: i watt By: M At" PAL
Brian G. Armstrong Q.C. Brian G. Armstrong Q.C.
Executive Vice President and General Executive Vice President and General
Counsel Counsel
BRUCE POWER
LAW DIVISION
Approved:
Date:171f4Cki
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Schedules
Schedule 1.1.7 - List of Assumed Contracts
Schedule 1.1.46 - Form of OPG Assumption Agreement
Schedule 1.1.66 - Sewage Treatment Agreements
Schedule 2.3 - Assignment and Assumption Agreement for the Assumed Contracts
Schedule 2.4 - Water and Sewage Service Agreement
Schedule 2.6.2 - Form of OPG Easement Agreement
Schedule 2.6.3 - Form of Third Party Easement
Schedule 2.11 - Air Monitoring Station Licence
Schedule 5.8 - Form of Agreements with LIUNA, PWU and UA
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SCHEDULE 1.1.7
LIST OF ASSUMED CONTRACTS
1. Bi -Ax International Inc.
2. Greenfield Ethanol Inc.
3. Steelback Brewery Inc.
4. PWU Training Inc.
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SCHEDULE 1.1.46
FORM OF OPG ASSUMPTION AGREEMENT
WATER AND SEWAGE SERVICE AGREEMENT
CONDITIONAL ASSUMPTION AGREEMENT
ONTARIO POWER GENERATION INC.,
- and -
THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE
-and -
OPG - HURON COMMON FACILITIES INC.
•, 2011
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ARTICLE 1 DEFINITIONS AND INTERPRETATION 1
1.1 Definitions 1
1.2 Schedules 2
1.3 Headings and Table of Contents 2
1.4 Gender and Number 3
1.5 Currency 3
1.6 Statutes 3
1.7 Invalidity of Provisions 3
1.8 Entire Agreement 3
1.9 Waiver, Amendment 4
1.10 Governing Law 4
1.11 Preparation of Agreement 4
ARTICLE 2 COVENANTS 4
2.1 Assumption at Expiration of Lease 4
2.2 Termination of Prior Agreements 5
2.3 Common Facilities' Agent 5
ARTICLE 3 REPRESENTATIONS AND WARRANTIES 6
3.1 Representations and Warranties of OPG 6
3.2 Representations of the Municipality 6
ARTICLE 4 INDEMNITIES AND RELEASES 6
4.1 Indemnity in Favour of OPG 6
4.2 Release 6
4.3 Third Party Beneficiary Matters 7
ARTICLE 5 GENERAL CONTRACT PROVISIONS 7
5.1 Notice 7
5.2 Further Assurances 9
5.3 Assignment and Enurement 9
5.4 Counterparts 9
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WATER AND SEWAGE SERVICE AGREEMENT CONDITIONAL ASSUMPTION
AGREEMENT
THIS AGREEMENT is dated as of the • day of November, 2011.
BETWEEN:
ONTARIO POWER GENERATION INC., a
corporation incorporated under the laws of Ontario
( "OPG ")
- and -
THE CORPORATION OF THE MUNICIPALITY OF
KINCARDINE
( "Municipality ")
- and -
OPG - HURON COMMON FACILITIES INC., a
corporation incorporated under the laws of Ontario
( "Common Facilities ")
RECITALS:
A. Bruce Power L.P. ( "Bruce Power ") and the Municipality have entered into a Water and
Sewage Service Agreement dated November 15, 2011.
B. Pursuant to the Lease, OPG and Common Facilities lease to Bruce Power the Bruce
Power Site and other lands.
C. The Municipality wishes OPG to agree to be bound by and, to the extent provided for in
this Agreement, to assume the ongoing obligations of Bruce Power under the provisions
of the Water and Sewage Service Agreement upon the expiration or earlier termination of
the Lease.
NOW THEREFORE in consideration of the mutual covenants set forth in this
Agreement and other good and valuable consideration (the receipt and sufficiency of which are
hereby acknowledged), the Parties agree as follows:
ARTICLE 1
DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Agreement, capitalized terms not otherwise defined in their Agreement shall have the
meaning attributed to them in the Water and Sewage Service Agreement, and the following
terms as used in this Agreement have the following respective meanings:
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T951056\TOR_LAW\ 7260448\33
(a) "Agreement" means this Water and Sewage Service Agreement Conditional
Assumption Agreement and all Schedules attached to this Agreement, in each
case as they may be amended, supplemented, replaced or restated from time to
time, and unless otherwise indicated, references to recitals, Articles, sections,
paragraphs, Schedules and Appendices are to recitals, Articles, sections,
paragraphs, Schedules and Appendices in this Agreement.
(b) "Assumption Date" means the earlier of the expiry or the termination of the
Lease.
(c) "including ", "included" and "include" means including, included or include,
each without limitation.
(d) "Indemnified Parties" has the meaning set forth in section 4.1.
(e) "Lease" means the amended and restated lease agreement dated as of May 12,
2001 among OPG, Bruce Power, and others pursuant to which Bruce Power
leases the Bruce Power Site, as amended, supplemented, replaced or restated from
time to time.
(f) "Municipal Agreement" means the Sewage Treatment Plant and Water Tower
Assets and Related Easements Transfer Agreement (Bruce Power - Kincardine)
dated October 20, 2011 between Bruce Power and the Municipality.
(g) "Parties" means the parties to this Agreement and "Party" means any one of the
Parties.
(h) "Subsidiaries" means OPG - Huron A Inc., OPG - Huron B Inc., OPG - Huron
Common Facilities Inc. and OPG Waste Inc., or any of them.
(i) "Transferred Assets" has the meaning attributed thereto in the Municipal
Agreement.
(j) "Water and Sewage Service Agreement" means the Water and Sewage Service
Agreement dated November 15, 2011 between Bruce Power and the Municipality
annexed hereto as Schedule "A ".
1.2 Schedules
The following are the Schedules attached to this Agreement:
Schedule "A" - Water and Sewage Service Agreement.
1.3 Headings and Table of Contents
The inclusion of headings and a table of contents in this Agreement are for convenience of
reference only and shall not affect the construction or interpretation of this Agreement.
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1.4 Gender and Number
In this Agreement, unless the context otherwise requires, words importing the singular include
the plural and vice versa and words importing gender include all genders.
1.5 Currency
Except where otherwise expressly provided, all amounts in this Agreement are stated and shall
be paid in Canadian currency.
1.6 Statutes
Any reference in this Agreement to a statute or to a regulation or rule promulgated under a
statute or to any provision of a statute, regulation or rule shall be a reference to the statute,
regulation, rule or provision, as amended, re- enacted or replaced from time to time.
1.7 Invalidity of Provisions
Each of the provisions contained in this Agreement are distinct and severable and a declaration
of invalidity or unenforceability of any such provision or part thereof by a court of competent
jurisdiction shall not affect the validity or enforceability of any other provision of this
Agreement. To the extent permitted by Applicable Law, the Parties waive any provision of
Applicable Law that renders any provision of this Agreement invalid or unenforceable in any
respect. The Parties shall engage in good faith negotiations to replace any provision which is
declared invalid or unenforceable with a valid and enforceable provision, the economic effect of
which comes as close as possible to that of the invalid or unenforceable provision which it
replaces.
1.8 Entire Agreement
This Agreement constitutes the entire agreement between the Parties pertaining to the subject
matter of this Agreement and supersedes all prior negotiations, understandings, discussions and
agreements whether oral or written relating to the subject matter hereof including any
agreements relating to the operations, costs and services to be provided to the Municipality
relating to the Sewage Treatment Plant or any Transferred Assets. There are no warranties,
conditions, or representations (including any that may be implied by statute) and there are no
agreements in connection with such subject matter except as specifically set forth or referred to
in this Agreement. No reliance is placed on any warranty, representation, opinion, advice or
assertion of fact made either prior to, contemporaneous with, or after entering into this
Agreement or any amendment or supplement thereto, by any Party to this Agreement or its
partners, directors, officers, employees or agents, to any other Party to this Agreement or its
partners, directors, officers, employees or agents, except to the extent that the same has been
reduced to writing and included as a term of this Agreement and none of the Parties to this
Agreement has been induced to enter into this Agreement or any amendment or supplement by
reason of any such warranty, representation, opinion, advice or assertion of fact. Accordingly,
there shall be no liability, either in tort or in contract, assessed in relation to any such warranty,
representation, opinion, advice or assertion of fact, except to the extent contemplated above.
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1.9 Waiver, Amendment
Except as expressly provided in this Agreement, no amendment or waiver of this Agreement
shall be binding unless executed in writing by the Party to be bound thereby. No waiver of any
provision of this Agreement shall constitute a waiver of any other provision nor shall any waiver
of any provision of this Agreement constitute a continuing waiver or operate as a waiver of, or
estoppel with respect to, any subsequent failure to comply, unless otherwise expressly provided.
1.10 Governing Law
This Agreement shall be governed by and construed in accordance with the laws of the Province
of Ontario and the laws of Canada applicable therein.
1.11 Preparation of Agreement
The terms and conditions of this Agreement are the result of negotiations between the Parties and
the Parties agree that this Agreement shall not be construed in favour of or against any Party by
reason of the extent that any Party or its professional advisors participated in the preparation of
this Agreement.
ARTICLE 2
COVENANTS
2.1 Assumption at Expiration of Lease
Provided that the Water and Sewage Service Agreement is in full force and effect and the
Municipality is not then in default of its obligations thereunder, OPG will assume, and will
observe and perform, Bruce Power's obligations under the Water and Sewage Service
Agreement which are to be performed thereunder as of and from the Assumption Date, subject to
the following:
(a) OPG shall have no liability for, or obligation to correct, or obligation to
indemnify the Municipality for, any default, act or omission of Bruce Power
occurring on or prior to the Assumption Date;
(b) in no event will OPG be subject to any rights of set -off or defences that the
Municipality may be able to assert against Bruce Power or against others, or
arising in respect of matters occurring on or prior to the Assumption Date;
(c) OPG will not be bound by any amendments, modifications or waivers, whether
written or oral, to the Water and Sewage Service Agreement, unless they are
amendments made in writing, executed by Bruce Power and the Municipality, and
consented to in writing by OPG; and
(d) nothing in section 2.1(c) will prevent Bruce Power and the Municipality from
terminating the Water and Sewage Service Agreement, in which case OPG will
cease to have any obligations under this Agreement.
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2.2 Termination of Prior Agreements
OPG and the Municipality hereby agree:
(a) to terminate the following agreements (collectively, the "Sewage Treatment
Agreements ") with immediate effect:
(i) Sewage Treatment Plant Operation Agreement between Ontario Hydro
and The Corporation of the Township of Kincardine dated December 23,
1992 with a perpetual term;
(ii) Sewage Services Agreement between Ontario Hydro and The Corporation
of the Village of Tiverton dated September 20, 1990 with a perpetual
term; and
(iii) Agreement concerning, among other things, Inverhuron sewage treatment
between Ontario Hydro and The Corporation of the Township of Bruce
dated June 28, 1995 with a term until December 31, 1999.
(b) that except for this Agreement, the Municipal Agreement, the Water and Sewage
Service Agreement and any agreement or acknowledgement entered into in
connection with the transaction whereby the Transferred Assets are transferred to
Municipality, Municipality will not enforce against OPG or Common Facilities
any other agreement, writing, memorandum, or understanding between the Parties
(or any predecessors thereof) in any way relating to or involving the Sewage
Treatment Plant, the lands upon which it is located or, directly or indirectly,
related to any services provided to Municipality or any third party through the
operations of the Sewage Treatment Plant.
2.3 Common Facilities' Agent
Common Facilities on behalf of itself and its successors and assigns, hereby appoints OPG, its
successors and assigns to act as its agent for the purposes of performing all of the Common
Facilities' obligations, and exercising all the Common Facilities' rights and remedies, under this
Agreement, including receiving any payments payable under this Agreement or the Water and
Sewage Service Agreement, giving and receiving notices, certificates and reports, exercising any
discretion on the part of the Common Facilities under this Agreement or the Water and Sewage
Service Agreement, providing all consents or approvals, executing certificates, entering into
agreements contemplated hereby. This appointment of OPG as agent shall continue until such
time as the Common Facilities gives written notice to OPG and Municipality revoking the
appointment of OPG as its agent. Any acknowledgement, consent, approval, certificate or other
document or agreement which relates generally or specifically to this Agreement or the Water
and Sewage Service Agreement or that is contemplated by this Agreement or the Water and
Sewage Service Agreement, given or entered into by OPG shall be binding upon the Common
Facilities, its successors and assigns, whether or not such acknowledgement, consent, approval,
certificate or other document or agreement indicates that OPG is acting alone or in its capacity as
agent for the Common Facilities, its successors or assigns.
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ARTICLE 3
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of OPG
OPG represents and warrants to the Municipality that this Agreement has been duly authorized,
executed and delivered by OPG and Common Facilities and is a valid and binding obligation of
OPG and Common Facilities enforceable in accordance with its terms, subject to the usual
exceptions as to bankruptcy and the availability of equitable remedies.
3.2 Representations of the Municipality
The Municipality represents and warrants to OPG and Common Facilities that:
(a) it is the successor to each municipality that is a counterparty to each of the
Sewage Treatment Agreements;
(b) it has the authority to terminate the Sewage Treatment Agreements;
(c) to the best of its knowledge, save and except for this Agreement, the Municipal
Agreement, the Water and Sewage Service Agreement, and any agreements or
acknowledgements entered into in connection with the transaction whereby the
Transferred Assets are transferred to the Municipality, there are no other
agreements to which it or any predecessor municipality is a party that concerns
the Sewage Treatment Plant; and
(d) this Agreement has been duly authorized, executed and delivered by the
Municipality and is a valid and binding obligation of the Municipality enforceable
in accordance with its terms, subject to the usual exceptions as to bankruptcy and
the availability of equitable remedies.
ARTICLE 4
INDEMNITIES AND RELEASES
4.1 Indemnity in Favour of OPG
The Municipality agrees to indemnify and hold harmless OPG and the Subsidiaries and their
respective officers, directors, employees, agents, contractors and those for whom it is in law
responsible (collectively, the "Indemnified Parties ") from any and all Claims asserted against
the Indemnified Parties directly or indirectly in respect of the Transferred Assets or any defects
related thereto (except to the extent caused or contributed to in any material way by the acts or
omissions of one or more of the Indemnified Parties) or pursuant to the Municipal Agreement or
any agreements entered into pursuant to the Municipal Agreement.
4.2 Release
Effective the date hereof, the Municipality hereby releases, discharges and forever acquits the
Indemnified Parties from all Claims which the Municipality may suffer or incur relating to the
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Transferred Assets or any defect related thereto other than in respect of any breach of the
representations and warranties of OPG or Common Facilities in this Agreement. The
Municipality's recourse, if any, relating to the Transferred Assets or any defects related thereto
shall be asserted against Bruce Power or others and not against the Indemnified Parties.
4.3 Third Party Beneficiary Matters
OPG declares, and Municipality agrees, that OPG holds the benefit of any covenant, release or
indemnity that is expressed to include the Indemnified Parties for their benefit as third party
beneficiaries under this Agreement and as trustee for the Indemnified Parties.
ARTICLE 5
GENERAL CONTRACT PROVISIONS
5.1 Notice
Any notice or other communication required or permitted to be given pursuant to this Agreement
shall be given or made in writing and shall be served personally upon the party for whom it is
intended, or mailed by prepaid registered mail or sent by facsimile or other electronic
transmission as follows:
(a) in the case of OPG and Common Facilities addressed to:
Ontario Power Generation Inc.
700 University Avenue
Toronto, Ontario M5G 1X6
Attention: Vice - President, Law and General Counsel
Facsimile No.: (416) 592 -1466
- and -
Ontario Power Generation Inc.
889 Brock Road; Room 325
Pickering, Ontario L1W 3J2
Attention: Director, Commercial Services and Contracting, Nuclear
Refurbishment, Projects and Support
E -mail: stephen.mills @opg.com
with copy to the OPG's and Common Facilities' Counsel:
Torys LLP
Suite 3000
TD Waterhouse Tower
Toronto Dominion Centre
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T951056\TOR LAW\ 7260448\33
79 Wellington Street West
Toronto, Ontario M5K 1N2
Attention: Donald B. Roger and
Krista F. Hill
Facsimile No.: (416) 865 -7830
(b) in the case of the Municipality addressed to:
Municipality of Kincardine
1475 Concession 5, RR #5,
Kincardine, Ontario, N2Z 2X6
Attention: CAO
Facsimile No.: (519) 396 -8288
With a copy to:
Municipality of Kincardine
1475 Concession 5, RR #5,
Kincardine, Ontario, N2Z 2X6
Attention: Public Works Department
Facsimile No.: (519) 396 -8288
with a copy to the Municipality's counsel at:
Magwood, Van De Vyvere, Thompson & Grove — McClement
Barristers & Solicitors
215 Durham Street
Walkerton, Ontario,
NOG 2V0
Attention: George Magwood
Facsimile No.: 519- 881 -3595
or to such other address or in care of such other person or to such other facsimile number or e-
mail address as any party may from time to time advise the other parties hereto by notice in
writing. The date of receipt of such notice or other communication shall be deemed to be the date
of delivery of such notice or other communication if delivered personally or, if delivered by
facsimile or other electronic transmission, on the first business day next following transmission,
or if mailed, on the third business day next following the date of such mailing provided that if at
the date of such mailing interruption in the operation of the postal service of Canada does or is
likely to delay the mailing, such notice or other communication shall be delivered personally or
by facsimile or other electronic transmission.
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5.2 Further Assurances
Each of the Parties shall promptly do, make, execute, deliver, or cause to be done, made,
executed or delivered, all such further acts, documents and things as the other hereto may
reasonably require from time to time for the purpose of giving effect to this Agreement and shall
use reasonable efforts and take all such steps as may be reasonably within its power to
implement to their full extent the provisions of this Agreement.
5.3 Assignment and Enurement
This Agreement shall enure to the benefit of, and be binding upon, the Parties and their
respective successors and permitted assigns. No Party may assign this Agreement without the
prior written consent of the other Parties, which consent shall not be unreasonably withheld,
delayed or conditioned.
5.4 Counterparts and Execution
This Agreement may be executed and delivered by the Parties in one or more counterparts, each
of which will be an original, and each of which may be delivered by facsimile, e-mail or other
functionally equivalent electronic means of transmission and all of such counterparts, when
taken together, shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be signed by their
respective duly authorized officers as of the date first written above.
ONTARIO POWER GENERATION OPG - HURON COMMON FACILITIES
INC. INC.
By: By:
Name: Name:
Title: Title:
By: By:
Name: Name:
Title: Title:
THE CORPORATION OF THE
MUNICIPALITY OF KINCARDINE
By:
Name: Larry Kraemer
Title: Mayor
By:
Name: •
Title: CAO
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SCHEDULE "A"
Water and Sewage Service Agreement
[to be attached]
[END OF SCHEDULE 1.1.46]
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SCHEDULE 1.1.66
SEWAGE TREATMENT AGREEMENTS
1. Sewage Treatment Plant Operation Agreement between Ontario Hydro and The
Corporation of the Township of Kincardine dated December 23, 1992 with a perpetual term.
2. Sewage Services Agreement between Ontario Hydro and The Corporation of the Village
of Tiverton dated September 20, 1990 with a perpetual term.
3. Agreement concerning, among other things, Inverhuron Sewage Treatment between
Ontario Hydro and The Corporation of the Township of Bruce dated June 28, 1995 with a term
until December 31, 1999.
[END OF SCHEDULE 1.1.661
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SCHEDULE 2.3
ASSIGNMENT AND ASSUMPTION OF ASSUMED CONTRACTS
THIS ASSIGNMENT AND ASSUMPTION OF ASSUMED CONTRACTS is made as of the
day of November, 2011.
BETWEEN:
BRUCE POWER L.P.
( "Assignor ")
-and -
THE CORPORATION OF THE Municipality of
KINCARDINE
( "Assignee ")
WHEREAS:
A. Assignor has agreed to transfer and assign and Assignee has agreed to assume, all of
Assignor's right, title and interest in and to certain contracts (the particulars of which are set out
for identification purposes on Schedule A) for the supply of untreated industrial water and/or
treatment of sewage to persons in the BEC (the "Contracts ") pursuant to a sewage treatment
plant and water tower assets and related easements transfer agreement dated August 11, 2010
between the Assignor and Assignee (the "Asset Transfer Agreement ");
B. In furtherance of the terms of the Asset Transfer Agreement, Assignor and Assignee have
entered into this Assignment and Assumption of Assumed Contracts Agreement (the
"Assignment ") and intend that all of Assignor's right, title and interest in and to the Contracts be
granted, transferred and assigned to Assignee.
IN CONSIDERATION of the sum of $2.00 now paid and other good and valuable
consideration (the receipt and sufficiency of which are hereby acknowledged) the parties hereto
hereby agree as follows:
1. The parties hereby acknowledge, confirm and agree that the foregoing recitals are true in
substance and in fact.
2. All capitalized terms used but not otherwise defined herein have the meanings ascribed to
those terms in the Asset Transfer Agreement unless the context requires otherwise.
3. Assignor hereby assigns all of Assignor's right, title and interest in and to the Contracts
to Assignee, with effect as of the date first written above (the "Effective Date ").
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4. Assignee hereby assumes Assignor's obligations and responsibilities under the Contracts
effective as of the Effective Date, and confirms that it has obtained all necessary consents to the
assignment of the Contracts.
5. From and after the Effective Date Assignee shall:
(a) perform all the obligations and responsibilities of Assignor under the Contracts;
and
(b) shall indemnify and save harmless Assignor from any claims made by any
customer under the Contracts that Assignor may suffer as a result of Assignee's
failure to perform such obligations and responsibilities from and after the
Effective Date.
6. Except as disclosed to Assignee in writing prior to the Effective Date, to the best of
Assignor's knowledge all of the Contracts are in good standing as of the Effective Date.
7. Assignor agrees to indemnify and save harmless Assignee and OPG and their respective
affiliates and each of their respective officers, directors, employees and agents (collectively
"Indemnified Persons ") from any claims of any customer under the Contracts that Assignee
may suffer as a result of Assignor's failure to perform its obligations under any of the Contracts
prior to the Effective Date.
8. Assignee acknowledges that OPG and its affiliates, and their respective officers,
directors, employees and agents (the "OPG Indemnities ") has had no involvement with any of
the Contracts and therefore releases the OPG Indemnities from any claims it may now or in the
future have against the OPG Indemnities in connection with, on account of or arising out of the
Contracts provided that this release shall be without prejudice to any rights that Assignee may
have at any time or from time to time against the OPG Indemnities in connection with the OPG
Easements. Assignee acknowledges that Assignor is holding the benefit of this release in trust
for the benefit of the OPG Indemnities.
9. Any notice or other communication required or permitted to be given under this
Agreement or which a party may wish to give another shall be given in the manner provided for
in section 10.2 of the Asset Transfer Agreement.
10. This Assignment shall be an Ontario contract for all purposes and shall be binding upon
and enure to the benefit of the parties and their respective successors and assigns.
11. This Assignment may be executed and delivered by the parties in counterparts, each of
which when so executed and delivered shall be deemed an original and those counterparts
together shall constitute one and the same instrument. Delivery of this agreement by either party
may be by electronic transmission and such delivery shall be deemed to constitute valid and
effective delivery.
IN WITNESS WHEREOF the parties have signed this Assignment on the date written above.
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THE CORPORATION OF THE
MUNICIPALITY OF KINCARDINE
By:
Name: Larry Kraemer
Title: Mayor
By:
Name: •
Title: CAO
BRUCE POWER L.P., by its general
partner BRUCE POWER INC.
By:
Duncan Hawthorne
Chief Executive Officer
By:
Brian G. Armstrong Q.C.
Executive Vice President and General
Counsel
[End of SCHEDULE 2.3]
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SCHEDULE 2.4
WATER AND SEWAGE SERVICE AGREEMENT
BRUCE POWER L.P.
- and -
THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE
■, 2011
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TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS AND INTERPRETATION 1
1.1 Definitions 1
1.2 Interpretation 6
ARTICLE 2 COMMENCEMENT DATE, TERM, RENEWAL AND TERMINATION 6
2.1 Term and Renewals 6
2.2 Assignment to OPG 7
2.3 No Obligation to Renew Lease 7
2.4 Municipal Review 7
2.5 Termination 7
ARTICLE 3 WATER SUPPLY 8
3.1 Contracted Quantity 8
3.2 Water Tower 8
3.3 Water Pressure 8
3.4 Varying Contracted Quantity 8
3.5 Supply Point 8
3.6 Industrial Non - potable Water 8
3.7 Quantity Measurement 9
3.8 Bruce Power Equipment 9
ARTICLE 4 WATER RATES 9
4.1 Rates 9
4.2 Annual Rate Adjustment 9
4.3 Annual Report 9
4.4 Ten Year True Up 9
4.5 Land Credit 10
4.6 Invoicing 10
4.7 Overdue Payments 10
4.8 Non - payment Not Excused 10
ARTICLE 5 EFFLUENT 11
5.1 Use of Pipe 11
5.2 Effluent Only 11
5.3 Excess Capacity 11
ARTICLE 6 DELAY, REDUCTION OR INTERRUPTION OF SERVICES 11
6.1 Availability of Services 11
6.2 Delay, Reduction or Interruption of Services 11
6.3 Consultation/Notice of Interruption 12
6.4 Mitigation by Municipality 12
6.5 Notification by Municipality 12
6.6 Liaison 12
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TABLE OF CONTENTS
(continued)
Page
ARTICLE 7 METERING, MAINTENANCE, REPAIRS AND LIMITED
WARRANTY 13
7.1 Meters 13
7.2 Compatibility 13
7.3 Estimates 13
7.4 Meter By -pass Lines 13
7.5 Calibration 13
7.6 Maintenance and Repair 13
7.7 Limited Warranty 16
7.8 Labour Rates 16
ARTICLE 8 MUNICIPALITY'S EQUIPMENT AND OPERATIONS 16
8.1 Municipality Equipment 16
8.2 Maintenance of Municipality Equipment 17
8.3 No Liability 18
8.4 Permits and Approvals 18
8.5 Insurance 18
ARTICLE 9 SEWAGE TREATMENT CAPACITY ALLOCATION 19
9.1 Sewage Capacity Waiver 19
9.2 Reservation 19
9.3 Mutual Aid for Bruce Power 19
9.4 Mutual Aid for Municipality 19
9.5 Connections 20
ARTICLE 10 MUNICIPALITY IN DEFAULT 20
10.1 Default 20
10.2 Additional Rights 20
ARTICLE 11 LIABILITY 21
11.1 Indemnity 21
11.2 Exclusion of Certain Damages 21
11.3 Limit of Liability 22
11.4 Assumption of Risk 22
11.5 Benefit of the Release, Waiver and Indemnity 22
ARTICLE 12 NOTICES 22
12.1 Notices 22
ARTICLE 13 DISPUTE RESOLUTION 24
13.1 Negotiation 24
ARTICLE 14 GENERAL CONTRACT PROVISIONS 26
14.1 Waiver 26
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TABLE OF CONTENTS
(continued)
Page
14.2 Force Majeure 26
14.3 Public Notices 26
14.4 Successors and Assigns 27
14.5 Entire Agreement 27
14.6 Applicable Law 27
14.7 Amendments 27
14.8 Confidentiality 27
14.9 Execution and Delivery 28
14.10 Severability 28
14.11 Further Assurances 28
14.12 Preparation of Agreement 29
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THIS WATER AND SEWAGE SERVICE AGREEMENT is made as of the day of
November, 2011.
BETWEEN:
BRUCE POWER L.P.
( `Bruce Power ")
- and -
THE CORPORATION OF THE MUNICIPALITY OF
KINCARDINE
( "Municipality ")
WHEREAS:
A. As a result of certain transactions completed in accordance with certain agreements
between Municipality and Bruce Power and between Bruce Power and OPG, Municipality: (i)
became the owner of the Sewage Treatment Plant and the Water Tower and certain related pipes
and equipment; (ii) agreed with Bruce Power to assume from Bruce Power certain agreements
for the provision of Water to users in the BEC; and (iii) agreed to provide for Bruce Power's use
and benefit the Sewage Capacity Waiver; and Bruce Power will accept for discharge into Lake
Huron certain Effluent from the Sewage Treatment Plant.
B. The Parties are entering into this Agreement to set out the terms and conditions upon
which: (i) Municipality shall purchase and Bruce Power shall sell Water; (ii) Bruce Power will
accept Effluent from Municipality for discharge; and (iii) Municipality will provide the Sewage
Capacity Waiver.
NOW THEREFORE in consideration of the mutual covenants set forth in this Agreement and
other good and valuable consideration (the receipt and sufficiency of which are hereby
acknowledged), the Parties hereto agree as follows:
ARTICLE 1
DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Agreement, in addition to terms defined elsewhere in this Agreement the following terms,
unless the context otherwise requires, have the following meanings:
(a) "Applicable Law" means, collectively, all applicable laws, statutes, ordinances,
decrees, rules, regulations, by -laws, legally enforceable policies, codes or
guidelines, judicial, arbitral, administrative, ministerial, departmental or
regulatory, judgments, orders, decisions, directives, rulings or awards, as
amended from time to time; and conditions of any grant of approval, permission,
certification, consent, registration, authority or licence by any court, statutory
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body, self - regulatory authority, stock exchange or other Governmental Authority,
including Nuclear Law, as amended from time to time.
(b) "BEC" means the lands and premises comprising Plan 3M -113 registered in the
Land Registry Office for the Land Titles Division of Bruce (No. 3) and commonly
referred to as the Bruce Energy Centre.
(c) `BNPD" means the Bruce Nuclear Power Development located in Municipality
of Kincardine, Ontario.
(d) "Bruce Power" means Bruce Power L.P., a limited partnership existing under the
laws of Ontario, and includes any successor to Bruce Power L.P. resulting from
any merger, arrangement or other reorganization of or including Bruce Power L.P.
or any continuance under the laws of another jurisdiction.
(e) "Bruce Power Equipment" means all equipment, facilities and systems located
on the Bruce Power Site: (i) that in respect of Water is on the Bruce Power "side"
of the Terminal Isolation Valve, whether owned or leased, operated and
maintained by, or on behalf of Bruce Power used for the supply of Water to
Municipality and includes any Meters in connection therewith and the Terminal
Isolation Valve; and (ii) the Effluent Pipe west of the Effluent Transition Point.
(f) "Bruce Power Site" means that part of the BNPD leased by Bruce Power
pursuant to the Lease located inside the perimeter fence between the Tie Road and
Lake Huron.
(g) "Bruce Power Work Expense Share" has the meaning ascribed thereto in
section 7.6(a)(i).
(h) "Business Day" means any day other than a Saturday, Sunday or any other day
that is a statutory holiday in Ontario.
(i) "Claims" means claims, suits, proceedings, liabilities, obligations, losses,
damages, penalties, interest, orders (including orders issued by any Governmental
Authority), judgments, costs, expenses, fines, disbursements, legal fees on a
substantial indemnity basis, interest, demands and actions of any nature or any
kind whatsoever.
(j) "Confirmation Notice" has the meaning ascribed thereto in section 7.6(c)(ii).
(k) "Commercially Reasonable Efforts" means efforts which are designed to enable
a Party, directly or indirectly, to satisfy or perform its obligations under this
Agreement and which do not require the performing Party to expend any funds or
assume liabilities other than expenditures and liabilities which are reasonable in
nature and amount in the context of such obligations or, where applicable, usual
commercial practice.
(1) "Commencement Date" means November ■, 2010.
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II I
(m) "CPI" means the Statistics Canada Consumer Price Index (Ontario All Items) as
same may be amended, reset, changed or replaced from time to time with October
2010 as the base.
(n) "Direct Losses" means all damage, losses, liabilities, penalties, fines,
assessments, claims, actions, cost, expenses (including the cost of legal or
professional services, legal cost being on a substantial indemnity basis),
proceedings, demands and charges whether arising under statute, contract or at
common law, except Indirect Losses.
(o) "Effluent" means sewage treated at the Sewage Treatment Plant to the standard
for discharge into Lake Huron required by Applicable Law including the relevant
certificate of approval issued to Municipality by the applicable Government
Authority.
(p) "Effluent Pipe" means that part of the pipe that discharges Effluent from the
Sewage Treatment Plant into Lake Huron located on the Bruce Power Site
between the Effluent Transition Point and Lake Huron.
(q) "Effluent Transition Point" means the point at which the Effluent Pipe intersects
with the fence around the Bruce Power Site on the Lake Huron side of the Tie
Road at GPS coordinates N. 4905836.9 E. 453474.3.
(r) "Force Majeure Events" has the meaning ascribed thereto in section 14.2(a).
(s) "Governmental Authority" means any federal, provincial, state, municipal or
local government, parliament or legislature, or any regulatory authority, agency,
tribunal, commission, board or department of any such government, parliament or
legislature, or any court or other law, regulation or rule- making entity, or any
arbitrator, each having or reasonably purporting to have jurisdiction in the
relevant circumstances, including, for greater certainty, any Person acting or
reasonably purporting to act under the authority of any Governmental Authority.
(t) "Indirect Losses" means (i) punitive exemplary or aggravated damages; (ii) loss
of profits, loss of use, loss of production, loss of business or loss of business
opportunity; or (iii) a claim for consequential loss or for indirect loss of any
nature suffered or allegedly suffered by any person.
(u) "Initial Term" has the meaning ascribed thereto in section 2.1(b).
(v) "Lease" means the lease between Bruce Power and OPG and others pursuant to
which Bruce Power leases the Bruce Power Site.
(w) "Limited Warranty" has the meaning ascribed thereto in section 7.7.
(x) "Limited Warranty Period" has the meaning ascribed thereto in section 7.7.
(y) "Losses" means Direct Losses and Indirect Losses.
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(z) "Meter" means any measuring devices and associated equipment that Bruce
Power determines are needed to determine the quantity of Water supplied under
this Agreement.
(aa) "Municipality" means The Corporation of the Municipality of Kincardine and
any successor municipal corporation.
(bb) "Municipality Equipment" means the Sewage Treatment Plant, the Water
Tower, and all pipes, equipment, facilities and systems owned, operated and
maintained by and required by Municipality for receiving and distributing Water
and receiving and transporting sewage for treatment and discharging Effluent.
(cc) "Municipality Work Expense Share" has the meaning ascribed thereto in
section 7.6(a)(ii).
(dd) "Notice" has the meaning ascribed thereto in section 12.1.
(ee) "Nuclear Law" means all federal, provincial or municipal statutes, regulations,
by -laws, permits, orders, decisions or rules, and any legally enforceable policies
or guidelines of any Governmental Authority, relating specifically to the
regulation of nuclear power plants and nuclear material, including the Nuclear
Energy Act (Canada), the Nuclear Liability Act (Canada), and the Nuclear Safety
and Control Act (Canada) and the respective regulations thereunder and any
regulatory guidance documents, directives, standards and policies issued from
time to time by the Canadian Nuclear Safety Commission or its predecessor or
any successor organization.
(ff) "Objection Notice" has the meaning ascribed thereto in section 7.6(c)(ii).
(gg) "OPG" means Ontario Power Generation Inc., a corporation incorporated under
the laws of Ontario, and includes any successor to Ontario Power Generation Inc.
resulting from any amalgamation, merger, arrangement or other reorganization of
or including Ontario Power Generation Inc. or any continuance under the laws of
another jurisdiction.
(hh) "OPG Assumption Agreement" means the Water and Sewage Service
Agreement Conditional Assumption Agreement dated as of the 15th day of
November, 2011 between OPG, Municipality and OPG- Common Facilities
whereby OPG and OPG- Common Facilities Inc. agree to assume the obligations
of Bruce Power under this Agreement on and subject to the terms of the OPG
Assumption Agreement upon the termination or expiry of the Lease.
(ii) "Parties" means Bruce Power and Municipality and a "Party" means either of
them.
(jj) "Person" means any individual, sole proprietorship, partnership, firm, entity,
unincorporated association, unincorporated syndicate, unincorporated
organization, trust, body corporate, and where the context requires any of the
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foregoing when they are acting as trustee, executor, administrator or other legal
representative.
(kk) "Post Lease Term" has the meaning ascribed thereto in section 2.1(c).
(11) "Prime Rate" means the rate of interest per annum established and reported by
the Toronto Dominion Bank to the Bank of Canada from time to time as the
reference rate of interest for determination of interest rates that the Toronto
Dominion Bank charges to its Customers for Canadian dollar loans made in
Canada by such bank.
(mm) "Reply Period" has the meaning ascribed thereto in section 7.6(c)(ii).
(nn) "Ross Report" means the report prepared by BM Ross titled `BEC Water and
Wastewater Infrastructure Review' dated August 12, 2009 a copy of which has
been provided to Municipality by Bruce Power.
(oo) "Senior Conference" has the meaning ascribed thereto in section 13.1.
(pp) "Services" means the supply of Water by Bruce Power to Municipality and
acceptance of Effluent for discharge into Lake Huron by Bruce Power from
Municipality in accordance with and subject to the terms of this Agreement.
(qq) "Sewage Capacity Waiver" has the meaning ascribed thereto in section 9.1.
(rr) "Sewage Treatment Plant" means the sewage and wastewater reception and
treatment plant and the associated influent and effluent piping system, located at
1842 Concession #2, Township of Bruce, ON. and legally described as Part of
Lots 11 and 12 Concession "A" Lake Range, Municipality of Kincardine
designated as Parts 5 and 6 Plan 3R -7015.
(ss) "Term" means the Initial Term together with the Post Lease Term.
(tt) "Terminal Isolating Valve" means the Water service valve located at the
Terminal Point that connects to Municipality Equipment.
(uu) "Terminal Point" means that point located at GPS coordinates N. 4906848.30 E.
454024.99. Provided that, once a water meter is installed in connection with the
Terminal Point, "Terminal Point" will mean that point in the water pipe
immediately "downstream" of the isolation valve on the downstream side of the
water meter.
(vv) "Water" means untreated, non - potable water from Lake Huron supplied through
the Bruce Power Site at a pressure of between 275 Kpa (g) and 550 Kpa (g) (40-
80 psi (g)) to the Terminal Isolating Valves at the Terminal Point.
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(ww) "Water Tower" means the water tower and related lands occupied by or used in
conjunction with the water tower being part of Lot 18 on Plan 3M -113 designated
as Part 2 on Plan 3R -6087.
(xx) "Work" has the meaning ascribed thereto in section 7.6(a).
(yy) "Work Notice" has the meaning ascribed thereto in section 7.6(c)(i).
1.2 Interpretation
In this Agreement:
(a) words denoting the singular include the plural and vice versa and words denoting
any gender include all genders;
(b) the word "including" shall mean "including, without limitation ";
(c) when calculating the period of time within which or following which any act is to
be done or step taken, the date which is the reference day in calculating such
period shall be excluded;
(d) all dollar amounts are expressed in Canadian dollars, unless otherwise indicated;
and
(e) the division of this Agreement into separate Articles, Sections, Subsections and
Schedule(s), the provision of a table of contents and the insertion of headings is
for convenience of reference only and shall not affect the construction or
interpretation of this Agreement.
ARTICLE 2
COMMENCEMENT DATE, TERM, RENEWAL AND TERMINATION
2.1 Term and Renewals
(a) Subject to earlier termination rights provided in the Lease, the current term of the
Lease ends on December 31, 2018. The Lease provides for consecutive renewal
periods of up to 25 years as follows:
(i) the first renewal is for a period of one (1) year; and
(ii) each of the second to thirteenth renewals is for a period of two (2) years.
(b) Subject to earlier termination in accordance with section 2.5, the initial term (the
"Initial Term ") of this Agreement will start on the Commencement Date and end
on the termination or expiry of the Lease (including for the period of any renewal
term of the Lease).
(c) Upon the termination or expiry of the Lease the term of this Agreement will be
automatically renewed in perpetuity for consecutive periods of one year
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commencing on the date that the Lease expires or is terminated (the "Post Lease
Term ") and ending on the date this Agreement is terminated in accordance with
section 2.5.
2.2 Assignment to OPG
Upon the expiry or earlier termination of the Lease, Bruce Power will not have the ability to
continue to provide the Services and shall assign this Agreement to OPG, or the then owner of
the BNPD, who will assume Bruce Power's obligations under this Agreement in accordance with
the OPG Assumption Agreement whereupon Bruce Power shall have no further obligations to
Municipality.
2.3 No Obligation to Renew Lease
Bruce Power shall have no obligation to exercise any renewals of the Lease. Bruce Power shall
notify Municipality each time Bruce Power exercises a renewal of the Lease at the same time it
notifies OPG of the renewal. If Bruce Power determines not to exercise any renewal of the
Lease, it shall notify Municipality as soon as reasonably possible.
2.4 Municipal Review
Municipality agrees to undertake in five years from the date of this Agreement a review of the
feasibility of providing potable water service to the BEC from a source outside of the BNPD and
ceasing to source water through the BNPD.
2.5 Termination
(a) This Agreement may be terminated:
(i) by Bruce Power as provided in section 4.7 or section 7.6 or section 10.1;
(ii) by mutual written agreement of the Parties;
(iii) by Bruce Power upon Notice to Municipality if Bruce Power, acting
reasonably, determines that, or through a Senior Conference or arbitration
it is determined that, Municipality has breached any part of section 14.3
[Public Notices] and section 14.8 [Confidentiality]; or
(iv) automatically if Municipality commits any act of bankruptcy; has a
receiver appointed because of insolvency or in respect of any property; or
makes a general assignment for the benefit of creditors.
(b) Bruce Power may permanently terminate the supply of Water immediately upon
Notice to Municipality where the supply of Water to Municipality is interrupted at
Municipality's request and such interruption continues for more than 60
consecutive days during the Term and in such case all of Bruce Power's
obligation under this Agreement as they pertain to Water and/or the supply of
Water shall be at an end.
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ARTICLE 3
WATER SUPPLY
3.1 Contracted Quantity
Subject to the provisions of this Agreement, Bruce Power shall supply Municipality Water at the
rate of 40 litres per second under normal operating conditions and up to 80 litres per second in
and during the period of any emergency, that is where additional water is required for fire
fighting purposes, in either event up to a total of up to 35,900 cubic metres per day (the
"Contracted Quantity ")
3.2 Water Tower
If necessary, and if Bruce Power and the Bruce Power Equipment have the required capacity,
Bruce Power will, upon Municipality's request, provide water in addition to the Contracted
Quantity in order that Municipality is able to maintain a water level in the Water Tower between
7.7 metres and 9.2 metres respectively.
3.3 Water Pressure
The maintenance by Bruce Power of Water at a pressure between 275 Kpa (g) and 550 Kpa (g)
(40 -80 psi (g)) pounds per square inch gauge at the Terminal Isolating Valve under the
maximum load conditions shall constitute the supply of Water for the purpose of this Agreement.
Bruce Power shall use reasonable diligence in supplying Water within the previously mentioned
pressure range. However, Bruce Power shall not be liable to Municipality for variations due to
fluctuations in demand.
3.4 Varying Contracted Quantity
The Parties may alter the Contracted Quantity upon their mutual written agreement.
3.5 Supply Point
Water shall be supplied to Municipality at the Terminal Isolation Valve.
3.6 Industrial Non - potable Water
The Water is intended for use by customers of Municipality only as untreated industrial water
and for fire fighting purposes and is not potable. Municipality will inform all customers that the
Water is not potable.
3.7 Quantity Measurement
Bruce Power shall measure or take whatever other action is required to measure or determine the
quantity of Water supplied to Municipality. It is the intention to meter the supply of Water and
base billings therefor on the meter readings.
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3.8 Bruce Power Equipment
Bruce Power shall be responsible for the day -to -day operation and maintenance of the Bruce
Power Equipment. Bruce Power shall have no responsibility whatsoever for any of Municipality
Equipment.
ARTICLE 4
WATER RATES
4.1 Rates
The rates for the supply of all Water for the years 2010 and 2011 shall be $ 0.2463 per m
Emergency water service for the years 2010 and 2011 shall be $352.94 per month.
4.2 Annual Rate Adjustment
Every December during the Term starting December 2011 the rates will be adjusted (with
adjusted rates commencing as of January 1 of the following year), in accordance with CPI.
4.3 Annual Report
Starting at the end of 2011 and annually thereafter Bruce Power shall provide a report to
Municipality detailing the costs incurred by Bruce Power in providing the Services for the year
just ended on a full cost recovery basis. One of the purposes of the report will be to enable
Municipality to track and compare Bruce Power's actual costs against the adjusted revenue
earned by Bruce Power under this Agreement so Municipality can plan for the true up
adjustment provided for in section 4.4.
4.4 Ten Year True Up
In addition to the adjustment in section 4.2, every 120 months the rates will be subject to a true
up adjustment which will be an adjustment to rates that reflect the actual operating and
maintenance costs incurred by Bruce Power to supply Water based on a full cost recovery model.
For the purposes of such full cost recovery model, actual operating and maintenance costs
associated with the supply of Water under this Agreement shall be deemed to include, among
other things, an amount to reflect Bruce Power's overhead costs related to labour costs
attributable the supply of Water, equal to 29% of such labour costs.
If the parties are unable to agree on the true up adjustment, or any aspect thereof, the matter will
be dealt with in accordance with Article 13 and until the dispute is resolved, the rates will be the
rates that Bruce Power claims to be entitled to, based on its true up calculations. Once any
dispute as to the true up has been determined any over or underpayment made in the meantime
shall be adjusted by the Parties with interest at the Prime Rate from the date of the overpayment
or underpayment to the date the overpayment is refunded or underpayment is paid.
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4.5 Land Credit
To satisfy an objective of Municipality to obtain land in the vicinity of the Sewage Treatment
Plant, Bruce Power agrees to provide Municipality with a notional credit of $220,000 to be
applied towards invoices for Water as they fall due. The amount of the notional credit has been
established on the basis that if Municipality acquired 100 acres of land in the vicinity of the
Sewage Treatment Plant it would pay approximately $2,200 per acre and the annual Water
charges are notionally $35,000 per annum. The $220,000 credit will be applied to all charges for
Water as they are invoiced until the credit is exhausted provided that if the Agreement expires or
is terminated before the credit is exhausted any remaining and unused credit will be
automatically reduced to zero and Municipality shall not be entitled to any payment or credit on
account of any such remaining or unused balance of the credit.
4.6 Invoicing
Bruce Power will invoice Municipality for the quantity of Water that has been measured or
determined as being used under this Agreement during the previous three months on the fifteenth
day of the month following the three -month period or as soon thereafter as practicable.
Municipality shall pay such invoice within 30 days after the date of the invoice. Upon reasonable
prior Notice to Municipality Bruce Power may adjust the invoicing period to correspond to a
calendar quarter.
4.7 Overdue Payments
Should Municipality fail to make payments as they become due under this Agreement, interest at
an annual rate equal to two (2 %) percent above the Prime Rate on such unpaid amounts shall
also become due and payable until payment. Such interest shall be calculated daily from the date
on which any payment becomes due and compounded annually. If any invoice remains unpaid
for 30 days after the date of the invoice, Bruce Power may, in addition to all other remedies
available to it, and after giving to Municipality at least 30 days Notice Bruce Power's intention
to do so, discontinue all or any portion of the Services and may refuse to resume supply so long
as any past due invoice, plus the aforesaid interest, remains unpaid. If such discontinuance
continues for more than 90 consecutive days during the Term as a result of Municipality's failure
to make payments as they become due, Bruce Power may at any time after such 90 day period
immediately terminate this Agreement upon Notice to Municipality. Notwithstanding any other
provision of this Agreement, if Municipality wishes to dispute any payment or charge to which
this section relates pursuant to Article 13, it may only do so if it first pays under protest to Bruce
Power all amounts claimed by Bruce Power to be owing including any amount in dispute.
4.8 Non - payment Not Excused
Delay, reduction or interruption of the supply of Water by Bruce Power in accordance with this
Agreement shall not excuse Municipality from the continuing obligation to pay for Water
supplied prior, or subsequent, to the delay, reduction or interruption at the times that such
payment is due hereunder.
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ARTICLE 5
EFFLUENT
5.1 Use of Pipe
During the Term Municipality shall be entitled to use the Effluent Pipe to discharge up to 2,200
cubic metres of Effluent every 24 hours. Except for applicable Work costs as provided for in
section 7.6, there is no charge for this service.
5.2 Effluent Only
Only Effluent treated at the Sewage Treatment Plant and that meets the requirements of
Applicable Law for discharge into Lake Huron shall be fed into the Effluent Pipe. Municipality
will monitor the output from the Sewage Treatment Plant to ensure that only Effluent that meets
the requirements of Applicable Law for discharge into a body of water such as Lake Huron is
delivered to the Effluent Pipe. Municipality will provide Bruce Power with a copy of the final
annual report for the Bruce Energy Centre Sewage Treatment Works that Municipality submits
annually to the Ontario Ministry of the Environment.
5.3 Excess Capacity
Municipality's use of the Effluent Pipe shall be non - exclusive and any Effluent Pipe capacity in
excess of 2,200 cubic metres per 24 -hour period shall be available for use by Bruce Power or any
other Person authorized by Bruce Power in Bruce Power's sole and unfettered discretion.
ARTICLE 6
DELAY, REDUCTION OR INTERRUPTION OF SERVICES
6.1 Availability of Services
Subject to Bruce Power's rights under this Agreement to delay, reduce or interrupt the Services,
Services shall be available on an "all day — every day" basis and while Bruce Power will
endeavour to start Services to Municipality on the Commencement Date and continue that supply
thereafter, Bruce Power shall not be responsible for any Losses suffered by Municipality if the
supply of Services is delayed, reduced or interrupted from time to time regardless of the nature
or extent of or the reason for the delay, reduction or interruption even if Bruce Power was
advised by Municipality or any other Person of the potential for such Losses.
6.2 Delay, Reduction or Interruption of Services
Bruce Power may, acting reasonably, reduce, interrupt or discontinue the supply of Services at
any time and to such extent as Bruce Power deems necessary, including without limitation:
(a) for its own use if its regular supply of Water or Effluent discharge capacity is
unavailable for any reason;
(b) for safeguarding life, preventing personal injury, public health reasons,
environmental considerations or preservation or protection of property;
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(c) for ensuring the safety, stability and reliability of Bruce Power Equipment;
(d) for construction, maintenance, operation, repair, replacement, extension or
relocation of Bruce Power Equipment;
(e) where Municipality fails to operate Municipal Equipment as required by this
Agreement; and /or
(f) if there is any delay relating to the obtaining of a consent or approval from a third
party, including from a Governmental Authority under Applicable Law, which is
required for Bruce Power's operations.
6.3 Consultation/Notice of Interruption
As far as it is within its power so to do, Bruce Power shall use Commercially Reasonable Efforts
to limit the frequency and duration of reductions or interruptions in the supply of Services.
Bruce Power will provide Municipality with as much advance notice as possible of any reduction
or interruption of the supply of Services, provided that no advance notice shall be required in the
case of an actual or apprehended emergency, but notice will be given to Municipality as soon
after the reduction or interruption has started as is reasonable in the circumstances. Bruce Power
will endeavour to schedule planned reductions or interruptions of the supply of Services at times
mutually agreeable to Bruce Power and Municipality, but failing such agreement, Bruce Power
may start a planned reduction or interruption upon 10 days prior Notice to Municipality.
6.4 Mitigation by Municipality
Municipality will use Commercially Reasonable Efforts to conduct its operations and limit its
liability to its customers in order to mitigate any Losses it may suffer because of any reduction,
interruption or delay of the supply of Services.
6.5 Notification by Municipality
Municipality will promptly notify Bruce Power of any condition or matter relating to
Municipality Equipment that may affect any aspect of the Supply of Services.
6.6 Liaison
The Parties agree to establish a liaison process as a forum for consultation concerning the
Services and the administration of this Agreement. Without limiting Bruce Power's rights under
this Agreement to delay, reduce or interrupt the Services, the liaison process will include
discussing short, medium and long -term supply issues and the scheduling of planned service
outages with the intention of providing as much notice as is possible in the circumstances of any
delay, reduction or interruption in the Services.
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ARTICLE 7
METERING, MAINTENANCE, REPAIRS AND LIMITED WARRANTY
7.1 Meters
Bruce Power shall provide at its expense a Meter at or near the Terminal Point to meter the
quantity of Water supplied to Municipality under this Agreement. Calibration of the Meter shall
be conducted by and at the expense of Bruce Power and Bruce Power shall be responsible for
repairs to the Meter.
7.2 Compatibility
Municipality in its service pipe design shall ensure that a suitable length of straight pipe is
installed and maintained after the Meter, the actual length to be determined by pipe diameter and
type of Meter flow element employed. The design of this installation is subject to Bruce Power's
approval.
7.3 Estimates
If for any period any Meter or any part of the measuring process thereof, is not in service, the
amount of Water supplied during such period shall be determined by Bruce Power using the best
information available.
7.4 Meter By -pass Lines
Any Meter by -pass lines will be under Bruce Power's control and normally maintained and
tagged in the closed position.
7.5 Calibration
If Municipality, acting reasonably, suspects an erroneous reading from the Meter, Municipality
may request, and Bruce Power shall arrange to have the Meter recalibrated within 10 Business
Days of Municipality's request. If the Meter is found to be out of calibration by greater than 5%
( + / -), Bruce Power shall be responsible for costs related to the recalibration and billing will based
on immediately available information that it deems reliable to determine a reasonable adjustment
to the Water billings and adjust disputed invoices accordingly. If the Meter is found to be
calibrated within +/- 5 %, Municipality shall immediately reimburse Bruce Power for any costs it
incurred with the recalibration, and pay any outstanding invoices, plus applicable interest.
7.6 Maintenance and Repair
(a) Subject to the provisions of this section 7.6, Bruce Power shall provide repair,
maintenance, replacements and capital improvements to the Bruce Power
Equipment necessary to supply the Services and in doing so may use its own
forces and/or third party contractors, as it sees fit ( "Work "). The costs for any
Work in any calendar year as determined by Bruce Power acting reasonably based
on information known to it at the time shall be borne by the Parties as follows:
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(i) Bruce Power shall pay the first $20,000 ( "Bruce Power Work Expense
Share "); and
(ii) Municipality shall pay all amounts in excess of the Bruce Power Work
Expense Share ( "Municipality Work Expense Share ").
(b) Starting December 2011 and every December thereafter during the Term, the
Bruce Power Work Expense Share will be adjusted to reflect the change in CPI
that has occurred between October in the current calendar year and October of the
immediately preceding calendar year (with the adjusted Bruce Power Work
Expense Share taking effect as of January 1 of the following year). By way of
example, in December 2011, the change in CPI between the months of October
2010 and October 2011 will be determined and applied to adjust the then current
Bruce Power Work Expense Share and the adjusted Bruce Power Work Expense
Share will come into effect for 2012 on January 1, 2012. Any portion of the Bruce
Power Work Expense Share that is not used within the applicable calendar year
shall not be carried forward into the next or any succeeding calendar year. In no
event will Bruce Power be responsible for the cost of any Work in excess of the
Bruce Power Work Expense Share including, for clarity, any increases in the cost
of any Work over that initially anticipated by Bruce Power that increases the cost
of the Work above the Bruce Power Work Expense Share.
(c) Where the cost of any Work during any calendar year will, in Bruce Power's
reasonable opinion, exceed the Bruce Power Work Expense Share during such
calendar year or where due to unforeseen circumstances have resulted in costs that
exceed the Bruce Power Work Expense Share for such calendar year, the
following shall apply:
(i) Bruce Power shall give Municipality Notice of the Work including
reasonable details of the Work, the anticipated cost of the Work and the
anticipated amount of the Municipality Work Expense Share in connection
therewith ( "Work Notice ").
(ii) Municipality will have 30 days from receipt of a Work Notice ( "Reply
Period ") to give Bruce Power Notice either that it agrees to the Work
contemplated in the Work Notice ( "Confirmation Notice ") or that it
objects to that Work and the basis of its objection ( "Objection Notice ").
(iii) If Municipality fails to respond to a Work Notice within the Reply Period,
it shall be deemed to have delivered a Confitniation Notice within the
Reply Period.
(iv) If a Confirmation Notice is given, or is deemed to have been given,
Municipality shall, within 30 days following the expiry of the Reply
Period pay to Bruce Power or otherwise secure (in either case to the
satisfaction of Bruce Power) the Municipality Work Expense Share.
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(v) If Municipality delivers an Objection Notice within the Reply Period and
the Parties are unable to resolve the objection within the 30 days next
following the receipt by Bruce Power of the Objection Notice,
Municipality shall fund or otherwise secure (in either case to the
satisfaction of Bruce Power) the Municipality Work Expense Share
provided that such action by Municipality shall be without prejudice to but
shall be a condition precedent to Municipality referring the dispute for
resolution in accordance with Article 13.
(vi) If Municipality fails to pay or secure the Municipality Work Expense
Share as otherwise provided for in this section 7.6, Bruce Power may on
10 days Notice to Municipality discontinue all or any portion of the
Services. If such discontinuance continues for more than 90 consecutive
days during the Term as a result of Municipality's failure to pay or secure
the Municipality Work Expense, Bruce Power may at any time after such
90 day period immediately terminate this Agreement upon Notice to
Municipality. Notwithstanding any other provision of this Agreement, if
Municipality wishes to dispute any payment or charge to which this
section relates pursuant to Article 13, it may only do so if it first pays
under protest to Bruce Power all amounts claimed by Bruce Power to be
owing including any amount in dispute.
(vii) If Municipality fails to pay or secure the Municipality Work Expense
Share as otherwise provided for in this section 7.6 or if a dispute under
this section 7.6 has been referred for resolution in accordance with Article
13, Bruce Power may, without prejudice to its position in any such
resolution of the dispute and otherwise in its absolute and unfettered
discretion, proceed with all or part of the Work or hold the Work in
abeyance for such period as it sees fit.
(viii) For clarity, the Municipality Work Expense Share provided in any Work
Notice will be an estimated amount and the final amount of the
Municipality Work Expense Share shall be subject to an appropriate
upward or downward adjustment once the final cost of the Work has been
determined.
(d) Notwithstanding any of the foregoing provisions of this section 7.6, if in Bruce
Power's reasonable opinion based on information known to it at the time Work is
required to respond to an actual or apprehended emergency which involves, or if
not dealt with, is likely to involve injury to persons or property, Bruce Power may
proceed immediately to have such Work performed without notice to
Municipality and without prejudice to Bruce Power's right to claim the
Municipality Work Expense Share. Bruce Power will advise Municipality as
soon as reasonably practical or possible of the situation and the required Work
whereupon Municipality will fund or provide security for the cost of the Work as
otherwise provided in this section 7.6.
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7.7 Limited Warranty
Notwithstanding section 7.6, for a period of two years following the Commencement Date (the
"Limited Warranty Period "), Bruce Power will pay for the cost of repairs required due to a
condition of the Sewage Treatment Plant and the Water Tower (but excluding the land associated
with the Sewage Treatment Plant and the Water Tower) not identified in any way through
Municipality's due diligence review, including, but not limited to, the Ross Report) ( "Limited
Warranty "). Provided however that the following are specifically excluded from the Limited
Warranty:
(a) replacements;
(b) normal wear and tear;
(c) any repairs required due to improper maintenance or operation during the Limited
Warranty Period;
(d) damage due to perils that a prudent owner of similar assets would insure against;
(e) damage caused by Force Majeure Events; and
(f) repairs that do not individually during the Limited Warranty Period cost less than
$25,000 and in any event Municipality will be responsible for the first $25,000 of
any repairs for which Bruce Power is liable to pay for in accordance with this
section 7.7.
7.8 Labour Rates
For the purposes of this Agreement all estimates made by Bruce Power relating to the cost of any
repairs, maintenance, replacements or capital improvements shall, absent manifest error, govern.
Municipality acknowledges that all costs incurred by Bruce Power in connection with this
Agreement that are on a time and materials basis will be costed and charged at the then
applicable labour rates under Bruce Power's collective agreements prevailing at the time the
work is undertaken.
ARTICLE 8
MUNICIPALITY'S EQUIPMENT AND OPERATIONS
8.1 Municipality Equipment
Municipality will use Commercially Reasonable Efforts to see that Municipality Equipment
conforms to "industry standards" for its intended purpose and shall not knowingly use
Municipality Equipment that is not compatible with Bruce Power Equipment. If Municipality
Equipment includes substandard parts, whether or not known to Municipality, Municipality will
indemnify and save Bruce Power harmless from any Losses it suffers as a result. If Bruce Power
identifies any substandard Municipality Equipment, Municipality will take appropriate steps to
replace it with "industry standard ".
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8.2 Maintenance of Municipality Equipment
Municipality agrees to maintain, provide and install Municipality Equipment according to
technical conditions as may be required for safe and economical supply of Services pursuant to
this Agreement. The current applicable technical conditions are as follows:
(a) Connection Point and Scope of Supply - Water
(i) The connection point will be the Terminal Point or as determined by
Bruce Power.
(ii) Municipality must supply all materials on Municipality's side of the
Terminal Point.
(b) Design Criteria - Water
(i) Municipality Equipment shall be designed to be capable of withstanding
water pressures of up to 690 Kpa (100 pounds per square inch gauge).
(ii) Watermains shall conform to AWWA standards as applicable.
(c) Process Design — Water
(i) Municipality's processes shall be designed to accept occasional
interruptions.
(d) Connection Point and Scope of Supply - Effluent
(i) The connection point will be the Terminal Point or as determined by
Bruce Power.
(ii) Municipality must supply all materials on Municipality's side of the
Terminal Point.
(e) Design Criteria - Effluent
(i) Municipality Equipment shall be designed to discharge Effluent that meets
or exceeds the Certificate of Approval requirements for the Sewage
Treatment Plant.
(ii) Effluent mains shall conform to AWWA standards as applicable.
(f) Process Design — Effluent
(i) Municipality's processes must be designed to accept occasional
interruptions.
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The foregoing may be amended as considered necessary by Bruce Power in which event a
reasonable period of notice shall be provided to Municipality for compliance with any revised
technical conditions.
8.3 No Liability
Bruce Power shall not be liable for any loss, damage or injury to Municipality due in any way to
any failure on the part of Municipality to meet the technical conditions as set forth in this Article
8.
8.4 Permits and Approvals
Each Party will obtain and maintain all necessary federal, provincial, municipal or other
governmental or administrative approvals for all aspects of its own works.
8.5 Insurance
During the Term:
(a) Municipality currently maintains and will maintain during the Term the following
insurance coverages:
(i) Municipal general liability including non -owned automobile liability
insurance with limits of $5,000,000 inclusive re bodily injury and property
damage per occurrence and $5,000,000 aggregate with respect to
products /completed operations.
(ii) Umbrella liability insurance with limit of $45,000,000 inclusive re bodily
injury and property damage per occurrence.
(iii) All risks property insurance with limits $59,354,536 property broad form
with $5,000 deductible.
(iv) Owned or leased automobile liability and physical damage insurance with
limits $5,000,000 inclusive re bodily injury and property damage per
occurrence with $5,000 all perils deductible.
(v) Boiler and Machinery (accident to object) with limits $5,000 each direct
damage accident.
(b) The Indemnified Persons shall be shown as additional insureds on all policies of
Municipality.
(c) Municipality will during the Term periodically increase or otherwise maintain
such limits of insurance coverage as would a prudent municipal government in
Ontario.
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(d) Municipality shall provide Bruce Power with a certificate from its insurers or their
authorized representatives confirming that the foregoing coverages and other
requirements are in effect. During the Term, but not more frequently than
annually, Bruce Power may request, and Municipality shall provide, current
evidence that the foregoing coverages and other requirements remain in effect.
ARTICLE 9
SEWAGE TREATMENT CAPACITY ALLOCATION
9.1 Sewage Capacity Waiver
If during the seven years next following the Commencement Date (the "Sewage Capacity
Waiver Period ") Bruce Power builds a facility outside of the Bruce Power Site that requires
sewage treatment service and/or Bruce Power wishes to connect the facility commonly known as
the Visitor Centre, any associated development or similar charge allocation for sewage capacity
for such facility will be deemed to have been paid ( "Sewage Capacity Waiver "). If not utilized
within the Sewage Capacity Waiver Period, the Sewage Capacity Waiver shall be automatically
extended for a further seven years. This provision shall survive the termination of this
Agreement for the then remaining duration of the Sewer Capacity Waiver or any extension
thereof.
9.2 Reservation
During the Sewage Capacity Waiver Period or any extension thereof, Municipality shall
maintain a reserve of at least 200 cubic metres in each 24 -hour period to accommodate any new
facility that Bruce Power may build and /or the Visitor Centre as contemplated in section 9.1.
Bruce Power shall pay for the treatment of any sewage from its new facility and/or the Visitor
Centre at the then prevailing rates charged by Municipality for similar customers. This provision
shall survive the termination of this Agreement for the then remaining duration of the Sewer
Capacity Waiver or any extension thereof.
9.3 Mutual Aid for Bruce Power
Bruce Power maintains its own separate facilities for treatment of sewage generated by its
operations at the Bruce Power Site (the "Bruce Power Treatment Facility ") that are separate
and unconnected to the Sewage Treatment Plant and facilities of Municipality. If, due to an
emergency or other unforeseen situation, Bruce Power is unable to use all or part of the Bruce
Power Treatment Facility for any extended period, Municipality will, at Bruce Power's request,
and to the extent that it has treatment capacity, provide sewage treatment services to Bruce
Power at a cost equal to the actual incremental cost incurred by Municipality over the cost it
otherwise would have incurred for treating sewage during the same period. The decision to
accept waste will be at Municipality's sole and unfettered discretion.
9.4 Mutual Aid for Municipality
If, due to an emergency or other unforeseen situation, Municipality is unable to use the Sewage
Treatment Plant for any extended period, Bruce Power will at Municipality's request, and to the
extent that it has treatment capacity, provide sewage treatment services to Municipality at a cost
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equal to the actual incremental cost incurred by Bruce Power over the cost it otherwise would
have incurred for treating sewage during the same period. The decision to accept waste will be at
the Bruce Power's sole and unfettered discretion.
9.5 Connections
The Parties agree to maintain any current connection facilities in place in order to facilitate any
exercise of the rights provided for in sections 9.3 and 9.4.
ARTICLE 10
MUNICIPALITY IN DEFAULT
10.1 Default
(a) If:
(i) Municipality fails to perform any obligation under this Agreement;
(ii) no specific right to cure the default constituted by such failure is provided
for in this Agreement;
(iii) such default is susceptible to cure by Municipality; and
(iv) Bruce Power has given Notice to Municipality describing the default
( "Notice of Default "),
(v) then Municipality shall have 30 days following the Notice of Default to
cure the default (or such longer period as Bruce Power acting reasonably
may agree to as detailed in a plan to cure the default to be provided by
Municipality to Bruce Power within 15 days of Bruce Power's Notice of
Default). If the default is not cured within said 30 days or such longer
period agreed to by Bruce Power, Bruce Power may, at any time
thereafter, terminate this Agreement on Notice to Municipality.
(b) If Municipality fails to perform any obligation under this Agreement and such
default constituted by such failure is not susceptible to cure by Municipality,
Bruce Power may terminate this Agreement on Notice to Municipality at any time
following the default.
(c) This section 10.1 shall not apply to a default to which section 4.7 or section 7.6
apply.
10.2 Additional Rights
(a) The right to discontinue the supply of Services in this Article 10 is in addition to,
and not in limitation of, any other right available to Bruce Power under this
Agreement or at law in connection with a breach of this Agreement by
Municipality and shall not be construed as a breach of contract by Bruce Power.
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Any such discontinuance shall not relieve Municipality from its obligations to pay
for Water as provided in this Agreement or prejudice Bruce Power's rights in
connection with the Sewage Capacity Waiver.
(b) Whenever this Agreement provides that Bruce Power has the right to terminate
this Agreement due to an incurable or uncured default on the part of Municipality
Bruce Power may in its sole and unfettered discretion, elect by Notice to
Municipality to discontinue any Service instead of terminating this Agreement
provided that such election shall be without prejudice to Bruce Power's right to
terminate this Agreement at any time after such election on 30 days Notice to
Municipality.
ARTICLE 11
LIABILITY
11.1 Indemnity
Municipality shall indemnify and hold harmless Bruce Power and its partners and OPG and its
affiliates and each of their respective partners, officers, directors, employees, agents and those
for whom they are in law responsible (collectively, "Indemnified Persons ") from any and all
Losses due to third party Claims due to, in connection with, arising out of or in any way related
to the Services, including, without limitation: (i) any third party Claim alleging bodily injury,
including death, or property damage caused or contributed to by the negligence, gross negligence
or wilful misconduct of Municipality or those for whom it is in law responsible; (ii) any third
party Claim due to, connected to, arising out of or in any way related to any interruption or
suspension or termination of Services in circumstances where Bruce Power is not to be liable to
Municipality under this Agreement, from any customer of Municipality relating to the supply of
Services based on any incident or occurrence that occurs after the Commencement Date; and (iii)
any Effluent or other material, other than Effluent that meets or exceeds the requirements in that
regard under any Approval for the operation of the Sewage Treatment Plant, being introduced
into the Effluent Pipe from Municipality Equipment ( "Discharge Claim "). Bruce Power shall
promptly advise Municipality of any such Claim or Discharge Claim pursuant to the notice
provisions of this Agreement. Municipality acknowledges that Bruce Power holds the benefit of
the foregoing indemnity in trust for those Indemnified Persons who are not parties to this
Agreement. The indemnities provided in this section 11.1 shall survive the expiration or earlier
termination of this Agreement indefinitely or for the longest period permitted by Applicable
Law.
11.2 Exclusion of Certain Damages
Subject to an Indemnified Person's right to claim indemnity for Losses pursuant to section 11.1,
in no event, whether in contract, tort or otherwise (including breach of warranty, negligence and
strict liability in tort), will a Party be liable to the other Party for Indirect Losses even if such
Party has been advised of the possibility of such damages in advance and even if a remedy set
forth herein is found to have failed of its essential purpose provided, however, that this exclusion
will not apply to a Discharge Claim.
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11.3 Limit of Liability
To the fullest extent permitted by law, Bruce Power's total liability for damages, or otherwise,
resulting from its performance or non - performance under this Agreement or with regards to any
other obligations /responsibilities herein (excepting only Bruce Power's obligations pursuant to
section 7.7) shall not exceed $50,000 in the aggregate over the Term.
11.4 Assumption of Risk
Municipality shall assume all risk, liability or obligation in respect to all damage to Bruce Power
Equipment caused or contributed to by acts or omissions of Municipality or those for whom it is
responsible in law and the cost of any damage to Municipality Equipment that may occur due to
the operation of Bruce Power Equipment.
11.5 Benefit of the Release, Waiver and Indemnity
Municipality acknowledges that Bruce Power shall hold the benefit of any indemnities, releases
and covenants in this Agreement intended to benefit any Person other than Bruce Power,
including the benefit of sections 11.1 and 11.2 as they pertain to OPG or any other Person
referred to therein but not a Party or signatory to this Agreement in trust for the benefit of such
Persons and that any of the foregoing provisions and any other indemnity, release or covenant
provided in favour of Bruce Power in this Agreement, unless specifically provided to the
contrary, shall be enforceable by such Person against Municipality and this section 11.5 shall
survive the expiration or earlier termination of the Term for the maximum period permitted by
Applicable Law.
ARTICLE 12
NOTICES
12.1 Notices
Any notice or other communication required or permitted to be given under this Agreement
(collectively, "Notice "), unless specifically provided for to the contrary in this Agreement, shall
be in writing and shall be given by prepaid first class mail, by facsimile or other means of
electronic communication or by hand delivery as provided below. Any Notice, if mailed by
prepaid first class mail at any time other than during a general discontinuance of postal service
due to strike, lockout or otherwise, shall be deemed to have been received on the fourth Business
Day after the post marked date thereof. Any Notice or other communication, if sent by facsimile
or other means of electronic communication, shall be deemed to have been received on the
Business Day following the sending, or if delivered by hand, shall be deemed to have been
received at the time it is delivered to the applicable address noted below either to the individual
designated below or to an individual at such address having apparent authority to accept
deliveries on behalf of the addressee. Notice of change of address shall also be governed by this
section 12.1. In the event of a general discontinuance of postal service due to strike, lock -out or
otherwise, Notices shall be sent by facsimile or other means of electronic communication and
shall be deemed to have been received in accordance with this section 12.1. Notices shall be
addressed as follows:
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(a) If to Municipality, to:
(i) Municipality of Kincardine
1475 Concession 5 RR #5
Kincardine Ontario N2Z 2X6
Attention: CAO
Telecopier number: (519) 396 -8288
(ii) (ii) with copy to:
Municipality of Kincardine
1475 Concession 5 RR #5
Kincardine Ontario N2Z 2X6
Attention: Public Works Department
Telecopier number: (519) 396 -8288
(iii) with a copy to the Municipality's counsel at:
Magwood, Van De Vyvere, Thompson & Grove — McClement
Banisters & Solicitors
215 Durham Street
Walkerton, Ontario,
NOG 2V0
Attention: George Magwood
Facsimile No.: 519 -881 -3595
(b) if to Bruce Power, to:
(i) Bruce Power
P.O. Box 1540, B10
177 Tie Road
Municipality of Kincardine
R.R. #2
Tiverton, Ontario NOG 2T0
Attention: Executive Vice - President and General Counsel
Fax No. (519) 361 -4333
(ii) and to:
Bruce Power
P.O. Box 1540, B10
177 Tie Road
Municipality of Kincardine
R.R. #2
Tiverton, Ontario NOG 2T0
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Attention: Operations Manager — Property Management
Fax No. (519) 361 -1797
(c) Any written correspondence regarding day -to -day activities between Bruce Power
and Municipality shall be deemed properly given if faxed, mailed or delivered as
follows:
(i) on behalf of Municipality, to:
Municipality of Kincardine
1475 Concession 5 RR #5
Kincardine Ontario N2Z 2X6
Attention: Public Works Department
Telecopier number: (519) 396 -8288
(ii) on behalf of Bruce Power, to:
Bruce Power
P.O. Box 1540, B10
177 Tie Road
Municipality of Kincardine
R.R. #2 Tiverton, Ontario
NOG 2T0
Attention: Operations Section Manager
Fax No.: (519) 361 -5777
(d) Any verbal correspondence regarding the day -to -day activities between Bruce
Power and Municipality shall be made to:
(i) Operations Section Manager (telephone number 361 -2673 ext. 15558), or
alternatively,
(ii) 2nd — Duty Shift, Boilers and Systems Supervisor (telephone number 361-
2673 Ext. 14551).
ARTICLE 13
DISPUTE RESOLUTION
13.1 Negotiation
If any dispute between the Parties arises under or in connection with this Agreement that is not
resolved through the liaison process referred to in section 6.6, the representatives of each Party
under the liaison process shall promptly advise its senior management, in writing, of such
dispute. Within seven Business Days following delivery of such Notice, a senior manager from
each Party shall meet, either in person or by telephone (the "Senior Conference "), to attempt to
resolve the dispute. Each senior manager shall be prepared to propose a solution to the dispute.
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If the dispute is not resolved within 30 days following the Senior Conference, either Party may
deliver an Arbitration Request in accordance with the procedures in this Article. If neither Party
delivers an Arbitration Request within one year following the Senior Conference, the Parties
shall be deemed to have waived their claims as to such matters.
(a) Binding Arbitration. Any matter in issue between the Parties as to their rights
under this Agreement may be decided by arbitration at the election of either Party;
provided, however, that the Parties have first completed a Senior Conference
pursuant to this section 13.1 and satisfied any other preconditions to dispute
resolution specifically provided elsewhere in this Agreement. To initiate
arbitration a Party may deliver a notice of dispute and request for arbitration (an
"Arbitration Request ") to the other Party. Any dispute to be decided by
arbitration will be decided by a single arbitrator appointed by the Parties or, if
such Parties fail to appoint an arbitrator within 15 days following the receipt of an
Arbitration Request, upon the application of either of the Parties, the arbitrator
shall be appointed by a Judge of the Superior Court of Justice (Ontario) sitting at
Walkerton, Ontario. The arbitrator shall not have any current or past business or
financial relationships with any Party (except prior arbitration). The arbitrator
shall provide each of the Parties an opportunity to be heard and shall conduct the
arbitration hearing in accordance with the provisions of the Arbitration Act, 1991
(Ontario). Unless otherwise agreed by the Parties, the arbitrator shall render a
decision within 90 days after the end of the arbitration hearing and shall notify the
Parties in writing of such decision and the reasons therefor. The arbitrator shall
be authorized only to interpret and apply the provisions of this Agreement and
shall have no power to modify or change the Agreement in any manner. The
decision of the arbitrator shall be conclusive, final and binding upon the Parties.
The decision of the arbitrator may be appealed solely because the conduct of the
arbitrator, or the decision itself, violated the provisions of the Arbitration Act,
1991 (Ontario) or solely on a question of law as provided for in the Arbitration
Act, 1991 (Ontario). The Arbitration Act, 1991 (Ontario) shall govern the
procedures to apply in the enforcement of any award made. If it is necessary to
enforce such award, all costs of enforcement shall be payable and paid by the
Party against whom such award is enforced. Each Party shall be otherwise
responsible for its own costs incurred during the arbitration process.
(b) Confidentiality. The arbitration proceedings conducted pursuant hereto shall be
confidential. Neither Party shall disclose or permit the disclosure of any
information about the evidence adduced or the documents produced by any Party
in the arbitration proceedings or about the existence, contents, or results of the
arbitration award without the prior written consent of such other Party except as
required by order during the course of a judicial or regulatory proceeding or as
required by a Governmental Authority, or as required pursuant to the Municipal
Freedom of Information and Protection of Privacy Act (Ontario) so long as the
Party intending to make such disclosure shall give the other Party prompt notice
of the disclosure request to afford the other Party opportunity to protect its
interests.
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ARTICLE 14
GENERAL CONTRACT PROVISIONS
14.1 Waiver
Any failure by either Party to exercise any right or enforce any remedy under this Agreement
shall be limited to the particular instance, and shall not be deemed to be a waiver of any other
right or remedy or affect the validity of this Agreement. The exercise by either Party of any
rights or remedy hereunder shall not be deemed to waive any other rights or remedy that such
Party may have, and such rights or remedies may be exercised and continued concurrently or
separately.
14.2 Force Majeure
(a) Neither Party shall be held responsible or liable, either directly or indirectly, or be
deemed in default or in breach of this Agreement for any loss, damage, detention,
delay, failure or inability to meet any of its commitments hereunder caused by or
arising from any cause which is unavoidable or beyond its reasonable control,
including without limitation war, hostilities, invasion, insurrection, riot, the order
of, the action or the failure to act by, any competent civil government (including
the Government of Canada, or any provincial or local government thereof or any
statutory tribunal of competent jurisdiction), explosion, fire, strikes, lockouts or
labour disputes (collectively, "Force Majeure Events ") and the time or times
provided for hereunder for performance by both parties shall be extended for a
period equivalent to the time any such cause was preventing performance together
with any further extension of time as the parties may mutually agree upon.
(b) If either Party is unable to perform its obligations hereunder due to a force
majeure cause, it shall so notify the other Party in writing, stating the cause and
shall use its best endeavour to remove such cause provided, however, that neither
Party shall be obligated to resolve or terminate any disagreement with third
parties including labour disputes except under conditions acceptable to it or
pursuant to the final decision of any arbitral, judicial or statutory agency having
jurisdiction to finally resolve the disagreement.
14.3 Public Notices
Municipality shall jointly plan and co- ordinate with Bruce Power any public notices, press
releases, and any other publicity of Municipality concerning this Agreement and Municipality
shall not act in this regard without the prior approval of Bruce Power, unless such disclosure is
required to meet timely disclosure obligations of any Party under Applicable Law and stock
exchange rules in circumstances where prior consultation with Bruce Power is not practicable
and a copy of such disclosure is provided to Bruce Power at such time as it is made to the
regulatory authority. Bruce Power shall have the right to make such press releases, without
consultation or approval of Municipality, which Bruce Power deems in its sole discretion are
required. This provision shall survive expiry of the Term for a period of 2 years.
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14.4 Successors and Assigns
This Agreement shall extend to, be binding upon and enure to the benefit of Bruce Power and of
Municipality and their respective successors and permitted assigns (including any successor due
to amalgamation of any Party). Municipality may not assign this Agreement or any rights or
obligations under this Agreement without the prior written consent of Bruce Power, which
consent may be unreasonably withheld in the sole and unfettered discretion of Bruce Power. For
greater certainty, Bruce Power may assign its rights or obligations under this Agreement to any
third party who is an owner or tenant of the Bruce Power Site at any time immediately upon
Notice to Municipality. Upon such assignee providing a written acknowledgement in favour of
Municipality that the assignee assumes and is bound by the provisions of this Agreement, Bruce
Power will have no further obligations or liability to Municipality under this Agreement.
14.5 Entire Agreement
This Agreement, the Schedules attached hereto, and the agreements and other documents
required to be delivered pursuant to this Agreement, if any, constitute the entire agreement
between the Parties and sets out all the covenants, promises, warranties, representations,
conditions, understandings and agreements between the Parties pertaining to the subject matter
of this Agreement and supersede all prior agreements, understandings, negotiations and
discussions, whether oral or written between the Parties with respect thereto and sets forth the
entire, complete and exclusive understanding between the Parties relating to the subject matter
hereof. There are no covenants, promises, warranties, representations, conditions,
understandings or other agreements, oral or written, express, implied or collateral between the
Parties in connection with the subject matter of this Agreement except as specifically set forth in
this Agreement and any document required to be delivered pursuant to this Agreement. Except
as may be expressly provided to the contrary elsewhere in this Agreement, neither this
Agreement nor any provision hereof is intended to confer upon any person other than the Parties
any benefits or any rights or remedies hereunder. The execution of this Agreement by the Parties
has not been induced by, nor do either of the Parties rely upon or regard as material, any
representations, writings covenants, promises, warranties, conditions, understandings and
agreements whatsoever not incorporated herein and made part hereof.
14.6 Applicable Law
This Agreement shall for all purposes be construed and interpreted according to the laws in force
in the Province of Ontario.
14.7 Amendments
No amendment, supplement, modification or waiver or termination of this Agreement and,
unless otherwise specified, no consent or approval by any Party, shall be binding unless executed
in writing by the Party to be bound thereby.
14.8 Confidentiality
(a) Except as authorized in writing by the other Party, or as contemplated herein,
each Party shall keep confidential all proprietary and confidential information of
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the other made available to it as a result of this Agreement, whether or not marked
as such, including, without limitation, all unpublished business and technical
information, papers, or records, however produced. These obligations of
confidentiality shall survive expiration or earlier termination of this Agreement
indefinitely or for the longest period permitted by Applicable Law.
(b) Notwithstanding section 14.8(a) each Party may disclose confidential information
of the other Party where:
(i) it discloses such to a court or arbitrator which has jurisdiction in a
particular legal claim, dispute or order;
(ii) it discloses such to business entities that are parent companies or
subsidiaries of it or any such parent company or an affiliated company of
any of the foregoing, and in the case of Bruce Power including Bruce
Power A L.P., OPG and its Subsidiaries (collectively, the "Group ");
(iii) it discloses such to any of its directors, officers, employees, agents and
professional advisors of it or of its Group or of a third party who have a
commercially legitimate need -to -know and agree in writing to maintain
confidentiality;
(iv) it received that information independently;
(v) the information becomes public through no breach of this Agreement; or
(vi) it is information of the Group that Municipality has been ordered to
disclose pursuant to the Municipal Freedom of Information and Protection
of Privacy Act (Ontario) after Bruce Power exhausted all available appeals
against any such order.
14.9 Execution and Delivery
This Agreement may be executed by the Parties in counterparts and may be executed and
delivered by facsimile and all such counterparts and facsimiles shall together constitute one and
the same agreement.
14.10 Severability
Each of the provisions contained in this Agreement are distinct and severable and a declaration
of invalidity or unenforceability of any such provision or part thereof by a court of competent
jurisdiction shall not affect the validity or enforceability of any other provision of this
Agreement. To the extent permitted by Applicable Law, the Parties waive any provision of
Applicable Law that renders any provision of this Agreement invalid or unenforceable in any
respect. The Parties shall engage in good faith negotiations to replace any provision which is
declared invalid or unenforceable with a valid and enforceable provision, the economic effect of
which comes as close as possible to that of the invalid or unenforceable provision which it
replaces.
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14.11 Further Assurances
Each of the Parties shall promptly do, make, execute, deliver, or cause to be done, made,
executed or delivered, all such further acts, documents and things as the other hereto may
reasonably require from time to time for the purpose of giving effect to this Agreement and shall
use reasonable efforts and take all such steps as may be reasonably within its power to
implement to their full extent the provisions of this Agreement.
14.12 Preparation of Agreement
The terms and conditions of this Agreement are the result of negotiations between the Parties and
the Parties agree that this Agreement shall not be construed in favour of or against any Party
because of the extent that any Party or its professional advisors participated in the preparation of
this Agreement.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly
authorized representatives as of the date first above written.
THE CORPORATION OF THE MUNICIPALITY OF
KINCARDINE
By:
Name: Larry Kraemer
Title: Mayor
By:
Name: •
Title: CAO
BRUCE POWER L.P., by its General Partner,
BRUCE POWER INC.
By:
Name: John Sauger
Title: Executive Vice President, Project Management
and Construction
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By:
Name: Brian Armstrong, Q.C.
Title: Executive Vice President and General Counsel
[END OF SCHEDULE 2.4]
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SCHEDULE 2.6.2
FORM OF OPG EASEMENT AGREEMENT
[To be attached to a Transfer /Deed of Land]
Additional Property identifier(s) and /or Other Information
Easement for Municipal Services
WHEREAS the Transferor is the owner in fee simple of those lands and premises more
particularly described in the attached transfer of easement (hereinafter called the "Transferor's
lands ").
WHEREAS the Transferee is a municipal corporation which wishes to install and maintain
services on the Transferor's lands for the purpose of providing municipal services including
sanitary sewers, and a water delivery system.
The Transferor does hereby GRANT, CONVEY, TRANSFER AND CONFIRM unto the
Transferee, its successors and assigns the right, liberty, privilege and easement on, over, in,
under and/or through the Transferor's lands more particularly described as ■
(hereinafter referred to as the "the said lands ") to survey, lay, construct, maintain, inspect, patrol,
alter, remove, replace, reconstruct, repair, move, keep, use and/or operate pipe lines for the
transmission of sewage and water including therewith all such buried attachments, equipment
and appliances for cathodic protection, both above and below ground which the Transferee may
deem necessary or convenient thereto, together with the right of ingress and egress at any and all
times over, and under the said lands for its servants and agents, employees and those engaged in
its business and their contractors and sub - contractors on foot and/or with vehicles, supplies,
machinery and equipment for all purposes necessary or incidental to the exercise and enjoyment
of the rights, privileges and easements hereby granted.
The parties hereto mutually covenant and agree with each other as follows:
1. Consideration for the rights and interest granted herein shall be the sum of $1.00 of
lawful money of Canada (hereinafter called "the consideration "), the acceptance of which is
hereby acknowledged by the Transferor, which sum is payment in full for the rights and interest
hereby granted, injurious affection to remaining lands and the effect, if any, of registration on
title of this document the rights, privileges and easement hereby granted shall continue in
perpetuity or until the Transferee shall execute and deliver a surrender thereof.
2. The Transferee shall make to the Transferor due compensation for any physical damages
to the said lands resulting from the exercise of any of the rights herein granted, and if the
compensation is not agreed upon by the Transferee and the Transferor, it shall be determined by
arbitration in the manner prescribed by the Ontario Arbitrations Act, 1991 or any Act passed in
amendment thereof or substitution therefore. Any gates, fences and tile drains interfered with by
the Transferee shall be restored by the Transferee at its expense as closely as reasonably
practicable to the condition in which they existed immediately prior to such interference by the
Transferee and in the case of tile drains, such restoration shall be performed in accordance with
good drainage practice.
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3. The said i e lines (including attachments, equipment and a
p P ( g � appliances for cathodic
protection but excluding valves, take -offs and fencing installed under Clause 7 hereof) (but
excluding any pipes in place as of the date of this easement) shall be laid to such a depth that
upon completion of installation it will not obstruct the natural surface run -off from the said lands
nor ordinary cultivation of the said lands nor any tile drainage system existing in the said lands at
the time of installation of the said pipe line, provided that the Transferee may leave the said pipe
line exposed in crossing a ditch, steam, gorge or similar object.
4. As soon as reasonably practicable after any construction of the said services, the
Transferee shall level the said lands and unless otherwise agreed to by the Transferor, shall
remove all debris therefrom and in all respects restore the said lands to their former state so far as
is practical.
5. The Transferee shall indemnify the Transferor for all losses, costs, damages, claims,
injuries, actions and causes of actions which are attributable to the exercise of the rights hereby
granted, except to the extent that the losses, costs, damages, claims, injuries, actions and causes
of actions have been caused by the negligence or wilful misconduct of the Transferor.
6. In the event that the Transferee fails to comply with any of the requirements set out in
Clause 2, 3, or 4 hereof within a reasonable time of the receipt of notice in writing from the
Transferor setting forth the failure complained of, the Transferee shall compensate the Transferor
(or the person or persons entitled thereto) for any damage, if any, necessarily resulting from such
failure.
7. The Transferor shall have the right to fully use and enjoy the said lands except as may be
necessary for any of the purposes hereby granted to the Transferee, provided that without the
prior written consent of the Transferee, not to be unreasonably withheld, delayed or conditioned,
the Transferor shall not excavate, drill, install, erect or permit to be excavated, drilled, installed
or erected in, on, over or through the said lands any pit, well, foundation, pavement, building,
mobile homes or other structure or installation. Notwithstanding the foregoing the Transferor
may erect or repair fences, construct or repair its tile drains and construct or repair its lanes,
roads, driveways, pathways, and walks across, on and in the said lands or any portion or portions
thereof, provided that any such work is performed in such a manner as not to damage the said
pipe line.
8. Notwithstanding any rule of law or equity and even though the said pipe line and its
appurtenances may become annexed or affixed to the realty, title thereto shall nevertheless
remain in the Transferee.
9. The burden of this easement shall run with the said lands and shall extend to and be
binding upon the Transferor, its successors and assigns, and shall enure to the benefit of the
Transferee, its successors and assigns.
[end of schedule 2.6.2]
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SCHEDULE 2.6.3
FORM OF THIRD PARTY EASEMENT
[To be attached to Transfer/Deed of Land]
Easement for Municipal Services
WHEREAS the Transferor is the owner in fee simple of those lands and premises more
particularly described in the attached transfer of easement (hereinafter called the "Transferor's
lands ").
WHEREAS the Transferee is a municipal corporation which wishes to install and maintain
services on the Transferor's lands for the purpose of providing municipal services including
sanitary sewers, and a water delivery system.
The Transferor does hereby GRANT, CONVEY, TRANSFER AND CONFIRM unto the
Transferee, its successors and assigns the right, liberty, privilege and easement on, over, in,
under and/or through the Transferor's lands more particularly described as •
(hereinafter referred to as the "the said lands ") to survey, lay, construct, maintain, inspect, patrol,
alter, remove, replace, reconstruct, repair, move, keep, use and/or operate pipe lines for the
transmission of sewage and water including therewith all such buried attachments, equipment
and appliances for cathodic protection, both above and below ground which the Transferee may
deem necessary or convenient thereto, together with the right of ingress and egress at any and all
times over, and under the said lands for its servants and agents, employees and those engaged in
its business and their contractors and sub - contractors on foot and/or with vehicles, supplies,
machinery and equipment for all purposes necessary or incidental to the exercise and enjoyment
of the rights, privileges and easements hereby granted.
The parties hereto mutually covenant and agree with each other as follows:
1. Consideration for the rights and interest granted herein shall be the sum of $1.00 of
lawful money of Canada (hereinafter called "the consideration "), the acceptance of which is
hereby acknowledged by the Transferor, which sum is payment in full for the rights and interest
hereby granted, injurious affection to remaining lands and the effect, if any, of registration on
title of this document the rights, privileges and easement hereby granted shall continue in
perpetuity or until the Transferee shall execute and deliver a surrender thereof.
2. The Transferee shall make to the Transferor due compensation for any physical damages
to the said lands resulting from the exercise of any of the rights herein granted, and if the
compensation is not agreed upon by the Transferee and the Transferor, it shall be determined by
arbitration in the manner prescribed by the Ontario Arbitrations Act, 1991? or any Act passed in
amendment thereof or substitution therefore. Any gates, fences and tile drains interfered with by
the Transferee shall be restored by the Transferee at its expense as closely as reasonably
practicable to the condition in which they existed immediately prior to such interference by the
Transferee and in the case of tile drains, such restoration shall be performed in accordance with
good drainage practice.
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3. The said pipe lines (including attachments, equipment and appliances for cathodic
protection but excluding valves, take -offs and fencing installed under Clause 8 hereof) (but
excluding any pipes in place as of the date of this easement) shall be laid to such a depth that
upon completion of installation it will not obstruct the natural surface run -off from the said lands
nor ordinary cultivation of the said lands nor any tile drainage system existing in the said lands at
the time of installation of the said pipe line, provided that the Transferee may leave the said pipe
line exposed in crossing a ditch, steam, gorge or similar object.
4. As soon as reasonably practicable after any construction of the said services, the
Transferee shall level the said lands and unless otherwise agreed to by the Transferor, shall
remove all debris therefrom and in all respects restore the said lands to their former state so far as
is practical.
5. The Transferee shall indemnify the Transferor for all losses, costs, damages, claims,
injuries, actions and causes of actions which are directly attributable to the exercise of the rights
hereby granted, except to the extent that the losses, costs, damages, claims, injuries, actions and
causes of actions have been caused by the negligence or wilful misconduct of the Transferor.
6. In the event that the Transferee fails to comply with any of the requirements set out in
Clauses 2, 3 and 4 hereof within a reasonable time of the receipt of notice in writing from the
Transferor setting forth the failure complained of, the Transferee shall compensate the Transferor
(or the person or persons entitled thereto) for any damage, if any, necessarily resulting from such
failure.
7. Except in case of emergency, the Transferee shall not enter upon any lands of the
Transferor, other than the said lands, without the consent of the Transferor. In case of
emergency, the right of entry upon the Transferor's lands for ingress and egress to and from the
said lands is hereby granted.
8. The Transferor shall have the right to fully use and enjoy the said lands except as may be
necessary for any of the purposes hereby granted to the Transferee, provided that without the
prior written consent of the Transferee, the Transferor shall not excavate, drill, install, erect or
permit to be excavated, drilled, installed or erected in, on, over or through the said lands any pit,
well, foundation, pavement, building, mobile homes or other structure or installation.
Notwithstanding the foregoing the Transferee upon request shall consent to the Transferor
erecting or repairing fences, constructing or repairing his tile drains and construction or repairing
his lanes, roads, driveways, pathways, and walks across, on and in the said lands or any portion
or portions thereof, provided that before commencing any of the work referred to in this sentence
the Transferor shall (a) give the Transferee at least thirty (30) clear days notice in writing
pointing out the work desired so as to enable the Transferee to evaluate the work and to have a
representative inspect the site and/or be present at any time or times during the performance of
the work, (b) shall follow the instructions of such representatives as to the performance of such
work without damage to the said pipe line, (c) shall exercise a high degree of care in carrying out
any such work and, (d) shall perform any such work in such a manner as not to endanger or
damage the said pipe line as may be required by the Transferee.
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9. Notwithstanding any rule of law or equity and even though the said pipe line and its
appurtenances may become annexed or affixed to the realty, title thereto shall nevertheless
remain in the Transferee.
10. The Transferor covenants that he has the right to convey this easement notwithstanding
any act on his part, that he will execute such further assurances of this easement as may be
requisite and which the Transferee may at its expense prepare and that the Transferee,
performing and observing the covenants and conditions on its part to be performed, shall have
quiet possession and enjoyment of the rights, privileges and easement hereby granted. If it shall
appear that at the date hereof the Transferor is not the sole owner of the said lands, this indenture
shall nevertheless bind the Transferor to the full extent of his interest therein and shall also
extend to any after- acquired interest, but all monies payable hereunder shall be paid to the
Transferor only in the proportion that his interest in the said lands bears to the entire interest
therein.
11. The Transferor shall obtain a postponement agreement from all holders of any mortgage
or charge (including a deed of trust to secure bonds or other securities) registered against the
lands in favour of the easement and other rights hereby granted and hereby authorizes the
Transferee to deal direct with the said holders to facilitate the obtaining the required
postponement agreements.
12. For the consideration already referred to, the Transferor hereby quit claims and releases
all of the Transferor's right, title and interest, if any; in and to: (a) the pipes and other equipment
referred to in Clause 3 to the Transferee; and, (b) any steam line and related equipment ( "Steam
Equipment ") located in, on or under the said lands to the Transferee as bare trustee for Ontario
Power Generation Inc. and Bruce Power L.P.
13. The Transferee or its designee may enter on to the said lands with personnel and
equipment to remove the Steam Equipment and the provisions of Clause shall apply to any
such work.
14. The burden of this easement shall run with the said lands and shall extend to and be
binding upon the Transferor, its successors and assigns and enure to the benefit of the
Transferee, its successors and assigns.
[END OF SCHEDULE 2.6.3]
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SCHEDULE 2.11— AIR MONITORING LICENCE
AIR MONITORING STATION LICENCE
THIS AIR MONITORING STATION LICENCE AGREEMENT is made as of the 15th day
of December, 2010 ( "Effective Date ") between THE CORPORATION OF THE
MUNICIPALITY OF KINCARDINE a municipal corporation under the laws of Ontario
( "Municipality ") and BRUCE POWER L.P., a limited partnership formed under the laws of
Ontario ( "Bruce Power ").
RECITALS:
Bruce Power is the operator of the BNPD and uses the Air Monitoring Station in connection with
its operations at the BNPD.
The Parties are entering into this Licence to set out the terms and conditions on which Bruce
Power is permitted to maintain the .Air Monitoring Station at the Sewage Treatment Plant.
NOW THEREFORE, in consideration of the mutual covenants set forth in this Licence and other
good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged),
the Parties agree as follows:
1. Definitions
1.1 In addition to terms defined elsewhere in this Agreement, the following terms as used in
this Agreement have the following respective meanings:
(a) "Air Monitoring Station" means air monitoring and related equipment operated
by Bruce Power in connection with its operations at the BNPD.
(b) `BNPD" means the Bruce Nuclear Power Development located in Municipality
of Kincardine.
(c) "Bruce Power" means Bruce Power L.P., a limited partnership existing under the
laws of Ontario, and includes any successor to Bruce Power L.P. resulting from -
any merger, arrangement or other reorganization of or including Bruce Power L.P.
or any continuance under the laws of another jurisdiction.
(d) "Bruce Power Personnel" has the meaning given that term in section 2.
(e) "Direct Losses" means all damage, losses, liabilities, penalties, fines,
assessments, claims, actions, cost, expenses (including the cost of legal or
professional services, legal cost being on a substantial indemnity basis),
proceedings, demands and charges whether arising under statute, contract or at
common law, except Indirect Losses.
(f) "Indirect Losses" means (i) punitive exemplary or aggravated damages; (ii) loss
of profits, loss of use, loss of production, loss of business or loss of business
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opportunity; or (iii) a claim for consequential loss or for indirect loss of any
nature suffered or allegedly suffered by any person.
(g) "Municipality" means The Corporation of Municipality of Kincardine and any
successor municipal corporation.
(h) "OPG" means Ontario Power Generation Inc. and includes any of its subsidiaries
that own any of the land comprising the BNPD and includes any successor to
Ontario Power Generation Inc. resulting from any merger, arrangement or other
reorganization of or including Ontario Power Generation Inc. and its and its
subsidiaries' successors and assigns.
(i) "Licence" means this air monitoring station licence agreement and all Schedules
attached to this Agreement, in each case as they may be amended, supplemented,
replaced or restated from time to time, and unless otherwise indicated, references
to recitals, Articles, sections, paragraphs, Schedules and Appendices are to
recitals, Articles, sections, paragraphs, Schedules and Appendices in this Licence.
(j) "Licence Fee" means the sum of ten dollars of lawful money of Canada.
(k) "Licensed Space" means that portion of the Sewage Treatment Plant described as
Part 1 on Reference Plan 3R -9246.
(1) "Parties" means the Parties to this Agreement and "Party" means any one of the
Parties.
(a) "Sewage Treatment Plant" means the sewage and wastewater reception and
treatment plant and the associated influent and effluent piping system owned by
the Municipality and located at 1842 Concession #2, Township of Bruce, ON. and
legally described as Part of Lots 11 and 12 Concession "A" Lake Range,
Municipality of Kincardine designated as Parts 5 and 6 Plan 3R -7015.
(m) "Term" has the meaning given that term in section 3.1.
2. Licence to Maintain and Use Air Monitoring Station
Subject to the terms and conditions of this Licence, Municipality hereby grants Bruce Power the -
exclusive right to access, use and occupy the Licensed Space during the Term which shall
include the right in favour of Bruce Power to enter onto the Sewage Treatment Plant with
personnel, equipment and material for the purpose of operating, maintaining, repairing and
replacing all or any part of the Air Monitoring Station during the Licence Term. All rights in
favour of Bruce Power granted by this Licence may be exercised by Bruce Power, its servants,
contractors, and agents and all of their respective employees (collectively, "Bruce Power
Personnel ").
3. Term and Termination
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3.1 The term of this Licence shall commence on the Commencement Date and unless - earlier
terminated shall remain in effect for so long as the BNPD is in operation or being
decommissioned (the "Term ").
3.2 Bruce Power may at any time terminate this Licence upon 30 days prior Notice to
Municipality.
3.3 Municipality may issue a Notice to Bruce Power for any default under the terms of this
Licence. Municipality may terminate this Licence on Notice to Bruce Power, which
Municipality shall be entitled to issue if Bruce Power has failed to remedy any such default of
the terms of this Licence within 30 days after Municipality has provided such Notice to Bruce
Power. Such termination by Municipality shall not prejudice any other rights and remedies that
Municipality may have.
4. Fees and Expenses
4.1 Municipality acknowledges the receipt of the Licence Fee which represents payment in
full for the use of the Licensed Space for the Term.
4.2 Bruce Power shall pay all expenses in connection with the operation of the Air
Monitoring Station including all utilities consumed by it, to the complete exoneration of
Municipality, including electricity. Bruce Power confirms that electricity for the Air Monitoring
Station is separately metered under account number 22195- 63016.
4.3 Bruce Power shall promptly pay all charges incurred by it for any work, materials or
services relating to the Licensed Space and shall forthwith discharge any liens resulting
therefrom. If Bruce Power fails to discharge any liens, Municipality may (but shall be under no
obligation to) pay into court the amount required, or otherwise obtain a discharge of the lien in
the name of Bruce Power and any amount so paid together with all costs incurred in respect of
such discharge, plus an administrative charge of 15 %, shall be payable by Bruce Power to
Municipality forthwith upon demand.
4.4 Municipality shall pay all expenses in connection with the operation of the Sewage
Treatment Plant including all utilities consumed by it to the complete exoneration of Bruce
Power.
5. Premises "as -is" — "where -is"
5.1 The Licensed Space, is provided on an "as is, where is" basis, without any representation,
warranty or condition of any kind whatsoever, express or implied. Municipality specifically
disclaims all implied warranties with respect to the quality, condition or fitness for a particular
purpose of the Licensed Space.
5.2 Upon the commencement of the Term, the Parties agree to complete a joint walk -down of
the Licensed Space to establish a baseline of the condition of the Licensed Space.
6. Responsibility for Employees, Agents, etc.
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6.1 Bruce Power will assume full responsibility for the acts or omissions of Bruce Power
Personnel and all other persons permitted by Bruce Power to enter the Sewage Treatment Plant
or the Licensed Space.
6.2 Bruce Power will take reasonable efforts to ensure that its activities will not interfere in
any way with, disrupt or cause any damage to the Licensed Space or the Sewage Treatment Plant
or operations of Municipality at the Sewage Treatment Plant.
6.3 Municipality will take reasonable effort to ensure that its activities will not unduly
interfere with or disrupt the operations of Bruce Power within the Licensed Space, provided that
activities by Municipality in the ordinary course of business shall not be deemed to unduly
interfere with or disrupt the operations of Bruce Power. Except in the case of emergencies, if
Municipality activities are reasonably expected to cause interference or disruption to Bruce
Power operations, then Municipality shall give reasonable prior Notice of such activities and take
reasonable efforts, in cooperation with Bruce Power, to minimize such interference or disruption.
7. Maintenance of Licensed Space
During the Term Bruce Power shall use and maintain the Licensed Space in accordance with
applicable law and in a reasonable and careful manner as a prudent owner of a similar facility
would do.
8. Restoration
Upon the expiration or earlier termination of this Licence, Bruce Power shall remove all Bruce
Power personal property, equipment and supplies from the Licensed Space and repair all damage
to the Sewage Treatment Plant, including the Licensed Space, occasioned by such removal. The
repair obligations of Bruce Power under this section will survive the expiration or termination of
this Licence for a period of one year.
9. Indemnity
9.1 Except to the extent caused or contributed to by Municipality or those for whom it is
responsible for at law, Bruce Power agrees to release, indemnify and save harmless Municipality
from and against, any and all Direct Losses suffered by Municipality due to damage or injury
(including death) to persons and tangible personal property which are attributable to or
connected with, or arise from:
(a) damage to the tangible personal property of Bruce Power, its directors, officers,
Bruce Power Personnel and customers, guests or invitees of Bruce Power;
(b) damage to the property of Municipality, its directors, officers, employees,
servants, agents, contractors, customers, guests or invitees, including the Sewage
Treatment Space and the Licensed Space, to the extent caused by the acts or
omissions of Bruce Power and those for whom it is responsible for at law;
(c) any injury (including death) to any person to the extent caused by the acts or
omissions of Bruce Power or those for whom it is responsible for at law.
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9.2 Except to the extent caused or contributed to by Bruce Power or those for whom it is
responsible for at law, Municipality agrees to release, indemnify and save harmless Bruce Power
from and against, any and all Direct Losses suffered by the Bruce Power due to damage or injury
(including death) to persons and tangible personal property which are attributable to or
connected with, or arise from:
(a) damage to the tangible personal property of Municipality, its directors, officers,
its servants, contractors, employees, agents and customers, guests or invitees of
Municipality;
(b) damage to the property of Bruce Power, its directors, officers, employees,
servants, agents, contractors, customers, guests or invitees, including the Licensed
Space, to the extent caused by the acts or omissions of Municipality and those for
whom it is responsible for at law;
(c) any injury (including death) to any person to the extent caused by the acts or
omissions of Municipality or those for whom it is responsible for at law.
9.3 The obligations of each Party under this section will survive the expiration or termination
of this Licence for a period of two years.
10. Municipality fulfilling Bruce Power obligation
If any liability or obligation of Bruce Power with respect to the Licensed Space is not paid or
satisfied by Bruce Power within 30 days of Notice of such liability or obligation, Municipality
may (but shall be under no obligation to) pay the liability or do or cause to be done the necessary
work in order to fulfil the obligation on behalf of Bruce Power, and all costs incurred plus an
administrative charge of 15% shall be payable by Bruce Power to Municipality forthwith upon
demand.
11. Assignment
11.1 This Licence is a personal licence granted by Municipality to Bruce Power and rights and
obligations of Bruce Power under this Licence shall not be assigned, in whole or in part, nor
shall Bruce Power sub - licence, encumber or otherwise purport to grant any interest in or rights to
this Licence or the Licensed Space to any Person.
11.2 Notwithstanding section 11.1, Bruce Power may assign this Licence at any time to OPG
or a subsidiary of OPG or any successor or assign of OPG or any of its subsidiaries or any
subsequent operator of the BNPD. If any such successor or assignee shall enter into a written
assumption agreement with Municipality to be bound to this Licence as if an original party to
this Licence, thereafter Bruce Power shall have no further obligations under this Licence except
for matters that arose prior to the effective date of the assignment.
11.3 Municipality shall obtain from any successor or assign of its interest in the Sewage
Treatment Plant such person's written agreement to assume and be bound by this Licence as if
such person was an original party to this Licence.
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12. Bruce Power Property
The Air Monitoring Station and related equipment shall, as between Bruce Power and
Municipality and their respective successors and permitted assigns, remain the property of Bruce
Power regardless of its degree of affixation to the Sewage Treatment Plant.
13. Other Licences
At the request of Bruce Power, Ontario Power Generation Inc. or a subsidiary of Ontario Power
Generation Inc., Municipality will enter into additional licence agreements on essentially the
same terms and conditions as this Licence for additional locations owned by Municipality where
air monitoring equipment that is used in connection with the operation or decommissioning of
the BNPD is located.
14. Notice
Any notice or other communication required or permitted to be given under this Agreement
(collectively, "Notice "), unless specifically provided for to the contrary in this Agreement, shall
be in writing and shall be given by prepaid first class mail, by facsimile or other means of
electronic communication or by hand delivery as provided below. Any Notice, if mailed by
prepaid first class mail at any time other than during a general discontinuance of postal service
due to strike, lockout or otherwise, shall be deemed to have been received on the fourth Business
Day after the post marked date thereof. Any Notice, if sent by facsimile or other means of
electronic communication, shall be deemed to have been received on the Business Day following
the sending, or if delivered by hand, shall be deemed to have been received at the time it is
delivered to the applicable address noted below either to the individual designated below or to an
individual at such address having apparent authority to accept deliveries on behalf of the
addressee. Notice of change of address shall also be governed by this section 14. In the event of a
general discontinuance of postal service due to strike, lock -out or otherwise, Notices or other
communications shall be sent by facsimile or other means of electronic communication and shall
be deemed to have been received in accordance with this section 14. Notices shall be addressed
as follows:
14.1 If to Municipality, to:
(a) Municipality of Kincardine
1475 Concession 5 RR #5
Kincardine Ontario N2Z 2X6
Attention: CAO
Telecopier number: (519) 396 -8288
(b) with copy to:
Municipality of Kincardine
1475 Concession 5 RR #5
Kincardine Ontario N2Z 2X6
Attention: Public Works Department
Telecopier number: (519) 396 -8288
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(c) If to Bruce Power, to:
Bruce Power
P.O. Box 1540, B10
177 Tie Road
Municipality of Kincardine
R.R. #2
Tiverton, Ontario NOG 2T0
Attention: Executive Vice - President and General Counsel
Fax No. (519) 361 -4333
(d) and to:
Bruce Power
P.O. Box 1540, B10
177 Tie Road
Municipality of Kincardine
R.R. #2
Tiverton, Ontario NOG 2T0
Attention: Operations Manager — Property Management
Fax No. (519) 361 -1797
15. General Contract Provisions
15.1 Waiver - Any failure by either Party to exercise any right or enforce any remedy under
this Licence shall be limited to the particular instance, and shall not be deemed to be a waiver of
any other right or remedy or affect the validity of this Licence. The exercise by either Party of
any rights or remedy hereunder shall not be deemed to waive any other rights or remedy that
such Party may have, and such rights or remedies may be exercised and continued concurrently
or separately.
15.2 Successors and Assigns - This Licence shall extend to, be binding upon and enure to the
benefit of Bruce Power and of Municipality and their respective successors and permitted assigns
(including any successor due to amalgamation of any Party).
15.3 Entire Agreement - This Licence constitutes the entire agreement between the Parties
pertaining to the subject matter of this Licence and supersede all prior agreements,
understandings, negotiations and discussions, whether oral or written between the Parties with
respect thereto and sets forth the entire, complete and exclusive understanding between the
Parties relating to the subject matter hereof.
15.4 Applicable Law - This Licence shall for all purposes be construed and interpreted
according to the laws in force in the Province of Ontario.
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15.5 Amendments - No amendment, supplement, modification or waiver or termination of this
Licence and, unless otherwise specified, no consent or approval by any Party, shall be binding
unless executed in writing by the Party to be bound thereby.
15.6 Execution and Delivery - This Licence may be executed by the Parties in counterparts
and may be executed and delivered by facsimile and all such counterparts and facsimiles shall
together constitute one and the same agreement.
15.7 Severability - Each of the provisions contained in this Licence are distinct and severable
and a declaration of invalidity or unenforceability of any such provision or part thereof by a court
of competent jurisdiction shall not affect the validity or enforceability of any other provision of
this Licence. To the extent permitted by applicable law, the Parties waive any provision of
applicable law that renders any provision of this Licence invalid or unenforceable in any respect.
The Parties shall engage in good faith negotiations to replace any provision which is declared
invalid or unenforceable with a valid and enforceable provision, the economic effect of which
comes as close as possible to that of the invalid or unenforceable provision which it replaces.
15.8 Further Assurances - Each of the Parties shall promptly do, make, execute, deliver, or
cause to be done, made, executed or delivered, all such further acts, documents and things as the
other hereto may reasonably require from time to time for the purpose of giving effect to this
Agreement and shall use reasonable efforts and take all such steps as may be reasonably within
its power to implement to their full extent the provisions of this Agreement.
IN WITNESS WHEREOF, the Parties have caused this Licence to be executed by their duly
authorized representatives as of the Effective Date.
THE CORPORATION OF MUNICIPALITY OF
KINCARDINE
By:
Name: Larry Kraemer
Title: Mayor
By:
Name: •
Title: CAO
BRUCE POWER L.P., by its General Partner,
BRUCE POWER INC.
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By:
Name: John Sauger
Title: Executive Vice President, Project
Management and Construction
By:
Name: Brian Armstrong, Q.C.
Title: Executive Vice President and General
Counsel
[END OF SCHEDULE 2.11]
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SCHEDULE 5.8
FORMS OF LIUNA, PWU AND UA AGREEMENTS
The following agreements attached to this Schedule are the agreements contemplated in section
5.8 of the Agreement:
1. Agreement between The Corporation of the Municipality of Kincardine and Bruce Power
L.P. by its General Partner, Bruce Power Inc. and Labourers International Union of North
America, Ontario Provincial District Council, on its own behalf and on behalf of Labourers
International Union of North America, Local 1059.
2. Agreement between The Corporation of the Municipality of Kincardine and Bruce Power
L.P. by its General Partner, Bruce Power Inc. and Power Workers' Union Canadian Union of
Public Employees Local 1000 - C.L.C.
3. Agreement between The Corporation of the Municipality of Kincardine and Bruce Power
L.P. by its General Partner, Bruce Power Inc. and Ontario Pipe Trades Council of the United
Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the
United States and Canada, on its own behalf and on behalf of the United Association of
Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and
Canada, Local 527.
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This agreement ( "Agreement ") is made as of the [ j day of [ ], 2011.1
Between:
THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE (the
"Municipality ")
And: BRUCE POWER L.P., by its General Partner, BRUCE POWER INC. ( "Bruce
Power ")
And: LABOURERS INTERNATIONAL UNION OF NORTH AMERICA, ONTARIO
PROVINCIAL DISTRICT COUNCIL, on its own behalf and on behalf of
LABOURERS' INTERNATIONAL UNION OF NORTH AMERICA, LOCAL 1059
( "collectively, "LIUNA ")
RECITALS:
A. Ontario Power Generation Inc. ( "OPG ") and certain of its subsidiaries (the
"Subsidiaries ") are the owners of the lands and premises that comprise the Bruce
Nuclear Power Development ( "BNPD "), near Tiverton, Ontario;
B. By an amended and restated lease (as amended, the "Lease ") dated May 12, 2001
between, amongst others, OPG, the Subsidiaries and Bruce Power, OPG and the
Subsidiaries did lease or sublease parts of the BNPD (defined in the Lease as the
"Leased Premises ") to Bruce Power;
C. Part of the Leased Premises include the Sewage Treatment Plant and the Water Tower;
D. OPG, Bruce Power and the Municipality have or will enter into agreements (the
"Transfer Agreements ") for the Municipality to acquire and operate thereafter the
Sewage Treatment Plant, the Water Tower and other related assets the "Transferred
Assets ") in order to provide, among other things (i) the sewage treatment services that
Bruce Power currently provides using the Sewage Treatment Plant; and (ii) industrial
water that Bruce Power currently provides to the Bruce Energy Centre;
E. Bruce Power and LIUNA are bound to a collective agreement (the "Collective
Agreement ") which governs the employment of certain employees of Bruce Power
engaged in the construction industry;
F. The Municipality has a non - unionized work force;
G. The Sewage Treatment Plant has been operated by third party service providers from
the commencement of the operations of the Sewage Treatment Plant and through to
date of this Agreement;
H. It is a condition of Closing under the Transfer Agreements that the parties to those
Agreements be satisfied that LIUNA will not claim successor rights or common employer
rights in connection with the transfer of the Transferred Assets to the Municipality as
contemplated by the Transfer Agreements; and
I. LIUNA supports the transfer of the Transferred Assets to the Municipality on the terms
described in this Agreement.
-103 -
T951056\TOR_ LAW\ 7260448\33
NOW THEREFORE Bruce Power, the Municipality and LIUNA hereby acknowledge and
agree with each other as follows:
1, In this Agreement, the following terms have the following meanings:
(a) "Sewage Treatment Plant" . means the sewage treatment plant and related
lands occupied by or used in conjunction with the sewage treatment plant being
Part 5 on Plan 3R -7015; and
(b) "Water Tower" means the water tower and related lands occupied by or used in
conjunction with the water tower being Part 2 on Plan 3R -6087.
2. The Municipality agrees that if it undertakes any construction work which falls within the
scope of the Labourers' ICI Agreement at the Sewage Treatment plant or the Water
Tower, it shall contract such work out to companies in contractual relations with LIUNA.
3. LIUNA agrees that the transfer of the Transferred Assets to the Municipality as
contemplated by the Transfer Agreements does not give rise to a sale of a business in
accordance with the Labour Relations Act (the "Act ") or the Collective Agreement and
that the Municipality and Bruce Power are not a common employer in accordance with
the Act or the Collective Agreement.
(a) LIUNA further agrees that it will not assert or support a position that is contrary to
the stipulations made at paragraph 1 of this Agreement in the context of any legal
proceeding, or otherwise.
(b) Nothing in this Agreement shall effect LIUNA's right to seek to represent
employees of the Municipality, provided that such representation is in no way
derived from the transfer of the Transferred Assets.
(c) Nothing in the Agreement shall be construed as a waiver or abandonment of
LIUNA's ICI bargaining rights for Bruce Power.
4, This Agreement shall be binding upon LIUNA and its successors and shall enure to the
benefit of the parties to the Agreement and their respective successors.
5. The transfer of the Transferred Assets was made in reliance on the representations,
stipulations and commitments made in this Agreement and, accordingly, this Agreement
may be raised as a waiver, defence or estoppel to and claims that are inconsistent with
this Agreement.
6. Bruce Power agrees that, if the Transferred Assets revert to its ownership or control,
construction work coming with the scope of the Collective Agreement, or any other
collective agreement binding upon Bruce Power, which is undertaken in connection with
the Transferred Assets, shall be performed in accordance with the Collective Agreement,
or the other collective agreement, as may be applicable.
7. This Agreement shall be deemed to be the settlement of a proceeding under the Act
and, accordingly, the Municipality, LIUNA and Bruce Power agree that the Ontario
Labour Relations Board shall have the authority and jurisdiction to enforce this
Agreement in accordance with Section 96(7) of the Act. Alternatively, any party may
- 104 -
T951056\TOR_ LAW\ 7260448\33
refer an issue respecting the application, interpretation or enforcement of this Agreement
to Arbitrator Jules Bloch, who the parties agree would be appointed pursuant to this
arbitration agreement made in accordance with the Arbitration Act, 1991.
IN WITNESS HEREOF, LIUNA, Bruce Power and the Municipality, by their duly
authorized representatives, have executed this Agreement and commit to be bound by its terms,
on this day of 2011 at the City / Town of , Ontario.
LABOURERS INTERNATIONAL UNION OF NORTH
AMERICA, ONTARIO PROVINCIAL DISTRICT
COUNCIL, on its own behalf and on behalf of
LABOURERS INTERNATIONAL UNION OF NORTH
AMERICA, LOCAL 1059
Per:
Name: f1 -tib 4 ., tt 4 +
Title: cst : s } a,. J.: - ss y .ti b P d
Per:
Name:
Title:
BRUCE POWER L.P.,
by its Gen raI Partner, BRUCE POWER INC.
BRUCE POWER Per: 5
LAW DIVISION Name: J Sauger
!( Title: Exe ive Vie President, Projects
PProv - I Manage and Const uction
De , o' i
Per A.+
Name: Brian Armstrong, QC
Title: Executive Vice President and General Counsel
CORPORATION OF THE MUNICIPALITY OF
KINCARDINE
Per:
Name:
Title:
Per:
Name:
Title:
- 105 -
T9510561TOR LAW\ 7260448\33
fb4
This agreement (this "Agreement") is made as of the! day of RL.c , 2011
To: THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE (the
"Municipality ")
And To: BRUCE POWER L.P. ( "Bruce Power")
From: POWER WORKERS' UNION CANADIAN UNION OF
PUBLIC EMPLOYEES LOCAL 1000- C.L.0 ( "PWU ")
RECITALS:
A. Ontario Power Generation Inc. ( "OPG ") and certain of its subsidiaries (the
"Subsidiaries ") are the owners of the lands and premises that comprise the Bruce
Nuclear Power Development ("BNPD"), near Tiverton, Ontario;
B. By an amended and restated lease (as amended, the "Lease ") dated May 12, 2001
between, amongst others, OPG, the Subsidiaries and Bruce Power, OPG and the
Subsidiaries did lease or sublease parts of the BNPD (defined in the Lease as the "Leased
Premises ") to Bruce Power;
C. Part of the Leased Premises includes the Sewage Treatment Plant and the Water Tower;
D. OPG, Bruce Power and Municipality have or will enter into agreements (the "Transfer
Agreements ") for the Municipality to acquire and operate thereafter the Sewage
Treatment Plant, the Water Tower and other related assets (the "Transferred Assets ") in
order to provide, among other things (i) the sewage treatment services that Bruce Power
currently provides using the Sewage Treatment Plant; and (ii) industrial water that Bruce
Power currently provides to the Bruce Energy Centre;
E. Bruce Power and PWU have entered in a collective agreement which governs the
employment of certain Bruce Power workers and PWU, through Power Workers' Union
Trust No. 1, is a limited partner of Bruce Power;
F. The Municipality has a non - unionized work force;
G. The Sewage Treatment Plant has been operated by third party service providers from the
commencement of Sewage Treatment Plant operations to the date of this Agreement
H. It is a condition of Closing under the Transfer Agreement that the parties be satisfied that
PWU will not claim successor rights or related employer rights in connection with the
operation of the Transferred Assets by the Municipality; and
1. PWU supports the transfer of the Transferred .Assets to the Municipality and has agreed
to provide this Agreement as set out below,
NOW THEREFORE this Agreement witnesses that in consideration of the sum of ONE
($LOO) DOLLAR now paid to PWU by the addressees hereof and other good and valuable
consideration (the receipt and sufficiency whereof is hereby acknowledged by PWU) PWU
- 106 -
T95 105 6 \TOR_LAW \ 7260448\33
hereby acknowledges and agrees with Bruce Power and the Municipality (collectively, the
"addressees ") as follows:
1. Effective from and after the date of Closing and for so long as no PWU member is
employed at the Transferred Assets by the Municipality, the PWU shall not claim
successor rights under section 69 of the Labour Relations Act (the "Act") or related
employer rights under subsection 1(4) of the Act, in each case, in connection with the
operation of the Transferred Assets by the Municipality.
2. In this Agreement, the following terms as used in this Agreement have the following
meanings:
(a) " Closing" means the date Transferred Assets are transferred to Municipality;
(b) "Sewage Treatment Plant" means the sewage treatment plant and related lands
occupied by or used in conjunction with the sewage treatment plant being Part 5
on Plan 3R -7015; and
(c) "Water Tower" means the water tower and related lands occupied by or used in
conjunction with the water tower being Part 2 on Plan 3R-6087.
3. This Agreement shall be binding upon the PWU and its successors and shall enure to the
benefit of the addressees and their respective successors.
4. This Agreement shall be governed by and construed in accordance with the laws of the
Province of Ontario and the laws of Canada applicable therein.
IN WITNESS WHEREOF the PWU has executed this Agreement under the hands of
their respective proper officers duly authorized in that behalf as of the day and year first above
written.
POWER WORKERS' UNION CANADIAN
UNION OF PUBLIC EMPLOYEES C.L.0
LOCAL 1000
Per:
Name: mor.1 nx e_t••sr00.J
Title: Ts
Per:
Name: $R,t'.D R.+Uvu-F
Title: V t t t�rx.65 �'D�t -- 5 c� n R 2.
- 107 -
T951056\TOR_LAW\ 7260448\33
This agreement ( "Agreement ") is made as of the [ 3 day of [Au6.], 2011.]
Between:
THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE (the
"Municipality ")
And: BRUCE POWER L.P., by its General Partner, BRUCE POWER INC. ( "Bruce
Power ")
And: ONTARIO PIPE TRADES COUNCIL OF THE UNITED ASSOCIATION OF
JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING
INDUSTRY OF THE UNITED STATES AND CANADA, on its own behalf and
on behalf of the UNITED ASSOCIATION OF JOURNEYMEN AND
APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE
UNITED STATES AND CANADA, LOCAL 527 (collectively, the "UA ")
RECITALS:
A. Ontario Power Generation Inc. ( "OPG ") and certain of its subsidiaries (the
"Subsidiaries ") are the owners of the lands and premises that comprise the Bruce
Nuclear Power Development ( "BNPD "), near Tiverton, Ontario;
B. By an amended and restated lease (as amended, the "Lease ") dated May 12, 2001
between, amongst others, OPG, the Subsidiaries and Bruce Power, OPG and the
Subsidiaries did lease or sublease parts of the BNPD (defined in the Lease as the
"Leased Premises ") to Bruce Power;
C. Part of the Leased Premises include the Sewage Treatment Plant and the Water Tower;
D. OPG, Bruce Power and the Municipality have or will enter into agreements (the
"Transfer Agreements ") for the Municipality to acquire and operate thereafter the
Sewage Treatment Plant, the Water Tower and other related assets (the "Transferred
Assets ") in order to provide, among other things (1) the sewage treatment services that
Bruce Power currently provides using the Sewage Treatment Plant; and (ii) industrial
water that Bruce Power currently provides to the Bruce Energy Centre;
E. Bruce Power and the UA are bound to a collective agreement (the "Collective
Agreement ") which governs the employment of certain employees of Bruce Power
engaged in the construction industry;
F. The Municipality has a non- unionized work force;
G. The Sewage Treatment Plant has been operated by third party service providers from
the commencement of the operations of the Sewage Treatment Plant and through to
date of this Agreement;
H. It is a condition of Closing under the Transfer Agreements that the parties to those
Agreements be satisfied that the UA will not claim successor rights or common employer
rights in connection with the transfer of the Transferred Assets to the Municipality as
contemplated by the Transfer Agreements; and
I. The UA supports the transfer of the Transferred Assets to the Municipality on the terms
described in this Agreement.
- 108 -
T951056 \TOR_LAW\ 7260448\33
NOW THEREFORE Bruce Power, the Municipality and the UA hereby acknowledge and
agree with each other as follows:
1. In this Agreement, the following terms have the following meanings:
(a) "Sewage Treatment Plant" means the sewage treatment plant and related
lands occupied by or used in conjunction with the sewage treatment plant being
Part 5 on Plan 3R -7015; and
(b) "Water Tower" means the water tower and related lands occupied by or used in
conjunction with the water tower being Part 2 on Plan 3R -6087.
2. The Municipality agrees that if it undertakes any construction work which falls within the
scope of the UA's ICI Agreement at the Sewage Treatment plant or the Water Tower, it
shall contract such work out to companies in contractual relations with the UA.
3. The UA agrees that the transfer of the Transferred Assets to the Municipality as
contemplated by the Transfer Agreements does not give rise to a sale of a business in
accordance with the Labour Relations Act (the "Act") or the Collective Agreement and
that the Municipality and Bruce Power are not a common employer in accordance with
the Act or the Collective Agreement.
(a) The UA further agrees that it will not assert or support a position that is contrary
to the stipulations made at paragraph 1 of this Agreement in the context of any
legal proceeding, or otherwise.
(b) Nothing in this Agreement shall effect the UA's right to seek to represent
employees of the Municipality, provided that such representation is in no way
derived from the transfer of the Transferred Assets.
(c) Nothing in the Agreement shall be construed as a waiver or abandonment of
UA's ICI bargaining rights for Bruce Power.
4, This Agreement shall be binding upon the UA and its successors and shall enure to the
benefit of the parties to the Agreement and their respective successors.
5. The transfer of the Transferred Assets was made in reliance on the representations,
stipulations and commitments made in this Agreement and, accordingly, this Agreement
may be raised as a waiver, defence or estoppel to and claims that are inconsistent with
this Agreement.
6. Bruce Power agrees that, if the Transferred Assets revert, to its ownership or control,
construction work corning with the scope of the Collective Agreement, or any other
collective agreement binding upon Bruce Power, which is undertaken in connection with
the Transferred Assets, shall be performed in accordance with the Collective Agreement,
or the other collective agreement, as may be applicable.
7. This Agreement shall be deemed to be the settlement of a proceeding under the Act
and, accordingly, the Municipality, the UA and Bruce Power agree that the Ontario
Labour Relations Board shall have the authority and jurisdiction to enforce this
Agreement in accordance with Section 96(7) of the Act. Alternatively any party may
refer an issue respecting the application, interpretation or enforcement of this Agreement
- 109 -
T9510561TORLAW\ 7260448133
to Arbitrator Jules Bloch, who the parties agree would be appointed pursuant to this
arbitration agreement made in accordance with the Arbitration Act, 1991.
IN WITNESS HEREOF, the UA, Bruce Power and the Municipality, by their duly
authorized representatives, have executed this Agreement and commit to be bound by its terms,
on this day of 2011 at the City / Town of , Ontario.
ONTARIO PIPE TRADES COUNCIL OF THE
UNITED ASSOCIATION OF JOURNEYMEN AND
APPRENTICES OF THE PLUMBING AND
PIPEFITTING INDUSTRY OF THE UNITED STATES
AND CANADA, on Its own behalf and on behalf of
the UNITED ASSOCIATION OF JOURNEYMEN AND
APPRENTICES OF THE PLUMBING AND
PIPEFITTING INDUSTRY OF THE UNITED STATES
AND CANADA, LOCAL 527
Per:
Name: 37 - k 4„,i A./ogle/sad
Title: t5peed , re &p, 'fip1/E .e�E'io
Per: ',�.
Name: • 64Z
Title: r� 3 , 1 '- s 1 -..1 cz---
BRUCE POWER L.P.,
by its Gen - ral Partner, BRUCE POWER INC.
Per: '�
Name: Join .auger
t [,/ yy DI VIN Title: Exe u ve Vice President,
1?roie. - Ma gement and Construction
APP -- Per:
Dom .l , lJ ' 1 J l Name: Brian Armstrong, QC
Title: Executive Vice President and General Counsel
CORPORATION OF THE MUNICIPALITY OF
KINCARDINE
Per:
Name:
Title:
Per:
Name:
Title:
[end of Schedule 5.8]
- 110 -
T951056\TOR_ LAW\ 7260448\33
AGREEMENT FOR WATER AND SEWAGE
( "Agreement ")
THIS AGREEMENT made as of the 1" day of January, 2010.
BETWEEN:
BRUCE POWER L.P.
OF THE FIRST PART
and
BI -AX INTERNATIONAL INC.
(the "Customer ")
OF THE SECOND PART
WHEREAS Customer is carrying on or intends to carry on a business at the BEC adjacent to
the Bruce Power Site located in the Municipality of Kincardine, Ontario;
WHEREAS Bruce Power and Ontario Power Generation Inc. ( "OPG ") are parties to a lease
dated May 11, 2001 (as amended from time to time) with respect to certain portions of the
Bruce Site (the "Lease ") including the lease of certain water and sewer assets supplying the
BEC;
WHEREAS Bruce Power, OPG and the Municipality of Kincardine are negotiating for the
potential transfer of certain of the water and sewer assets supplying the BEC to the
Municipality of Kincardine;
WHEREAS Customer wishes to have an agreement with Bruce Power to secure Water, Sewer,
Emergency Water and Meter Services during the Term, and Bruce Power is willing to provide
such services on the terms and conditions herein.
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the recitals
herein and the mutual covenants hereinafter contained the parties hereto agree as follows:
-2-
ARTICLE 1.0
DEFINITIONS AND INTERPRETATION
1.1 Unless the context otherwise requires, the following terms wherever used in this
Agreement shall have the following meanings:
"Applicable Laws" means, collectively, all applicable laws, statutes, ordinances,
decrees, rules, regulations, by -laws, legally enforceable policies, codes or guidelines,
judicial, arbitral, administrative, ministerial, departmental or regulatory, judgments,
orders, decisions, directives, rulings or awards, as amended from time to time; and
conditions of any grant of approval, permission, certification, consent, registration,
authority or licence by any court, statutory body, self - regulatory authority, stock
exchange or other Governmental Authority, including Nuclear Law, as amended from
time to time.
"Basic Sewer Service" means the treatment of the Hydraulic portion of sewage from
Customer conforming to the quality specifications as described in the Schedule C
herein.
"BEC" means the lands and premises comprising Plan 3M -113 registered in the Land
Registry Office for the Land Titles Division of Bruce (No. 3) and commonly referred to
as the Bruce Energy Centre located in the Municipality of Kincardine, Ontario,
adjacent.
"BOD" means the Biochemical (carbonaceous) Oxygen Demand as a standard method
of measuring sewage loading.
"Bruce Power L.P." and "Bruce Power" mean Bruce Power L.P., a limited partnership
existing under the laws of Ontario, and includes any successor to Bruce Power L.P.
resulting from any merger, arrangement or other reorganization of or including
Bruce Power L.P. or any continuance under the laws of another jurisdiction.
"Bruce Power Equipment" means all equipment, facilities and systems included in the
BEC or the Bruce Power Site or between such sites, whether owned or leased, operated
and maintained by, or on behalf of Bruce Power or its agent for the supply of Service to
Customer Equipment.
"Bruce Power Site" means the nuclear power facility located in the Municipality of
Kincardine, Ontario.
"Business Day" means any day other than a Saturday, Sunday or any other day that is a
statutory holiday in Ontario.
"Customer Contact" has the meaning ascribed to that term in Section 10.1.
-3-
"Contracted Quantities" means the rate at which Customer uses Water and Sewer
Service covered by this Agreement, as more fully described in Schedules B & D herein.
"Claims" includes any claim, demand, action, suit, cause of action, assessment or
reassessment, charge, judgment, debt, liability, expense, cost, damage, or loss,
contingent or otherwise, including loss of value, professional fees, including fees of
legal counsel on a solicitor and his or her own client basis, and all costs incurred in
investigating or pursuing any of the foregoing or any proceeding relating to any of the
foregoing.
"Contract Loading" means the maximum BOD Load contemplated by this Agreement,
as described in the Schedule C herein.
"Commencement Date" means January 1, 2010.
"Customer Equipment" means all equipment, facilities and systems owned, operated
and maintained by and required by Customer for receiving and using Service.
"Emergency Water" means untreated water from Lake Huron supplied from
Bruce Power's elevated water tower located at the western junction of Farrell Drive and
Bruce County Road 20.
"Governmental Authority" means any federal, provincial, state, municipal or local
government, parliament or legislature, or any regulatory authority, agency, tribunal,
commission, board or department of any such government, parliament or legislature,
or any court or other law, regulation or rule - making entity, or any arbitrator, each
having or reasonably purporting to have jurisdiction in the relevant circumstances,
including, for greater certainty, any Person acting or reasonably purporting to act
under the authority of any Governmental Authority.
"Water Service" means Water made available to Customer every day of the year in the
amount as set forth in Schedule D herein.
"Interruptible Service" means that "Service" made available to Customer in excess of
the Contracted quantities in accordance with the provisions of schedule B and D.
"Lease" shall have the meaning ascribed thereto in the recitals of this Agreement.
"Meters" means any measuring devices and associated equipment which, as determined
by Bruce Power, are needed to determine the quantity of Water and Sewer Service and
Interruptible Service supplied to Customer.
-4-
"Minor Repairs" means, for each calendar year, the first $5000 worth of repairs and
maintenance required, as determined by Bruce Powers in its sole discretion, to Meters
on Customer's premises.
"Nuclear Law" means all federal, provincial or municipal statutes, regulations, by-
laws, permits, orders, decisions or rules, and any legally enforceable policies or
guidelines of any Governmental Authority, relating specifically to the regulation of
nuclear power plants and nuclear material, including the Nuclear Energy Act (Canada),
the Nuclear Liability Act (Canada), and the Nuclear Safety and Control Act (Canada)
and the respective regulations thereunder and any regulatory guidance documents,
directives, standards and policies issued from time to time by the CNSC or its
predecessor.
"Parties" means Bruce Power and Customer and a "Party" means either of them.
"Person" means any individual, sole proprietorship, partnership, firm, entity,
unincorporated association, unincorporated syndicate, unincorporated organization,
trust, body corporate, and where the context requires any of the foregoing when they
are acting as trustee, executor, administrator or other legal representative.
"Prime Rate" means the rate of interest per annum established and reported by the
Toronto Dominion Bank to the Bank of Canada from time to time as the reference rate
of interest for determination of interest rates that the Toronto Dominion Bank charges
to its customers for Canadian dollar loans made in Canada by such bank.
"Renewal Term" has the meaning ascribed thereto in Section 2.2 of this Agreement.
"Sewer Service" means subject to the provisions of this Agreement, Bruce Power
accepting and treating sewage from Customer conforming to the quality specifications
as described in this Agreement.
"Service" means the Water Service, Sewer Service, Emergency Service and Meter
Service (collectively the "Services ") made available to Customer.
"SP" means the BEC Sewer Plant and the associated supply system, located at 1842
Concession #2, Township of Bruce , ON.
"Term" shall have the meaning ascribed hereof in section 2.1 of this Agreement.
"Terminal Isolating Valves" means the Industrial Water and Sewer Service valves
located at the point of interconnection between the "SP" and Customer Equipment and
which are located approximately at the Customer property line.
"Terminal point" means the point at which the "SP" connects to Customer
Equipment.
-5-
"Utility Service Equipment" has the meaning ascribed hereof in section 3.14 of this
Agreement..
"Water" means untreated water from Lake Huron supplied through the Bruce Power
Site at a pressure of between 275 and 550 Kpa (25 -100 psi (g)) to be used in accordance
as described in Article 3.
1.2 The following schedules are annexed to and form part of this Agreement:
Schedule "A" - Water and Sewer Service
Schedule "B" - Contracted Quantities
Schedule "C" - Sewer Service Rates
Schedule "D" - Water Service
Schedule "E" - Water Rates
Schedule "F "- Technical Conditions of Industrial Water and Sewer
Service
Schedule "G" - Waste Audit Form
1.3 In this Agreement:
(a) words denoting the singular include the plural and vice versa and words
denoting any gender include all genders;
(b) the word "including" shall mean "including, without limitation ";
(c) when calculating the period of time within which or following which any act is
to be done or step taken, the date which is the reference day in calculating such
period shall be excluded;
(d) all dollar amounts are expressed in Canadian dollars, unless otherwise
indicated; and
(e) the division of this Agreement into separate Articles, Sections, Subsections and
Schedule(s), the provision of a table of contents and the insertion of headings is
for convenience of reference only and shall not affect the construction or
interpretation of this Agreement.
-6-
ARTICLE 2.0
COMMENCEMENT DATE, TERM, RENEWAL AND TERMINATION
2.1 This Agreement to provide Services to Customer at the BEC shall be in force for a term
commencing on the Commencement Date and terminating December 31, 2013 (the
"Term "), unless:
(i) Extended by written agreement between the Parties;
(ii) Renewed in accordance with Section 2.2 below; or
(iii) Terminated without liability:
(a) by mutual Agreement in writing;
(b) by either Party, in their sole, subjective and unfettered discretion, without any
requirement to consider the interests of the other Party whatsoever without
cause or for cause upon sixty (60) days written notice;
(c) by Bruce Power immediately upon written notice to Customer where the Lease
has been terminated for any reason or where Bruce Power otherwise ceases to
have the ability to generate electricity using the CANDU Reactors at the Bruce
Power site;
(d) by Bruce Power immediately upon written notice to Customer where the supply
of Services to Customer is interrupted at Customer's request and where such
interruption continues for more than 210 days during the Term; or in
combination with the Renewal Term, if any;
(e) by Bruce Power upon written notice to Customer if Bruce Power, acting
reasonable, determine that, or through a Senior Conference or arbitration it is
determined that, Customer has breached any part of Articles 17 or 22;
(f) automatically if proceedings are commenced against or affecting the Customer
or, or the Customer institutes proceedings or takes any corporate action or
executes any agreement to authorize its participation in or the commencement
of any proceedings:
(i) seeking to adjudicate it a bankrupt or insolvent; or
(ii) seeking liquidation, dissolution, winding up, reorganization,
arrangement, protection, relief or composition of it or any of its property or
debt or making a proposal with respect to it under any law relating to
bankruptcy, insolvency, reorganization or compromise of debts or other similar
laws (including any application for reorganization under the Companies'
Creditors Arrangement Act (Canada) or the Bankruptcy and Insolvency Act
(Canada) or any reorganization, arrangement or compromise of debt under the
laws of any applicable jurisdiction);
-7-
(g) automatically if proceedings are commenced against or affecting the Customer
seeking the appointment of, or any creditor of the Customer or any other
Person privately appoints, a receiver, receiver - manager, trustee, custodian,
liquidator or similar official for the Customer or any part of the Customer's
property, including the Collateral or any part of it;
(h) automatically if Customer commits any act of bankruptcy; has a receiver
appointed on account of insolvency or in respect of any property; or makes a
general assignment for the benefit of creditors; or
(i) otherwise in accordance with the terms of this Agreement.
2.2 There shall be no obligation for either party to renew or extend the Term of this
Agreement. Should the parties, at their sole and unfettered discretion, wish to enter
into a renewal or extension of the Term (the "Renewal Term ") it shall be made
pursuant to a written agreement entered into between the parties on such terms and
conditions as is satisfactory to each party in their sole discretion.
2.3 Effective as of the date of this Agreement the Customer waives any Claims, including
without limitation, all Claims directly or indirectly in connection with the supply or
discontinuance of supply of Services, (whether known as of the date of this Agreement
or subsequently discovered) that it has or may have against either Bruce Power, its
landlord, their respective partners, shareholders, employees, officers, directors
(collectively, the "Bruce Power Released Parties ") or any Person that previously
provided Services to the Customer or any previous owner or occupant of the Customer
Premises ( "Prior Provider ") and the Customer hereby releases and agrees to hold
harmless the Bruce Power Released Parties and any Prior Provider and their respective
successors and permitted assigns from all such Claims. For clarity the Parties
acknowledge that the waiver and release in the immediately preceding sentence is not
intended and shall not apply to Claims that may arise strictly under this Agreement
provided that Bruce Power is notified in writing of such Claims on or before the date
the Customer is notified of an assignment of this Agreement by Bruce Power to a third
party. The Customer acknowledges that Bruce Power holds the benefit of the
foregoing in trust for any Bruce Power Released Parties and any Prior Provider.
-8-
ARTICLE 3.0
SUPPLY OF SERVICES
3.1 Subject to the provisions of this Agreement, Bruce Power shall supply Services to
Customer for the Contracted Quantities set forth in Schedule B and D.
3.2 It is the intention of the Parties that this Agreement provide for a forty -eight (48)
month Agreement for Service, with the possibility of renewal as described herein.
3.3 The execution of this Agreement by Bruce Power in no way obligates Bruce Power, or
represents its intention, to enter into any renewal agreements, or any other agreements
with Customer or any third party
3.4 The Parties may, upon mutual agreement, alter the Contracted Quantities for Water.
3.5 Services shall be supplied to Customer at the Terminal Isolation Valve, located on Lot
2 of the Registered Plan 3m -113, in the Municipality of Kincardine, Ontario, at a
location to be determined by Bruce Power.
3.6 Bruce Power shall endeavor to be ready to supply Services to Customer on the
Commencement Date. However, supply of Services by Bruce Power is subject to
conditions as described in other Articles of this Agreement and the Schedules. The
Customer agrees that Bruce Power shall not be responsible for any losses that may be
suffered by the Customer in the event of a delay in the supply of Services by Bruce
Power regardless of the nature or extent of the delay or otherwise, even if Bruce Power
was advised of the potential for such losses.
3.7 Day -to -day operation of Bruce Power Equipment and Customer Equipment will be in
accordance with the operating responsibilities for supply of Services as set forth in
Schedule F attached hereto and forming part hereof, which Schedule may be amended
from time to time by mutual agreement..
3.8 Prior to Bruce Power opening the Terminal Isolating Valves for the initial supply of
Services, and in any case prior to the Effective Date, Customer will give notice in
writing to Bruce Power that the Customer Equipment has been designed, installed and
tested in accordance with Article 9 herein, and is ready to receive (or continue to
receive, as the case may be) Services. On the earlier of the re- opening of the Terminal
Isolating Valves by Bruce Power and the Effective Date and at any time thereafter
throughout the Term of this Agreement, Customer represents, warrants, covenants and
agrees that Customer Equipment will operate within its design parameters and if any
changes have been made to Customer Equipment, such changes have been designed,
installed and tested in accordance with Article 9 herein.
-9-
3.9 The maintenance by Bruce Power of Water at a pressure between 25 and 100 pounds
per square inch gauge at the Terminal Isolating Valves located at Customer's property
line under the maximum load conditions shall constitute the supply of Industrial Water
Service for the purpose of this Agreement. Bruce Power shall use reasonable diligence
in supplying Water within the aforesaid pressure range. However, Bruce Power shall
not be liable to Customer for variations due to fluctuations in demand at other
locations within the BEC.
3.10 The Water is intended for use as industrial water and for fire fighting purposes.
Bruce Power with input from Customers at BEC, recognizing the circumstances at the
time shall establish a priority system for supply of Emergency Water to Customer and
other BEC customers in the event the Water supply is interrupted by a multiple pump
failure at the Bruce Power Site pumphouse or for any other reason. Priorities shall be
based on the need for essential services primarily fire protection.
3.11 Bruce Power shall measure or take whatever other action is required to measure or
determine the quantity of the Services supplied to Customer.
3.12 Bruce Power has the right at all times to suspend partially or fully the Interruptible
Service that is made available to Customer in accordance with the provisions of this
Agreement.
3.13 The supply of Services to Bruce Power facilities at the Bruce Power Site shall at all
times have precedence over the supply of Services to the Customer. For the purpose of
this Article Bruce Power shall have the right at all times, for reasons of safety or
otherwise, to reduce or interrupt the supply of Services to the Customer rather than
reducing or interrupting the supply of Services to the Bruce Power Site.
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3.14 At Bruce Power's request the Customer agrees to grant easements and related rights to
the Municipality of Kincardine, Bruce Power or such other Persons who may from time
to time provide industrial water, sewage (storm and /or sanitary) service, electricity or
steam services to the Customer Premises and any other lands and premises within the
BEC whether such easements are to accommodate existing services and their related
wires, pipes and related equipment and appliances, including Bruce Power Equipment
(collectively, "Utility Service Equipment ") , including, without limitation, rights for the
installation, maintenance, repair, replacement and removal of such Utility Service
Equipment, or to accommodate the new or relocated easements for such services and
their related Utility Service Equipment. The easements shall be granted for nominal
consideration and incorporate the usual terms and conditions commonly required by a
supplier of the services in question. The Customer hereby quit claims and releases any
rights that it may have, including by operation of law, in any Utility Service Equipment
and agrees to confirm this quit claim and release in any grant of easement
contemplated in this Section 3.14. The Customer shall also use reasonable commercial
efforts to obtain postponements in favour of the easements from all Persons holding an
encumbrance on the Customer Premises. The foregoing are conditional upon
compliance with the applicable provisions of the Planning Act (Ontario) and any
required consent thereunder shall be obtained by Bruce Power and the Customer shall
cooperate in connection with the obtaining of any required consent.
3.15 The provisions of paragraph 3.14 shall survive beyond the expiration or earlier
termination of the Term for the maximum period permitted by Applicable Laws.
-11-
ARTICLE 4.0
INDUSTRIAL WATER AND SEWER RATES
4.1 The rates for Service shall be as set forth in Schedule C and E attached hereto.
4.2 Bruce Power will invoice Customer for the quantity of Services which has been
measured or determined as being used under this Agreement during any calendar
month on the fifteenth day of the month following or as soon thereafter as practicable.
Customer shall pay such invoice within 30 days after the date of the invoice.
4.3 Should the Customer fail to make payments as they become due under this Agreement,
interest at an annual rate equal to two (2 %) percent above the Prime Rate on such
unpaid amounts shall also become due and payable until payment. Such interest shall
be calculated daily from the date on which any payment becomes due and compounded
annually. If any invoice remains unpaid for thirty (30) days after the date of the invoice,
Bruce Power may, in addition to all other remedies available to it, and after giving to
Customer at least 10 days notice in writing of Bruce Power's intention to do so,
discontinue the supply of Service and may refuse to resume supply so long as any past
due invoice, plus the aforesaid interest, remains unpaid.
4.4 Bruce Power, in its sole discretion, may require Customer to furnish, prior to the
Commencement Date or prior to a resumption of the supply of Service following a
discontinuance of the supply of Service pursuant to Article 11, security, in an amount
determined by Bruce Power, to guarantee payment of an estimated three month's
average billing for Services. The security to be furnished shall be in form acceptable to
Bruce Power in its sole discretion and, as determined at that time, may be in the form
of a letter of credit from a chartered bank, a surety bond issued by a surety company
satisfactory to Bruce Power, cash deposit, negotiable bonds or such other security
acceptable to Bruce Power.
4.5 Interruption of the supply of Services by Bruce Power in accordance with this
Agreement shall not exempt Customer from the continuing obligation to pay for
Services supplied prior, or subsequent, to the interruption at the times that such
payment is due hereunder.
42
ARTICLE 5.0
AVAILABILITY TO CUSTOMERS
5.1 Service will be available to any customer located at the BEC on a first come, first served
basis.
5.2 The capacity of the Service will be determined by the capacity of the existing
infrastructure.
5.3 It is recognized that Bruce Power has no obligation to expand the capacity of the
Service or infrastructure under this Agreement.
43
ARTICLE 6.0
INTERRUPTION OF SERVICE
6.1 Without limitation to Bruce Power's other rights under this Agreement, Bruce Power
shall have the right to interrupt the supply of Service at any time to such extent as, in
the sole and subjective opinion of Bruce Power, may be necessary, for:
a. safeguarding life, personal injury, public health, environment or property;
and /or
b. ensuring the safety, stability and reliability of Bruce Power or it agents
Equipment.
Customer recognizes Service may be interrupted by Bruce Power. Wherever possible,
Bruce Power will provide Customer with as much advance notice as possible of
interruption of Service. Bruce Power shall use commercially reasonable efforts to limit
the frequency and duration of such interruptions so far as it is within its power to do
so. For the purpose of this Article notice shall be given by telephone to an employee of
Customer who is in a supervisory capacity at that time. If such persons are unavailable
such notice shall be given by telephone to any other employee of Customer.
6.2 If at any time, in the judgment of Bruce Power or its agents, the quality of sewage
discharged from Customer's plant may not be in compliance with Applicable Laws, this
Agreement (including without limitation Schedule Al and A2) or reasonable
requirements of Bruce Power so as to cause Bruce Power operating difficulties or make
Bruce Power liable to prosecution, Bruce Power shall have the right to interrupt the
Sewer Service.
6.3 Bruce Power will not be liable for any loss to Customer resulting from Bruce Power
exercising its right of interruption of the Service in accordance with this Agreement,
even if Bruce Power was advised of the potential for such loss.
6.4 Without limitation to Bruce Power's other rights under this Agreement, Bruce Power
shall have the right to interrupt the Service at any time to such extent as is necessary in
the opinion of Bruce Power for the purpose of construction, maintenance, operation,
repair, replacement or extension of Bruce Power Equipment and connection of new
Customers. However, such interruptions, if possible, shall be arranged to occur during
times that are mutually agreeable to both Bruce Power and Customer. If a mutually
agreeable time is not attainable, Bruce Power shall give fifteen (15) days prior notice of
its intention to interrupt the Service to Customer. Customer's process should therefore
be designed to accept occasional interruptions. Customer will be given a minimum of
seven (7) Business Days prior warning of planned shutdowns.
14
6.5 Bruce Power shall use commercially reasonable efforts to limit the frequency and
duration of such interruptions so far as it is within its power to do so.
Notwithstanding the forgoing, if an emergency situation develops relating to
Bruce Power's Equipment, then the provisos of Article 6.1 apply.
6.6 Without limiting any of Bruce Power's rights under Article 11.0, if Service is
interrupted as a result of Customer being in default, Service will not be resumed until
Customer, in the judgment of Bruce Power or its agents, has cured the default or taken
effective measures to prevent a recurrence of the default.
6.7 Bruce Power will not be liable for any punitive, exemplary, indirect, incidental or
consequential damages, including lost revenue or profit, cost of capital, loss of business
reputation, loss of use of any property or loss of opportunity (whether arising out of
contract, tort, by way of indemnity or based on any other theory of law) experienced
by Customer resulting from Bruce Power exercising its right of interruption of the
supply of Services in accordance with this Agreement, even if Bruce Power was advised
of the potential for such loss.
-Is
ARTICLE 7.0
METERING
7.1 Customer, at the written request of Bruce Power acting reasonably, shall purchase and
install new Meter(s) and shall bear all costs related to such. New Meters must be
approved by Bruce Power before installation. With respect to maintenance and repairs
to the Meters, subject to Applicable Laws:
a) Subject to subsection 7.1(c) of this Article, Customer, at the written request of
Bruce Power in its sole discretion, shall perform (and bear the cost of) any repairs
to Meters located on Customer's premises (failure to do so shall be considered a
default under this Agreement);
b) Calibration of the Meters shall be conducted by, and at the expense of, Bruce
Power;
c) Bruce Power shall be responsible for Minor Repairs.
If, in Bruce Power's judgment, there are special conditions which must be met in
Customer's facilities to allow for the installation and /or operation of Meters, Customer
shall, at its own expense, provide, install and maintain, in accordance with plans and
specifications approved by Bruce Power, the special equipment required in
Bruce Power's judgment for the installation and operation of the Meters.
7.2 If requested by Bruce Power, Customer shall provide free of charge:
a. a safe and reasonable location on Customer's premises including a manhole for
Minor Repairs;
b. a suitable enclosure for the Meters;
c. a satisfactory power supply;
d. an inline effluent wier if required;
e. all such reasonable conveniences as are required for Bruce Power to install a
water meter prior to the first branch or as otherwise determined by Bruce Power
and for Bruce Power to install similar Meters in Customer's Sewer Service
systems;
f. a secure 110v or 220v power supply to the location(s) where the Meters are
installed;
g. in its Service pipe design, a suitable length of straight pipe before and after the
Service Meters - the actual lengths to be determined by pipe diameter and type
of flow element employed, the design of this installation is subject to
Bruce Power's approval; and
h. if requested, 4 or 8 pairs of #20 or #22 AWG cable from the location of the
Meters to Customer's main telephone switchboard, these being for the purpose
of transmitting data to Bruce Power.
-I6
7.3 If for any period any Meter or any part of the measuring process thereof, is not in
service, the amount of Service supplied during such period shall be determined by
Bruce Power using the best information available.
7.4 Any meter by -pass lines will be under Bruce Power control and normally tagged in the
closed position.
7.5 If Customer, acting reasonably, suspects an erroneous reading from any applicable
Meter, Customer may request that, and Bruce Power shall, arrange to have the Meters
recalibrated within ten (10) Business Days of Customer's request. If the Meters are
found to be out of calibration by greater than 5% ( + / -), Bruce Power shall be
responsible for costs related to the recalibration and will adjust disputed invoices
accordingly. If the Meters are found to be calibrated with +1- 5%, Customer shall
immediately reimburse Bruce Power for any costs it incurred with the recalibration,
and pay any outstanding invoices, plus applicable interest.
4 7.
ARTICLE 8.0
CUSTOMER'S PREMISES
8.1 Bruce Power shall have a right of access to the lands and the premises of Customer at
any reasonable time during the Term and Renewal Term(if any) for any one or more of
the following purposes:
a. inspection, operation, testing, adjustment, repairing, alteration, reconstruction
and /or removal of Bruce Power Equipment, the Terminal Isolation Valves,
Meters and associated equipment, and /or Customer valves associated with the
Meters;
b. inspection of Customer Equipment for compatibility with Bruce Power
Equipment; and /or
c. meter reading.
8.2 Where practical to do so, Bruce Power will provide advance verbal or written notice to
the Customer prior to exercising its right of access to the Customer premises provided
that Bruce Power and its employees, officers, and contractors shall be entitled to enter
the Customer premises without first obtaining any additional permission to do so in
and if at any time access is refused or delayed and as a result Bruce Power is prevented
from fulfilling its obligations with respect to the supply of Service to any person or
persons other than the Customer, then the Customer shall indemnify Bruce Power
against all claims and demands arising in any manner therefrom. Bruce Power shall
not be required to provide advance notice of access if in Bruce Power's opinion based
on information known to it at the time and believed to be true there is an actual or
apprehended emergency or dangerous situation on the Customer premises concerning
Bruce Power Equipment or Customer Equipment or if the Customer is in default under
this Agreement at the time access is exercised.
8.3 Customer hereby grants to Bruce Power the right at all times during the continuance
of this Agreement to use, free of charge or rent, as much of Customer's lands as
Bruce Power may reasonably deem necessary for the construction, maintenance,
operation, repair, replacement or extension of Bruce Power Equipment or new
connection of Service to Customer and any other customer in the BEC. The
location of the lands required for such purpose is to be mutually satisfactory to
Bruce Power and Customer, and Customer will provide at no cost to Bruce Power
appropriate easements or agreements satisfactory to Bruce Power in registerable form.
8.4 Customer agrees to keep its structures, machinery, plant and works at such distance
from Bruce Power Equipment as will permit the safe and efficient maintenance and
operation of Bruce Power Equipment. If Customer requires relocation of any
18
Bruce Power Equipment, Customer shall furnish on its lands another location
satisfactory to Bruce Power. Bruce Power will perform the work of relocation and
Customer will pay the cost thereof to the extent that Bruce Power Equipment is used
for the supply of Service.
8.5 After termination of this Agreement, Bruce Power shall have the right to have access to
the Customer's premises for the purpose of removing any Bruce Power Equipment on
such premises.
8.6 This Article 8 shall survive termination of this Agreement.
49
ARTICLE 9.0
CUSTOMER'S EQUIPMENT
9.1 Customer Equipment shall at all times conform to all applicable codes, standards and
regulations and shall be designed, installed, operated and maintained in such a manner
so as to be compatible with Bruce Power Equipment. For this purpose Customer will
provide Bruce Power with information, including all necessary approvals, relating to
Customer's Equipment as Bruce Power may reasonably request.
9.2 Until Bruce Power is satisfied with the compatibility of Customer Equipment to
Bruce Power Equipment, Bruce Power shall not be bound to the delivery of Service
pursuant to this Agreement, or, if delivery of Service has commenced, to continue the
same.
9.3 Customer agrees to provide and install Customer Equipment according to technical
conditions as may be required for safe and economical delivery of Service pursuant to
this Agreement. Currently applicable technical conditions are set forth in Schedule F
which may be amended as considered necessary by Bruce Power in which event a
reasonable period of notice shall be provided to Customer for compliance with any
revised technical conditions.
9.4 Bruce Power shall not be liable for any loss, damage or injury to Customer due in any
way to any failure on the part of Customer to meet the technical conditions as set forth
in this Article.
20
ARTICLE 10.0
CUSTOMER'S OPERATION
10.1 If at any time Customer fails to operate its facilities as required by this Agreement,
Bruce Power may give notice by telephone of such failure to the Customer contact
person mentioned in s.16(i) (the "Customer Contact ") and Customer shall immediately
remedy the said failure. In case of continued failure after the notice, Bruce Power may
discontinue supply of Service or of any part thereof pursuant to Article 11.
10.2 Customer shall operate the Customer Equipment in such a manner so as not to cause
disturbances or fluctuations on the Service systems through which Bruce Power is
supplying Services to other customers. Customer shall take such remedial measures at
its own expense by way of installing suitable apparatus or otherwise as may be
necessary to reduce any disturbance or fluctuations on the Service supply system.
21-
ARTICLE 11.0
CUSTOMER IN DEFAULT
11.1 If Customer fails to perform any obligation under this Agreement, Bruce Power may
give written notice to Customer that unless the obligation is completely fulfilled within
a reasonable period of time (as determined by Bruce Power), Bruce Power may
discontinue the supply of Service.
11.2 If Customer continues in default in respect of the obligation beyond the period
specified in the notice contemplated in Section 11.1 above, Bruce Power may
discontinue the supply of Service, and may refuse to resume supply of Service until
Customer has fulfilled its obligation.
11.3 The right to discontinue the supply of Service in this Section is in addition to and not in
limitation of any other right provided elsewhere in this Agreement to discontinue the
supply of Service for failure of Customer to perform a particular obligation.
11.4 If the Customer Contact is not immediately available to receive any such notice
Bruce Power shall endeavor to provide such notice to an employee of Customer who is
in a supervisory capacity at that time. If such persons are unavailable, such notice shall
be given to any other employee of Customer
11.5 Bruce Power's discontinuance of Services as permitted under this Agreement shall not
be construed as a breach of contract by Bruce Power, nor shall such discontinuance
relieve Customer from its obligations to pay for Service in accordance with the
provisions of this Agreement, and such provisions shall continue in force until
termination of this Agreement, unless Bruce Power otherwise agrees in writing.
11.6 If Bruce Power, pursuant to Section 11.2, has discontinued supply of Service,
Bruce Power may at its option give written notice to Customer that unless the
obligation is completely fulfilled within a specified period (not less than ten (10) days),
this Agreement will be deemed terminated. Such termination shall be without waiver
of any amounts which may be due or of any rights including the right to damages for
such breach which may have accrued up to and including the date of such termination.
ARTICLE 12.0
LIABILITY
12.1 Customer shall assume all risk, liability or obligation in respect to:
(a) all damage to property of Bruce Power on or off of Customer's lands and
premises; and
(b) all loss, damage or injury to
(i) property of Customer or property of any third person on or off of
Customer's lands and premises, or
(ii) any person or persons (including loss of life) on or off of Customer's lands
and premises,
which loss, damage or injury shall have been due to Service supplied by Bruce Power to
Customer or due to the said property of Bruce Power to the extent used to supply
Service to Customer or due to any reason directly or indirectly related to this
Agreement, except to the degree that such loss, damage or injury shall have been due to
the gross negligence or wilful act of Bruce Power, its servants or agents.
Without limiting the generality of the foregoing, Customer bears the sole responsibility
for the cost of any damage to Customer Equipment that may occur due to the
operation of Bruce Power Equipment.
Customer also bears the sole responsibility for any damage to equipment of a third
party or Bruce Power or its servants or agents, that may occur due to the operation of
Customer Equipment, except to the degree that such damage shall have been due to the
gross negligence or wilful act of Bruce Power, its servants or agents.
12.2 Customer shall assume all risk, liability or obligation in respect to all actions, causes of
action, suits, proceedings, Claims, demands, losses, damages, penalties, fines, costs,
expenses, obligations and liabilities arising out of a discharge of any contaminant into
the natural environment on Customer's lands and premises or elsewhere and any fines
or orders of any kind that may be levied or made pursuant to the Environmental
Protection Act (Ontario), the Ontario Water Resources Act, or the Dangerous Goods
Transportation Act (Ontario), or other similar legislation whether federal or provincial
or municipal except to the degree that such discharge shall have been due to the gross
negligence or wilful act of Bruce Power, its servants or agents.
12.3 The Parties acknowledge that the purpose of this Agreement is to provide for a forty —
eight(48) month supply of Service by Bruce Power to Customer at the BEC and to
establish the price at which this Service will be supplied. The parties also acknowledge
that the supply of Service may be interrupted from time to time as permitted and
23
contemplated by this Agreement or as a result of temporary changes in the system. It is
agreed that Bruce Power shall not be liable, in such circumstances, to Customer for any
damages resulting therefrom.
12.4 Customer shall indemnify Bruce Power and save it harmless from all risk, liability, and
obligation assumed by Customer under this Article 12, and all Claims and demands in
connection therewith, save and except such loss, damage or injury due to the gross
negligence or wilful act of Bruce Power, its servants or agents.
12.5 Bruce Power shall indemnify Customer and save it harmless from all risk, liability, and
obligation in connection with the use of Customer's lands used for delivery of Service
to other customers of the BEC as per article 8.3 herewith.
12.6 All Bruce Power Equipment, Terminal Isolation Valves and Meters on or in Customer's
lands and premises shall be there at the risk of Customer. Subject to ss. 7.1, if any of
the Bruce Power Equipment, Terminal Isolation Valves or Meters, is destroyed or
damaged other than by ordinary wear and tear or by Bruce Power's actions, Customer
shall pay to Bruce Power the value of such equipment or, at Bruce Power's option, the
cost of repairing or replacing same.
12.7 Bruce Power shall not be liable for any loss, damage or injury to Customer which, in
Bruce Power's opinion, is due to Customer not taking adequate precautions against
contamination of Customer's product or any other failure on the part of Customer to
meet the requirements as set forth in this Agreement.
12.8 Bruce Power additionally, shall not be liable to Customer for any damages arising as a
result of any failure to supply Service in the event of default by Customer as set forth in
Article 11.0.
12.9 Notwithstanding any other provision in this Agreement, in no circumstances
whatsoever shall Bruce Power's liability to Customer exceed $5000.00. regardless of
whether Customer's claim is based in contract, indemnity, tort /extra - contractual
liability (including negligence, strict liability or otherwise).
24
12.10 Nuclear Liability
(a) Notwithstanding any other provision in this Agreement, Bruce Power shall
indemnify, defend and hold harmless Customer from and against any and all injury to
Customer or damage to the property of Customer resulting from a nuclear incident
with respect to the Bruce Nuclear Generating Station, save and except for:
(i) injury or damage suffered by Customer from a nuclear incident which occurred
wholly or partly as a result of Customer's unlawful act or omission with intent
to cause injury or damage; and
(ii) damage to transportation equipment or storage facilities arising from a nuclear
incident occurring during the carriage or incidental storage of nuclear material
by Customer, unless such damage is covered by Bruce Power's nuclear liability
insurance.
(b) Customer shall not and shall require its representatives, including any of its
subcontractors, consultants, agents or advisers, not to hold any supplier of Bruce
Power liable for injury to Customer or such persons, or damage to the property of
Customer or such persons, resulting from a nuclear incident with respect to the Bruce
Nuclear Generating Station.
(c) Notwithstanding any other provision of this Agreement other than subsection (a) (i)
and (ii) above, Bruce Power shall defend, hold harmless and indemnify Customer
against liability to third parties resulting from a nuclear incident with respect to the
Bruce Nuclear Generating Station.
(d) For the purposes of this section the terms "damage ", "nuclear incident" and
"injury" shall have the meanings ascribed thereto in the Nuclear Liability Act (Canada)
(the "Act ") and the term "supplier" means any person (regardless of tier in the case of
contractors or subcontractors) that has furnished or is furnishing directly or indirectly,
equipment, articles, information, materials or services for use at the Bruce Nuclear
Generating Station.
25
ARTICLE 13.0
WAIVER
13.1 Any failure by either Bruce Power or Customer to exercise any right or enforce any
remedy under this Agreement shall be limited to the particular instance, and shall not
be deemed to be a waiver of any other right or remedy or affect the validity of this
Agreement.
13.2 The exercise by either Party of any rights or remedy hereunder shall not be deemed to
waive any other rights or remedy that such Party may have, and such rights or remedies
may be exercised and continued concurrently or separately.
26
ARTICLE 14.0
FORCE MAJEURE
14.1 Except that payments required to be made by Customer pursuant to this Agreement are
not excused by any circumstance, happening or event, and without limiting Bruce
Power's rights under Article 2.0, neither Party shall be held responsible or liable, either
directly or indirectly, or be deemed in default or in breach of this Agreement for any
loss, damage, detention, delay, failure or inability to meet any of its commitments
hereunder caused by or arising from any cause which is unavoidable or beyond its
reasonable control, including without limitation war, hostilities, invasion, insurrection,
riot, the order of, the action or the failure to act by, any competent civil government
(including the Government of Canada, or any provincial or local government thereof
or any statutory tribunal of competent jurisdiction), explosion, fire, strikes, lockouts or
labour disputes and the time or times provided for hereunder for performance by both
parties shall be extended for a period equivalent to the time any such cause was
preventing performance together with any further extension of time as the parties may
mutually agree upon.
14.2 If either Party is unable to perform its obligations hereunder due to a force majeure
cause, it shall so notify the other Party in writing, stating the cause and shall use its best
endeavor to remove such cause provided, however, that neither Party shall be obligated
to resolve or terminate any disagreement with third parties including labour disputes
except under conditions acceptable to it or pursuant to the final decision of any
arbitral, judicial or statutory agency having jurisdiction to finally resolve the
disagreement.
2�
ARTICLE 15.0
APPROVALS
15.1 The parties hereto acknowledge and agree that each Party will obtain all necessary
federal, provincial, municipal or other governmental or administrative approvals for all
aspects of its own works.
28
ARTICLE 16.0
CONTACTS
16.1 Any formal notice required by this Agreement shall be deemed properly given if either
faxed with confirming receipt from recipient, sent by registered mail, or delivered as
follows:
(i) on behalf of Customer to:
BI -AX International Inc.
P.O. Box 233
Lot 2 RP 3M -113
R.R. #3 Tiverton, ON
Attention: President
Fax No.: (519) 368 -7017
(ii) on behalf of Bruce Power, to:
Bruce Power
P.O. Box 1540, B10
177 Tie Road
Municipality of Kincardine
R.R. #2
Tiverton, Ontario NOG 2T0
Attention: General Counsel
Fax No. (519) 361 -4333
And to:
Attention: Operations Manager — Property Management
Fax No. (519) 361 -1797
Either Party may change its representative specified above by giving written notice
thereof to the other Party.
16.2 Any written correspondence regarding day -to -day activities between Bruce Power and
Customer shall be deemed properly given if either fax, mailed or delivered as follows:
29
(i) on behalf of Customer, to:
BI -AX International Inc.
P.O. Box 233
Lot 2 RP 3M -113
R.R. #3 Tiverton, ON
Attention: President
Fax No.: (519) 368 -7017
(ii) on behalf of Bruce Power, to:
Bruce Power
P.O. Box 1540, B10
177 Tie Road
Municipality of Kincardine
R.R. #2 Tiverton, Ontario
NOG 2T0
Attention: Gary Lee, Operations Section Manager
Fax No.: (519) 361 -5777
16.3 Any verbal correspondence regarding the day -to -day activities between Bruce Power
and Customer shall be:
• 1st — Gary Lee, Chief Engineer, Production /Supervisor (telephone number 361 -2673
ext. 5558), or alternatively,
• 2nd — Duty Shift, Boilers and Systems Supervisor (telephone number 361 -2673
Ext. 4551) .
• Carl Gateman (BI -AX) Maintenance Manager telephone number 519- 368 -7015
16.4 Any day -to -day verbal communication regarding the day -to -day activities will be
between Bruce Power and Customer. The sewage Operating Authority (the
operational agent for Bruce Power) will be Todd Davis, Cluster Manager, Owen Sound
Hub, Ontario Clean Water Agency, PO Box 760, Anglesia St. N, Southhampton, ON.,
NOH 2L0 (Telephone No.: 519- 797 -2561 ext. 224; Fax No.: 519- 797 -3080; E -mail:
tdavis @ocwa.com).
as
ARTICLE 17.0
PUBLIC NOTICES
17.1 The Customer shall jointly plan and co- ordinate with Bruce Power any public notices,
press releases, and any other publicity of Customer concerning this Agreement and
Customer shall not act in this regard without the prior approval of Bruce Power, unless
such disclosure is required to meet timely disclosure obligations of any Party under
Applicable Laws and stock exchange rules in circumstances where prior consultation
with Bruce Power is not practicable and a copy of such disclosure is provided to Bruce
Power at such time as it is made to the regulatory authority. Bruce Power shall have
the right to make such press releases, without consultation or approval of the
Customer, which Bruce Power deems in its sole discretion as are required by it. This
provision shall survive expiry of the Term for a period of two years.
31-
ARTICLE 18.0
SUCCESSORS AND ASSIGNS
18.1 This Agreement shall extend to, be binding upon and enure to the benefit of
Bruce Power and of Customer and their respective successors and permitted assigns
(including any successor by reason of amalgamation of any Party).
18.2 Customer may not assign this Agreement or any rights or obligations under this
Agreement without the prior written consent of Bruce Power, which consent shall be in
the sole and unfettered discretion of Bruce Power and may be unreasonably withheld.
18.3 For greater certainty, Bruce Power may assign its rights or obligations under this
Agreement to any third party including the Municipality of Kincardine at any time
immediately upon written notice to the Customer.
ARTICLE 19.0
ENTIRE AGREEMENT
19.1 This Agreement, the Schedules attached hereto, and the agreements and other
documents required to be delivered pursuant to this Agreement, if any, constitute the
entire agreement between the Bruce Power and Customer and sets out all the
covenants, promises, warranties, representations, conditions, understandings and
agreements between Bruce Power and Customer pertaining to the subject matter of
this Agreement and supersede all prior agreements, understandings, negotiations
and discussions, whether oral or written between the Parties with respect thereto and
sets forth the entire, complete and exclusive understanding between the Parties
relating to the subject matter hereof. There are no covenants, promises, warranties,
representations, conditions, understandings or other agreements, oral or written,
express, implied or collateral between the Parties in connection with the subject matter
of this Agreement except as specifically set forth in this Agreement and any document
required to be delivered pursuant to this Agreement. Neither this Agreement nor any
provision hereof is intended to confer upon any person other than the Parties any
benefits or any rights or remedies hereunder. The execution of this Agreement by the
Parties has not been induced by, nor do either of the Parties rely upon or regard as
material, any representations, writings covenants, promises, warranties, conditions,
understandings and agreements whatsoever not incorporated herein and made part
hereof.
2.2
ARTICLE 20.0
APPLICABLE LAW
20.1 This Agreement shall for all purposes be construed and interpreted according to the
laws in force in the Province of Ontario.
ARTICLE 21.0
AMENDMENTS
21.1 No amendment, supplement, modification or waiver or termination of this Agreement
and, unless otherwise specified, no consent or approval by any Party, shall be binding
unless executed in writing by the Party to be bound thereby.
ARTICLE 22.0
CONFIDENTIALITY
22.1
(a) Except as authorized in writing by the owner, or as contemplated herein, each Party
shall keep confidential all proprietary and confidential information of the other made
available to it as a result of this Agreement, whether or not marked as such, including,
without limitation, all unpublished business and technical information, papers, or
records, however produced. These obligations of confidentiality shall survive
completion and /or termination of this Agreement.
(b) Notwithstanding Section 22.1(a), each Party to disclose confidential information of the
other party where: (a) it discloses such to a court or arbitrator which has jurisdiction in
a particular legal claim, dispute or order, (b) it discloses such to business entities that
are parent companies or subsidiaries of it or any such parent company or an affiliated
company of any of the foregoing ( "Group "); (c) it discloses such to any of its directors,
officers, employees, agents and professional advisors of it or of its Group or of a third
party who have a commercially legitimate need -to -know and agree in writing to
maintain confidentiality; (d) it received that information independently; or (e) the
information becomes public through no breach of this Agreement.
ARTICLE 23
EXECUTION AND DELIVERY
23.1 This Agreement may be executed by the Parties in counterparts and may be executed
and delivered by facsimile and all such counterparts and facsimiles shall together
constitute one and the same agreement.
S3
ARTICLE 24
SEVERABILITY
24.1 Each of the provisions contained in this Agreement are distinct and severable and a
declaration of invalidity or unenforceability of any such provision or part thereof by a
court of competent jurisdiction shall not affect the validity or enforceability of any
other provision of this Agreement. To the extent permitted by Applicable Law, the
Parties waive any provision of Applicable Law that renders any provision of this
Agreement invalid or unenforceable in any respect. The Parties shall engage in good
faith negotiations to replace any provision which is declared invalid or unenforceable
with a valid and enforceable provision, the economic effect of which comes as close as
possible to that of the invalid or unenforceable provision which it replaces.
ARTICLE 25
FURTHER ASSURANCES
25.1 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.
ARTICLE 26
DISPUTE RESOLUTION
26.1 Negotiation. If any dispute between the Parties arises under or in connection with this
Agreement that the contact persons in subsection 16.2 cannot resolve, each of the
contact persons shall promptly advise its senior management, in writing, of such
dispute. Within seven Business Days following delivery of such notice, a senior
manager from each Party shall meet, either in person or by telephone (the "Senior
Conference "), to attempt to resolve the dispute. Each senior manager shall be
prepared to propose a solution to the dispute. If, following the Senior Conference, the
dispute is not resolved, either Party may deliver an Arbitration Request in accordance
with the procedures in this Article. If neither Party delivers an Arbitration Request
within one year following the Senior Conference, the Parties shall be deemed to have
waived their claims as to such matters.
26.2 Binding Arbitration. Any matter in issue between the Parties as to their rights under
this Agreement may be decided by arbitration at the election of either Party; provided,
however, that the Parties have first completed a Senior Conference pursuant to this
Section. To initiate arbitration a Party may deliver a notice of dispute and request for
arbitration (an "Arbitration Request ") to the other Party. Any dispute to be decided by
34
arbitration will be decided by a single arbitrator appointed by the Parties or, if such
Parties fail to appoint an arbitrator within fifteen (15) days following the receipt of an
Arbitration Request, upon the application of either of the Parties, the arbitrator shall
be appointed by a Judge of the Superior Court of Justice (Ontario) sitting in the
Judicial District of Toronto Region. The arbitrator shall not have any current or past
business or financial relationships with any Party (except prior arbitration). The
arbitrator shall provide each of the Parties an opportunity to be heard and shall
conduct the arbitration hearing in accordance with the provisions of the Arbitration
Act, 1991 (Ontario). Unless otherwise agreed by the Parties, the arbitrator shall render
a decision within ninety (90) days after the end of the arbitration hearing and shall
notify the Parties in writing of such decision and the reasons therefor. The arbitrator
shall be authorized only to interpret and apply the provisions of this Agreement and
shall have no power to modify or change the Agreement in any manner. The decision
of the arbitrator shall be conclusive, final and binding upon the Parties. The decision
of the arbitrator may be appealed solely on the grounds that the conduct of the
arbitrator, or the decision itself, violated the provisions of the Arbitration Act, 1991
(Ontario) or solely on a question of law as provided for in the Arbitration Act, 1991
(Ontario). The Arbitration Act, 1991 (Ontario) shall govern the procedures to apply in
the enforcement of any award made. If it is necessary to enforce such award, all costs
of enforcement shall be payable and paid by the Party against whom such award is
enforced. Each Party shall be otherwise responsible for its own costs incurred during
the arbitration process.
26.3 Confidentiality. The arbitration proceedings conducted pursuant hereto shall be
confidential. Neither Party shall disclose or permit the disclosure of any information
about the evidence adduced or the documents produced by any Party in the arbitration
proceedings or about the existence, contents, or results of the arbitration award
without the prior written consent of such other Party except as required by order
during the course of a judicial or regulatory proceeding or as required by a
Governmental Authority, so long as the Party intending to make such disclosure shall
give the other Party prompt notice of the disclosure request to afford the other Party
opportunity to protect its interests.
ARTICLE 27
REMEDIES
27.1 The rights, powers and remedies of Bruce Power provided in this Agreement are in
addition to and in no way limit Bruce Power's rights, powers and remedies available at
law or in equity. Each right, power and remedy of Bruce Power provided herein and
available at law or in equity or in any other agreement shall be separate and in addition
to every other such right, power and remedy. Any one or more rights, remedies and
powers may be exercised by Bruce Power from time to time and no such exercise shall
exhaust all rights, remedies or powers of Bruce Power or preclude Bruce Power from
exercising any one or more of such rights, remedies and powers or any combination
thereof from time to time or simultaneously.
35
IN WITNESS WHEREOF, Bruce Power and Customer have caused this Agreement to
be executed by their duly authorized representatives as of the date first above written.
BI -AX INTERNA INC.
By: 4.---
Name:D avid Ingl's °» , - i W.- c-,.--It`_
Title: President
BRUCE POWER L.P., by its General Partner,
BRUCE POWER INC.
By: a/I/
Name: Dwight illett
Title: Executive Vice President, Corporate Services BRUCE POWER
LAW DIVISION
Approved
By: A-1 M'►^ Vi rw4tl Date oZ 0 1
Name: Brian Armstrong, Q.C.
Title: Executive Vice President and General Counsel
36
SCHEDULE A
Industrial Water and Sewer Service
SCHEDULE A.1
CONDITIONS OF SERVICE
A1.1 Customer shall abide by all conditions of this Agreement, and all applicable laws,
statutes, ordinances, decrees, rules, regulations, by -laws (including without limitation
Sections 1 and 2 of the Ontario Clean Water Agency Model Sewer Use By -Law as
amended from time to time, copies of which are attached as Schedule A2 hereto and
forming part hereof), legally enforceable policies, codes or guidelines, judicial, arbitral,
administrative, ministerial, departmental or regulatory, judgments, orders, decisions,
directives, rulings or awards, and conditions of any grant of approval, permission,
certification, consent, registration, authority or licence by any court, statutory body,
self - regulatory authority, stock exchange or other Governmental Authority, including
Nuclear Law.
A1.2 The maximum sewage flow and maximum average contracted sewage loading is
specified in Schedule B.
A1.3 Waste Audit Survey
1) A customer which discharges any amount of Subject Pollutant (as defined in
paragraph (ss) of Section 1, Schedule A.2) shall prepare a Waste Audit Survey (Survey)
in the form set out at Schedule G and submit it to Bruce Power with respect to the
premises from which the discharge occurs by no later than 30 days after commencing
discharge.
Bruce Power approved. Surveys Audit Surve s submitted to ruce ower shall be a roved. If Bruce Power
determines that the Waste Audit Survey does not comply with the requirements of this
Agreement Bruce Power may at its sole discretion refuse or terminate service as the case
maybe.
3)
3.1) The Waste Audit Survey shall be in the form designated by Bruce Power attached
as Schedule G here in,.and may change from time to time.
3.2) In addition to any other matter or requirement designated by Bruce Power, and not
withstanding subsection 3.3 of Section A1.3 Schedule A each Survey shall include the
following:
3.2.1) A description of the processes at the premises which use or produce Subject
Pollutants;
137.
3.2.2) A map indicating locations of Subject Pollutants present at the premises at any
stage of the operations of the premises, including storage inside, outside, above ground
and below ground
3.2.3) The type and / or description of storage container(s) each Subject Pollutant is
contained in;
3.2.4) A complete list of all Subject Pollutants used or produced on the premises;
3.2.5) A description setting out the types, quantities and concentrations of all Subject
Pollutants discharged, directly or indirectly, to a sewer;
3.2.6) A copy of the Certificate of Approval or Provisional Certificate of Approval and
any Amendments (if applicable)
3.2.7) Small quantity generator number (if applicable)
3.2.8) A description of current waste reduction, recycling, waste treatment and
pollution prevention activities with respect to sewer discharge at the premises;
3.2.9) A declaration from an authorized person that the content of the plan is, to the
best of that person's knowledge, true, accurate and complete.
3.3) Bruce Power may designate a different form for the Waste Audit Survey with
respect to any Customer.
3.4) In the event that the activity or business of the Customer which discharges any
amount of a Subject Pollutant which commenced business operations prior to January
1, 2010, shall prepare a Waste Audit Survey and submit it to Bruce Power by no later
than June 30, 2010.
3.5) Any Customer discharging any amount of a Subject Pollutant, which commences
business operations after Jan 1, 2010, shall have 30 days from the date of
commencement of its business operations to prepare a Waste Audit Survey and submit
it to Bruce Power.
3.6) At all times after the dates specified in subsections 3.1, 3.4 and 3.5 of Section 1.3
Schedule A, every Customer discharging a Subject Pollutant shall have a Waste Audit
Survey that has been approved by Bruce Power.
3.7) In the event that the Customer submitting a Waste Audit Survey, is not sent
written notice from Bruce Power that the Survey is not approved by Bruce Power
within 90 days of the Customer delivering the survey to Bruce Power, the survey shall
be deemed to have been approved by Bruce Power.
3.8) Where the Customer receives notice from Bruce Power that it's Waste Audit
Survey has not been approved, the Customer shall have 90 days to amend and resubmit
it's survey to Bruce Power for approval in accordance to this Agreement
3.9) In the event that a Waste Audit Survey resubmitted to Bruce Power in accordance
with subsection 3.8) of this Agreement continues to fail to comply with the
requirements of this Agreement, Bruce Power shall so notify the Customer and the
38
Customer shall be in contravention of subsection 3(1) of this Agreement and shall
continue to be in contravention of this Agreement until such time as Bruce Power
approves of an amended Waste Audit Survey resubmitted by the Customer, in
accordance with this Agreement.
3.10) The Customer discharging a Subject Pollutant shall submit a revised and updated
Waste Audit Survey for the approval of Bruce Power at least once every two years from
the date which the original survey was required to be submitted.
3.11) Bruce Power may designate to the Customer a date with respect to which they
shall be required to submit to Bruce Power a Waste Audit Survey.
3.12) Bruce Power may designate any matter as a Subject Pollutant and may designate a
date with respect to which any Customer discharging such Subject Pollutant shall be
required to submit to Bruce Power a Waste Audit Survey.
3.13) A copy of the Waste Audit Survey shall be kept at all times at the Customer's
premises in respect to which it was prepared and shall be available for inspection by
Bruce Power at any time.
3.14) The Customer shall provide written notification to Bruce Power of any change to
the information required under 3(1).
39
SCHEDULE A.2
SEWAGE QUALITY REQUIREMENTS
as per the Provincial Model Bylaw
SECTION 1
DEFINITIONS
1. In this by -law:
(a) "acute hazardous waste chemical" means a material which is an acute
hazardous waste chemical within the meaning of Ontario Regulation 309 made
under the Environmental Protection Act (Ontario);
(b) "authorized representative of the owner or operator" means
(i) A principal executive officer of at least the level of vice president, if the
owner or operator is a corporation; or
(ii) A general partner or proprietor if the owner or operator is a partnership
or proprietorship, respectively; or
(iii) A duly authorized representative of the individual designated above if
such representative is responsible for the overall operation of the
facilities from which the sewage discharge originates;
(c) "biochemical oxygen demand" means carbonaceous oxygen demand
(biochemical) as determined by Method 507 in Standard Methods when an
inhibiting chemical has been added to prevent ammonia oxidation;
(d) "blowdown" means the discharge of recirculating noncontact cooling water for
the purpose of discharging materials contained in the water, the further buildup
of which would cause concentrations in amounts exceeding limits established by
best engineering practices;
(e) "combined sewer" means a sewer intended to function simultaneously as a
storm sewer and a sanitary sewer;
(f) "commercial waste chemical" means a material which is a commercial waste
chemical within the meaning of Ontario Regulation 309 made under the
Environmental Protection Act. (Ontario);
(g) "composite sample" means a sample which is composed of a series of grab
samples taken at intervals during the sampling period;
(h) "cyanide (total)" means cyanide as determined by Methods 412B plus one of
Method 412C or 412D in Standard Methods;
4G
(i) "de minimis dose" means a dose of radiation to an individual of .05 millisieverts
per year;
(j) "de minimis waste" means any waste radioactive material that will not result in
a dose of radiation exceeding the de minimis dose regardless of the quantity of
the material or how it is used or managed;
(k) "fuels" includes (i) any ignitable liquid intended for use as a fuel with a flash
point less than 61 °Celsius as determined by one of the methods in Ontario
Regulation 309 made under the Environmental Protection Act (Ontario) and (ii)
gasoline, naptha, diesel fuel or fuel oil;
(1) "grab sample" is an aliquot of the flow being sampled taken at one particular
time and place;
(m) "hauled sewage" means waste removed from cesspool, a septic tank system, a
privy vault or privy pit, a chemical toilet, a sewage holding tank or any other
sewage system of a type regulated under Part VII of the Environmental
Protection Act (Ontario);
(n) "hazardous industrial waste" means a material which is a hazardous industrial
waste within the meaning of Ontario Regulation 309 made under the
Environmental Protection Act (Ontario);
(0) "hazardous waste chemical" means a material which is a hazardous waste
chemical within the meaning of Ontario Regulation 309 made under the
Environmental Protection Act (Ontario);
(p) "ignitable waste" means a material which is an ignitable waste within the
meaning of Ontario Regulation 309 made under the Environmental Protection
Act (Ontario);
(q) "industrial" shall mean of or pertaining to industry, manufacturing, commerce,
trade, business, or institutions as distinguished from domestic or residential;
(r) "industrial process area" means any industrial building, property or land area
which during manufacturing, processing or storage comes into direct contact
with any raw material, intermediate product, finished product, byproduct, or
waste product;
(s) "Kjeldahl Nitrogen" means organic nitrogen as determined by one of Method
420A or 420B in Standard Methods;
(t) "matter" includes any solid, liquid or gas;
(u) "municipality" means The Corporation of the Municipality of
Kincardine or its designated representative;
41-
(v) "noncontact cooling water" means water which is used to reduce temperature
for the purpose of cooling and which does not come into direct contact with any
raw material, intermediate product other than heat, or finished product;
(w) "once - through cooling water" means noncontact cooling water that has been
circulated once through the cooling device;
(x) "owner" or "operator" means the owner or operator of any facility or activity
subject to the provisions of this by -law;
(y) "pathological waste" means a material which is a pathological waste within the
meaning of Ontario Regulation 309 made under the Environmental Protection
Act. (Ontario) or any material which may be designated in writing by the Chief
Medical Officer of Health (Ontario);
(z) "PCB" means any monochlorinated or poly - chlorinated biphenyl or any mixture
of these or mixture that contains one or more of them;
(aa) "PCB waste" means a PCB waste within the meaning of Ontario Regulation
148/86 made under the Environmental Protection Act (Ontario);
(bb) "person" includes an individual, association, partnership, corporation,
municipality, Provincial or Federal Agency, or an agent or employee thereof;
(cc) "pesticides" means a pesticide regulated under the Pesticides Act (Ontario);
(dd) "Ph" means the logarithm to the base 10 of the reciprocal of the concentration
of hydrogen ions in moles per litre of solution;
(ee) "phenolic compounds" means those derivatives of aromatic hydrocarbons
which have a hydroxyl group directly attached to the ring as determined by one
of Method 510B or 510C in Standard Methods;
(ff) "phosphorus" means total phosphorus as determined by both Method 424C
plus one of Method 424D, 424E, 424F, or 424G in Standard Methods;
(gg) "reactive waste" means a material which is a reactive waste within the meaning
of Ontario Regulation 309 made under the Environmental Protection Act
(Ontario);
(hh) "sanitary sewer" means a sewer for the collection and transmission of domestic,
commercial, institutional and industrial sewage or any combination thereof;
(ii) "severely toxic material" means any material listed in Schedule 3 of Ontario
Regulation 309 made under the Environmental Protection Act (Ontario);
(jj) "sewage" means any liquid waste containing animal, vegetable or mineral
matter in solution or in suspension, except uncontaminated water;
(kk) "sewage works" means any works for the collection, transmission, treatment or
disposal of sewage, or any part of such works;
42
(11) "SIC code" means Standard Industrial Classification Code contained in either
the Standard Industrial Classification Manual published by the Minister of
Supply and Services Canada, 1980 (Canadian SIC) or the Standard Industrial
Classification Manual published by the Executive Office of the President, Office
of Management and Budget, 1972 (U.S. SIC);
(mm) "solvent extractable matter of animal or vegetable origin" means grease, and oil
as determined by one of Methods 503A, 503B, 503C, or 503D in Standard
Methods:
(nn) "solvent extractable matter of mineral or synthetic origin" means grease and oil
as determined by Method 503B in Standard Methods;
(oo) "Standard Methods" means a procedure set out in Standard Methods for the
Examination of Water and Wastewater published jointly by the American
Public Health Association, American Water Works Association and Water
Pollution Control Federation, 16th Edition (1985), current at the date of testing,
or a procedure published by the Ontario Ministry of the Environment as a
standard method or the equivalent of a standard method;
(pp) "storm sewer" means a sewer for the collection and transmission of
uncontaminated water, stormwater, drainage from land or from a watercourse
or any combination thereof:
(rr) " stormwater" means water from rainfall or other natural precipitation or from
the melting of snow or ice;
(ss) "subject pollutant" means any liquid or solid that contains any of the
substances listed in Schedule A2 of this Agreement that is discharged or could
be discharged to the sewer or combined sewer.
(tt) "'suspended solids" means solid matter in or on a liquid which matter is
removable by filtering and dried at 103 - 105 °C as determined by Method 209C
in Standard Methods;
(uu) "uncontaminated water" means water to which no matter has been added as a
consequence of its use, or to modify its use, by any person;
(vv) "waste disposal site leachate" means leachate from any waste disposal site; and
(ww) "waste radioactive materials" means any waste material exhibiting the property
of spontaneous disintegration of atomic nuclei usually with the emission of
penetrating radiation or particles.
43
SECTION 2
DISCHARGES TO SANITARY SEWERS
DISCHARGES TO COMBINED SEWERS
2 (1) No person shall discharge or deposit or cause or permit the discharge or deposit of
matter of a kind listed below into or in land drainage works, private branch drains or
connections to any sanitary sewer or combined sewer:
1. matter of any type or at any temperature or in any quantity which may be or
may become a health or safety hazard to a sewage works employee, or which
may be or may become harmful to a sewage works, or which may cause the
sewage works effluent to contravene any requirement by or under the Ontario
Water Resources Act or the Environmental Protection Act (Ontario), or which
may cause the sludge from sewage works to fail to meet the criteria relating to
contaminants for spreading the sludge on agricultural lands under Ontario's
Guidelines for Sewage Sludge Utilization on Agricultural Lands (as revised
January, 1986) unless the person has been advised in writing by the operator of
the sewage treatment works that the sludge from the sewage treatment works
will never be used on agricultural lands, or which may interfere with the proper
operation of a sewage works, or which is or may result in a hazard to any
person, animal, property or vegetation and;
2. without limiting the generality of the foregoing, any of the following:
(a) Solid or viscous substances in quantities or of such size as to be capable
of causing obstruction to the flow in a sewer, including but not limited
to ashes, bones, cinders, sand, mud, straw, shavings, metal, glass, rags,
feathers, tar, plastics, wood, underground garbage, animal guts or
tissues, paunch manure, and whole blood.
(b) Sewage that may cause an offensive odour to emanate from a sewage
works, and without limiting the generality of the foregoing, sewage
containing hydrogen sulphide, carbon disulphide, other reduced sulphur
compounds, amines or ammonia in such quantity that may cause an
offensive odour.
(c) Except in the case of discharge into a combined sewer, stormwater,
water from drainage of roofs or land, water from a watercourse or
uncontaminated water.
(d) Water other than stormwater that has originated from a source separate
from the water distribution system of the municipality.
(e) Sewage or uncontaminated water at a temperature greater tha -1 5
degrees Celsius.
(f) Sewage having a Ph less than 5.5 or greater than 9.5.
44
(g) Sewage containing more than 15 milligrams per litre of solvent
extractable matter of mineral or synthetic origin.
(h) Sewage containing more than 150 milligrams per litre of solvent
extractable matter of animal or vegetable origin.
(i) Sewage in which the biochemical oxygen demand exceeds 300
milligrams per litre.
(j) Sewage containing more than 300 milligrams per litre of suspended
solids.
(k) Sewage containing more than 10 milligrams per litre of phosphorus.
(1) Sewage containing more than 100 milligrams per litre of Kjeldahl
nitrogen.
(m) Sewage containing more than 1 milligram per litre of phenolic
compounds.
(n) Sewage which consists of two or more separate liquid layers.
(o) Sewage containing dyes or colouring materials which pass through a
sewage works and discolour the sewage works effluent.
(p) Sewage containing any of the following in excess of the indicated
concentrations;
1500 milligrams /litre
Chlorides expressed as Cl
Sulphates expressed as SO4
50 milligrams /litre
Aluminum expressed as Al
Iron expressed as Fe
10 milliqrams /litre
Fluorides expressed as F
5 milligrams /litre
Antimony expressed as Sb
Bismuth expressed as Bi
Chromium expressed as Cr
Cobalt expressed as Co
Lead expressed as Pb
Manganese expressed as Mn
Molybdenum expressed as Mo
Selenium expressed as Se
Silver expressed as Ag
Tin expressed as Sn
45
Titanium expressed as Ti
Vanadium expressed as V
3 milligrams /litre
Copper expressed as Cu
Nickel expressed as Ni
Zinc expressed as Zn
2 milligrams /litre
Cyanide (total) expressed as CN
1 milligram /litre :
Arsenic expressed as
Cadmium expressed as Cd
0.1 milligrams /litre
Mercury expressed as Hg
(q) The following materials or sewage containing any of the following in
any amount;
Fuels
PCBs
Pesticides
Severely Toxic Materials
Waste Radioactive Materials
(r) The following materials or sewage containing any of the following in
any amount;
Hauled Sewage
Waste Disposal Site Leachate
(s) The following hazardous wastes in any amount;
Acute Hazardous Waste Chemicals
Hazardous Industrial Wastes
Hazardous Waste Chemicals
Ignitable Wastes
Pathological Wastes
PCB Wastes
Reactive Wastes
46
(2) In determining whether the limit with respect to any matter prescribed in subsection
2(1) is contravened, the volume of any water that has been added for the purpose of
enabling the limit to be met and of any storm sewer discharges to a combined sewer
shall be disregarded for the purposes of calculating whether the limit has been met so
that compliance with the limit cannot be attained by dilution.
3 - Compliance Program
3.1) The Customer may submit to Bruce Power a proposed compliance program setting out
activities to be undertaken by the Customer that would result in the prevention or reduction
and control of the discharge or deposit of matter from the Customer's premises into municipal
or private sewer connections to any sanitary or combined sewer.
3.2) The Customer may submit to Bruce Power a proposed compliance program setting out
activities to be undertaken by the Customer that would result in the prevention or reduction
and control of the discharge or deposit of uncontaminated water, groundwater or storm water
from the Customer's premises to eliminate the discharge of matter into municipal or private
sewer connections.
3.3) Upon receipt of an application pursuant to subsections (1) and (2) above, Bruce Power
may issue an approval for a compliance program for the Customer to discharge an effluent
that does not comply with limits specified in this Agreement such approval to be in accordance
with guidelines therefore adopted by Bruce Power from time to time. The Customer shall be
entitled to make non - complying discharges in the amount and only to the extent set out in
Bruce Power's approval during the planning, design, and construction or installation of
facilities or works needed to implement the approved compliance program.
3.4) Every proposed compliance program shall be for a specified length of time during which
treatment facilities are to be installed, and shall be specific as to the remedial action to be
implemented by the industry, the dates of commencement and completion of the activity, and
the materials or other characteristics of the matter to which it relates. The final activity
completion date shall not be later than the final compliance date in the compliance program.
3.5) When a compliance program has been issued to a Customer they shall submit a
compliance program progress report to Bruce Power within 14 days after the scheduled
completion date of each activity listed in the compliance program.
3.6) Bruce Power may terminate any proposed compliance program by written notification at
any time to the Customer in the event that the industry fails or neglects to carry out or
diligently pursue the activities required of it under its approved compliance program.
3.7) Bruce Power is authorized to execute agreements with Customers with respect to
approved compliance programs which agreements may, in accordance with guidelines adopted
by Bruce Power from time to time, include a provision for a reduction in the payment
otherwise required from the Customer to Bruce Power pursuant to an Industrial Waste
47.
Surcharge Agreement. The reduction in payment to Bruce Power may be in such an amount
and for such duration as the agreement may specify.
3.8) Bruce Power may terminate any approved compliance program agreement entered into
pursuant to section 5(5) by written notice at any time to the Customer in the event that the
Customer fails or neglects to carry out or diligently pursue the activities required of it under its
approved compliance program, and in the event of such termination, the Customer shall pay
to Bruce Power the full difference in amount between what it was required to pay to Bruce
Power pursuant to the Industrial Waste Surcharge Agreement, and the amount actually paid to
Bruce Power as a result of having entered into an agreement with respect to the approved
compliance program.
4- Sampling and Analytical Requirements
4.1) The sampling and analysis required by this Agreement shall be carried out in accordance
with the procedures, modified or unmodified, as described in Standard Methods or the
"Guidance Document for the Sampling and Analysis of Wastewater for the 1999 Model Sewer
Use By- law ", or analytical methods adopted by Bruce Power.
4.2) Compliance or non - compliance with this Agreement may be determined by the analysis of
a grab sample or a composite sample done in accordance with subsection 6(1), may contain
additives for its preservation and may be collected manually or by using automatic sampling
device.
4.3) Where there is no maintenance access hole, Bruce Power may by written notice to the
Customer, make use of an alternate device or facility for the purpose of sampling a discharge
to the sewage works
4.4) If the Customer is given written approval from Bruce Power to perform discharger self
monitoring the following will apply:
4.4.1) The Customer shall complete, any monitoring or sampling of any
discharge to a sewage works, as required by Bruce Power, and provide the
results to Bruce Power in accordance with written notification from Bruce
Power; and
4.4.2) The obligations set out in or arising out of 6(3) shall be completed at the
expense of the Customer unless Bruce Power has agreed in writing to share the
expense with the Customer.
4.5) Bruce Power is authorized to execute agreements the Customer with respect to approved
compliance programs or Industrial Waste Surcharge Agreement which agreements may, in
accordance with guidelines adopted by Bruce Power from time to time, include a provision for
routine sampling and reporting on chemical parameters listed in the agreement.
48
4.6)The obligations set out in or arising out of 5(7) shall be completed at the expense of the
Customer unless Bruce Power has agreed in writing to share the expense with the Customer.
5 - ENFORCEMENT
5.1 Penalty - for contravention
Any person other than a corporation who contravenes any section of this agreement may be
liable for a penalty of no more than $10,000.00 for a first offence and not more than
$25,000.00 for any subsequent offence under this Agreement.
5.2 Fine - for contravention - corporation
Notwithstanding any other provision of this Agreement, a Customer in contravention of this
Agreement is liable for a penalty of not more than $50,000.00 for a first offence and not more
than $100,000.00 for any subsequent offences.
49
i
SCHEDULE B
CONTRACTED QUANTITIES
Maximum Sewer Flow
Daily: 5m Hydraulic Loading
300 mg/1 Concentration
Up to a Max BOD Loading of 7 Kg /week
Up to a Max BOD Loading of 26 Kg /Month
Maximum Average Sewer Loading
On average, "biochemical oxygen demand" and "suspended solids" no higher than
300 milligrams per litre.
Note:
1. Additional quantities, at Bruce Power's discretion, may be supplied to
Customer if available.
2. The maximum sewage loading for the average quality is less than the maximum
allowable limit under Article B3.
3. For the purpose of the determining the average sewage loading (strength), the
arithmetic mean will be calculated of at least 2 samples taken during the same
calendar month. CABL may request additional samples to be taken at its
expense that may be included in the arithmetic mean to determine average
sewage loading.
4. For the purpose of determining the Basic Sewer Service quantity a calculation
from the Industrial Water total quantity may be used.
Schedule C
SEWER SERVICE RATES
C1.1 The current rates for the supply of Sewer Service shall be as set forth.
The rate for sewage treatment service for the year 2010 and 2011 shall be:
BASIC Sewer Service
2010 and 2011: $1.523 per m
In December of each of 2011 and 2012 the rates will be adjusted (with adjusted
rates commencing as of January of the following year), in accordance with
annual increases or decreases in the Statistics Canada Consumer Price Index
(Ontario All Items)with October 2010 as the base.
Customer's sewer above contracted maximum flow or average loading
(a) i) If the weekly or monthly average "Biochemical Oxygen Demand" Loadings
is higher than those set in Schedule B and /or "suspended solids" is higher
than 300 milligrams per litre, there will be additional charge(s) equal to an
increasing multiple of the Basic Sewer Service rate as follows:
BOD or Suspended Solids Range
Surcharge Factor
301 - 350 = X25%
351 - 400 = X 50%
401 - 500 = X 200%
501 - 600 =X250%
Customer shall not exceed the above limits at any time
ii) If the Hydraulic Loading daily average for the billing period is higher than
the limit set out in Schedule B, the charge(s) for Basic Sewer Service shall be
proportionately increased to reflect such higher than average Hydraulic
Loading amounts (for example, if the Hydraulic Loading daily average for
the billing period is 10% higher than the limit set out in Schedule B, the
charge(s) for Basic Sewer Service shall increase by 10% for that billing
period).
(b) All above charges would be additive.
(c) Collection of additional charges would not preclude Bruce Power from
exercising its rights to interrupt Service and this right may be exercised if
Customer's effluent exceeds either the Quality Requirements per Schedule A2 or
the Contracted Quantities per Schedule B. Above average quantities could only
be tolerated for limited durations, if at all, as determined by Bruce Power or its
agents.
(d) Ninety (90) days before the end of the Term, Bruce Power will provide BEC
DBL with Basic Sewer Service Rates for the Renewal Term (if any). If Bruce
Power fails to do so, the Basic Sewer Service Rates applicable to the Term will
apply to the Renewal Term (if any).
(e) Without prejudice to any of Bruce Power's other rights, if any of the limitations
outlined in Schedule A.2 are exceeded, the Basic Sewer Service rates charged to
Customer will be increased in proportion to the amount of excess until
contractual compliance is obtained or resumed. For example, exceeding limit(s)
by ten percent will result in a ten percent increase in the rate for BASIC Sewer
Service.
(f) In addition to the forgoing Industrial Waste Surcharge Agreements may be
granted at the sole discretion of Bruce Power on a case by case basis; and
1) Bruce Power may consider an agreement with respect to the discharge of the
following treatable parameters in sewage:
1.1) BOD
1.2) Total phosphorus
1.3) Total suspended solids
1.4) Total Kjeldahl Nitrogen
2) At Bruce Power's discretion an agreement may be for a limited period of time
or one -time discharge;
3) Bruce Power will require laboratory analysis of subject waste to be received
by Bruce Power before any such agreement can be entered into;
4) Agreements entered into by Bruce Power may be terminated by Bruce Power
by written notice at any time where there is an emergency situation of
immediate threat or danger to any person, property, plant or animal life, water
or sewage works; or
4.1) If subject waste exceeds initial parameter limits set out in the original
Industrial Waste Surcharge Agreement on subsequent sampling and lab
analysis; or
4.2) At the discretion of Bruce Power for any reason
SCHEDULE D
INDUSTRIAL WATER SERVICE
Contracted Quantities
Water Supply
Daily: Up to 15 m /day "1
Emergency Water Supply
Fire Protection: Up to 7000 1 /min for 2 hours "2
Note:
1 Additional quantities may be supplied to Customer if available as describe in
Article 3.
"2 The fire protection supply is the total amount available to all BEC customers
and is not offered exclusively to any one customer.
In the event Bruce Power interrupts the supply of Water as provided for in
Article 6.0 of the Agreement or reduces the volume of Water supplied,
Bruce Power will endeavor to supply Emergency Water as required.
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SCHEDULE E
WATER RATES
E.1 The rates for Water and Emergency Water for the year 2010 and 2011 shall be those set
forth below.
Water
2010 and 2011 $0.2463 per m
Emergency Water Meter Service
2010 and 2011 $351.94 /month
In December of each of 2011 and 2012 the rates will be adjusted (with adjusted rates
commencing as of January of the following year), in accordance with annual increases
or decreases in the Statistics Canada Consumer Price Index (Ontario All Items)with
October 2010 as the base.
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SCHEDULE F
Technical Conditions of
Industrial Water and Sewer Service
Fl Terminal Point and Scope of Supply
The Terminal point will be at the Terminal Isolation Valves at a location determined
by Bruce Power (normally Customer Lot line) .
Customer must supply all materials on Customer's side of the Terminal point.
F.2 Design Criteria
Customer's Sewer Equipment shall be designed to ensure that effluent discharged to the
sewer is within the quality and quantity limits specified in this Agreement.
Customer's Water Equipment shall be designed to be capable of withstanding water
pressures of up to 690 Kpa (100 pounds per square inch gauge).
Watermains shall conform to AWWA standards as applicable.
Customer's processes must be designed to accept occasional interruptions.
F.3 Terminal Isolation Valves
The Terminal Isolation Valves will normally be as close as possible to Customer's lot
line. If Terminal Isolation Valves are located inside Customer's property, Customer
shall provided Bruce Power with an easement or easements to allow Bruce Power
access to maintain Bruce Power Equipment and the Meters (subject to subsection 7.1
(c) herein).
€5
Schedule "G"
WASTE AUDIT SURVEY FORM
The completed Waste Audit Survey is to be forwarded to:
Bruce Power
Attention: Bill Jackson, Operations Manager — Property Management
PO Box 1540 B10 02W
Tiverton, ON
NOG 2T0
Please type or print clearly when completing this form.
1 Name of Company
2 Address of Company
3 Owner of Property (if different from Company listed above)
Phone:
Fax:
4 General Site Operation Information
Number of Employees involved in:
Plant: Office: Other: Total:
Number of shifts per day: Number of operating days per week:
5 Brief Description of Product / Service / Company Activity
Include North American Industry Classification System (NAICS) number. If
you do not know this already, you can search the Government Website
below to get your appropriate code.
http: / /www. statcan. ca /english/Subj ects /Standard /naics /2002 /naics02-
index.htm
6 Brief Description of the Processes at the premises which use or
produce subject pollutants.
Include characteristics such as Batch (how many per time period), Continuous, or Both
(explanation to be provided), Seasonal Production
Cycles, Specific Clean -up Periods and Clean -up Activities
7 Average Daily Water Use and Sources
Industrial Water Supply Yes / No m3 /day Estimated or
Measured
Surface Water* * Yes / No m3 /day Estimated or Measured
Groundwater* Yes / No m3/Day Estimated or Measured
Other Sources ** Yes / No m3 /day Estimated or Measured
If flow rate varies significantly provide peak flow rates per day and month
and explanation.
* Provide copy of the Permit to Take Water (as required by the OWRA).
* * If `Yes' — provide explanation as an attachment
57
8 `Are there' or Will there be' any of the following wastewater discharges
from the description as provided? If yes for any, please provide
a brief description and volume.
Process Wastewater Yes / No m3 /day
Cooling Water Yes / No m3 /day
Other Sources of Wastewater (other than sanitary) Yes / No m3 /day
9 Known characteristics of Discharges
Provide existing data on quality of the discharges listed above
Parameter or By -law Average Significant Additional
Condition* Limit Concentration Variation Information
(mg /L) or Range (Yes or No) and Attached
(in mg /L) Reason for the (Yes or No)
Variations
pH level* 6.0 to
10.5
Two or more One
layers*
Temperature* 600C
B.O.D. 300
PCB's 0.0001
Total Suspended 350
Solids
Total Phosphorus 10
Total Kjeldahl 100
Nitrogen
Solvent 15
Extractables — Oil
& Grease (Mineral)
Solvent 150
Extractables — Oil
& Grease
(Vegetable /Animal)
Total Cyanide 2
6 8
Total Aluminium 50
Total Antimony 5
Total Arsenic 1
Cadmium 2
(hexavalent)
Total Cadmium 0.7
Total Chromium 2
Total Cobalt 5
Total Copper 2
Total Lead 1
Total Manganese 5
Total Mercury 0.01
Total Molybdenum 5
Total Nickel 2
Total Selenium 1
Total Silver 5
Total Tin 5
Total Titanium 5
Total Zinc 2
Phenolics (4AAP) 1.0
Chloroform 0.04
1,4 — 0.47
Dichloromethane
Methyl Chloride 0.2
Methylene choride 0.21
1,1,2,2- 1.4
Tetrachlorethane
69
Tetrachloroethylene 0.05
Trichloroethylene 0.07
Benzene 0.1
Ethylbenzene 0.16
1,2- 0.05
dichlorobenzene
1,4- 0.08
dichlorobenzene
Fluoride 10
Toluene 0.016
o- Xylene 0.52
10 Locations of Subject Pollutants, present at premises at any stage of the operations of
the premises, including storage inside, outside, above ground and below ground
Location of Process Units Inside / Outside / Outside but covered
Above Ground / Below Ground
Storage of Raw Materials Inside / Outside / Outside but covered
Above Ground / Below Ground
Storage of Intermediate Products Inside / Outside / Outside but covered
Above Ground / Below Ground
Storage of Final Products Inside / Outside / Outside but covered
Above Ground / Below Ground
11 Complete List of All Subject Type and /or description of storage
Pollutants Used or Produced on container(s) each subject pollutant is
Premises. Please use map or physical contained in. (Attach additional sheet(s)
layout to indicate locations of of paper if necessary).
Subject Pollutants.
6G
12 Physical Layout
• Provide sketch of property (to scale or approximate) showing
buildings, pre- treatment works, property boundaries, effluent lines,
and connections to sanitary, combined and storm sewers.
• Please identify sewers as listed on the Parameter Information Form as
completed above.
• Layout may be attached as separate document — leave note to indicate
submission with this form.
• A flow diagram of the site flows /processes is also required
61-
13 List Subject Discharged Discharged Not Discharged to
Pollutants and Directly Indirectly Sewer
Quantity /Concentration To Sewer To Sewer
(Use
additional sheet(s) of
paper if
necessary)
14 Pre - treatment of Discharge Prior to Discharge
Does the site have any pre- treatment systems for process effluents prior to
discharge to the sewer system? Yes / No
If Yes — provide a description of the pre- treatment devices, contaminants
removed, operational procedures for the device and description of process
utilized in the device.
62
15 Does the site have any of the following programs in place to address
discharges to the sewer system?
Pollution Prevention Yes / No Describe
Waste Treatment Yes / No
Best Management Plan Yes / No
Environmental Management System Yes / No
Other Program / Practises Yes / No
16 Do you have a Certificate of Approval or Provisional Certificate of
Approval?
If yes, please attach a copy with this form.
17 Regulation 347 Information
Provide any Generator Registration Numbers that the site holds under the
requirements of Ontario Regulation 347 under the EPA
Date Form Completed:
Name and Title of Company Representative:
Signature of Authorized Company Representative:
63
AGREEMENT FOR WATER AND SEWAGE
( "Agreement ")
THIS AGREEMENT made as of the f day of January, 2010.
BETWEEN:
BRUCE POWER L.P.
( "Bruce Power ")
OF THE FIRST PART
and
GREENFIELD ETHANOL INC.
(the "Customer ")
OF THE SECOND PART
WHEREAS Customer is carrying on or intends to carry on a business at the BEC adjacent
to the Bruce Power Site located in the Municipality of Kincardine, Ontario;
WHEREAS Bruce Power and Ontario Power Generation Inc. ( "OPG ") are parties to a
lease dated May 11, 2001 (as amended from time to time) with respect to certain portions
of the Bruce Site (the "Lease ") including the lease of certain water and sewer assets
supplying the BEC;
WHEREAS Bruce Power, OPG and the Municipality of Kincardine are negotiating for the
potential transfer of certain of the water and sewer assets supplying the BEC to the
Municipality of Kincardine;
WHEREAS Customer wishes to have an agreement with Bruce Power to secure Water,
Sewer, Emergency Water and Meter Services during the Term, and Bruce Power is willing
to provide such services on the terms and conditions herein.
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the
recitals herein and the mutual covenants hereinafter contained the parties hereto agree as
follows:
ARTICLE 1.0
DEFINITIONS AND INTERPRETATION
1.1 Unless the context otherwise requires, the following terms wherever used in this
Agreement shall have the following meanings:
"Applicable Laws" means, collectively, all applicable laws, statutes, ordinances,
decrees, rules, regulations, by -laws, legally enforceable policies, codes or
guidelines, judicial, arbitral, administrative, ministerial, departmental or
regulatory, judgments, orders, decisions, directives, rulings or awards, as amended
from time to time; and conditions of any grant of approval, permission,
certification, consent, registration, authority or licence by any court, statutory
body, self - regulatory authority, stock exchange or other Governmental Authority,
including Nuclear Law, as amended from time to time.
"Basic Sewer Service" means the treatment of the Hydraulic portion of sewage
from Customer conforming to the quality specifications as described in the
Schedule C herein.
"BEC" means the lands and premises comprising Plan 3M -n3 registered in the
Land Registry Office for the Land Titles Division of Bruce (No. 3) and commonly
referred to as the Bruce Energy Centre located in the Municipality of Kincardine,
Ontario, adjacent.
"BOD" means the Biochemical (carbonaceous) Oxygen Demand as a standard
method of measuring sewage loading.
"Bruce Power L.P." and "Bruce Power" mean Bruce Power L.P., a limited
partnership existing under the laws of Ontario, and includes any successor to
Bruce Power L.P. resulting from any merger, arrangement or other reorganization
of or including Bruce Power L.P. or any continuance under the laws of another
jurisdiction.
"Bruce Power Equipment" means all equipment, facilities and systems included
in the BEC or the Bruce Power Site or between such sites, whether owned or
leased, operated and maintained by, or on behalf of Bruce Power or its agent for
the supply of Service to Customer Equipment.
"Bruce Power Site" means the nuclear power facility located in the Municipality
of Kincardine, Ontario.
"Business Day" means any day other than a Saturday, Sunday or any other day
that is a statutory holiday in Ontario.
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"Claims" includes any claim, demand, action, suit, cause of action, assessment or
reassessment, charge, judgment, debt, liability, expense, cost, damage, or loss,
contingent or otherwise, including loss of value, professional fees, including fees of
legal counsel on a solicitor and his or her own client basis, and all costs incurred in
investigating or pursuing any of the foregoing or any proceeding relating to any of
the foregoing.
"Commencement Date" means January 1, 2010.
"Contracted Quantities" means the rate at which Customer uses Water and
Sewer Service covered by this Agreement, as more fully described in Schedules B &
D herein.
"Contract Loading" means the maximum BOD Loadings contemplated by this
Agreement, as described in the Schedule C herein.
"Customer Contact" has the meaning ascribed to that term in Section
"Customer Equipment" means all equipment, facilities and systems owned,
operated and maintained by and required by Customer for receiving and using
Service.
"Emergency Water" means untreated water from Lake Huron supplied from
Bruce Power's elevated water tower located at the western junction of Farrell Drive
and Bruce County Road 20.
"Governmental Authority" means any federal, provincial, state, municipal or
local government, parliament or legislature, or any regulatory authority, agency,
tribunal, commission, board or department of any such government, parliament or
legislature, or any court or other law, regulation or rule- making entity, or any
arbitrator, each having or reasonably purporting to have jurisdiction in the
relevant circumstances, including, for greater certainty, any Person acting or
reasonably purporting to act under the authority of any Governmental Authority.
"Interruptible Service" means that "Service" made available to Customer in
excess of the Contracted quantities in accordance with the provisions of Schedule
B and D.
"Lease" shall have the meaning ascribed thereto in the recitals tals of this Agreement.
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V
"Meters" means any measuring devices and associated equipment which, as
determined by Bruce Power, are needed to determine the quantity of Water and
Sewer Service and Interruptible Service supplied to Customer.
"Minor Repairs" means, for each calendar year, the first $5000 worth of repairs
and maintenance required, as determined by Bruce Powers in its sole discretion, to
Meters on Customer's premises.
"Nuclear Law" means all federal, provincial or municipal statutes, regulations, by-
laws, permits, orders, decisions or rules, and any legally enforceable policies or
guidelines of any Governmental Authority, relating specifically to the regulation of
nuclear power plants and nuclear material, including the Nuclear Energy Act
(Canada), the Nuclear Liability Act (Canada), and the Nuclear Safety and Control
Act (Canada) and the respective regulations thereunder and any regulatory
guidance documents, directives, standards and policies issued from time to time
by the CNSC or its predecessor.
"Parties" means Bruce Power and Customer and a "Party" means either of them.
"Person" means any individual, sole proprietorship, partnership, firm, entity,
unincorporated association, unincorporated syndicate, unincorporated
organization, trust, body corporate, and where the context requires any of the
foregoing when they are acting as trustee, executor, administrator or other legal
representative.
"Prime Rate" means the rate of interest per annum established and reported by
the Toronto Dominion Bank to the Bank of Canada from time to time as the
reference rate of interest for determination of interest rates that the Toronto
Dominion Bank charges to its customers for Canadian dollar loans made in Canada
by such bank.
"Renewal Term" has the meaning ascribed thereto in Section 2.2 of this
Agreement.
"Sewer Service" means subject to the provisions of this Agreement, Bruce Power
accepting and treating sewage from Customer conforming to the quality
specifications as described in this Agreement.
"Service" means the Water Service, Sewer Service and Emergency Water service
(collectively the "Services ") made available to Customer.
"SP" means the BEC Sewer Plant and the associated supply system, located at 1842
Concession #2, Township of Bruce , ON.
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V
"Term" shall have the meaning ascribed thereto in section 2.1 of this Agreement.
"Terminal Isolating Valves" means the Industrial Water and Sewer Service valves
located at the point of interconnection between the "SP" and Customer Equipment
and which are located approximately at the Customer property line.
"Terminal point" means the point at which the "SP" connects to Customer
Equipment.
"Utility Service Equipment" has the meaning ascribed thereto in section 3.14 of
this Agreement.
"Water" means untreated water from Lake Huron supplied through the Bruce
Power Site at a pressure of between 275 and 55o Kpa (25 -100 psi (g)) to be used as
described in Article 3.
"Water Service" means Water made available to Customer every day of the year in
the amount as set forth in Schedule D herein.
1.2 The following schedules are annexed to and form part of this Agreement:
Schedule "A" - Water and Sewer Service
Schedule "B" - Contracted Quantities
Schedule "C" - Sewer Service Rates
Schedule "D" - Water Service
Schedule "E" - Water Rates
Schedule "F "- Technical Conditions of Industrial Water and Sewer
Service
Schedule "G" - Waste Audit Form
1.3 In this Agreement:
(a) words denoting the singular include the plural and vice versa and words
denoting any gender include all genders;
(b) the word "including" shall mean "including, without limitation ";
(c) when calculating the period of time within which or following which any
act is to be done or step taken, the date which is the reference day in
calculating such period shall be excluded;
(d) all dollar amounts are expressed in Canadian dollars, unless otherwise
indicated; and
(e) the division of this Agreement into separate Articles, Sections, Subsections
and Schedule(s), the provision of a table of contents and the insertion of
-5-
headings is for convenience of reference only and shall not affect the
construction or interpretation of this Agreement.
-6-
ARTICLE 2.0
COMMENCEMENT DATE, TERM, RENEWAL AND TERMINATION
2.1 This Agreement to provide Services to Customer at the BEC shall be in force for a
term commencing on the Commencement Date and terminating December 31,
2013 (the "Term "), unless:
(i) Extended by written agreement between the Parties;
(ii) Renewed in accordance with Section 2.2 below; or
(iii) Terminated earlier without liability:
(a) by mutual Agreement in writing;
(b) by either Party for any reason by providing the other Party with sixty (6o)
days written notice;
(c) by Bruce Power immediately upon written notice to Customer where the
Lease has been terminated for any reason or where Bruce Power otherwise
ceases to have the ability to generate electricity using the CANDU Reactors
at the Bruce Power site;
(d) by Bruce Power immediately upon written notice to Customer where the
supply of Services to Customer is interrupted at Customer's request and
where such interruption continues for more than 210 days during the Term;
or in combination with the Renewal Term, if any;
(e) by Bruce Power upon written notice to Customer if Bruce Power, acting
reasonably, determines that, or through a Senior Conference or arbitration
it is determined that, Customer has breached any part of Articles 17 or 22;
(f) automatically if the Customer institutes proceedings or takes any corporate
action or executes any agreement to authorize its participation in or the
commencement of any proceedings:
(i) seeking to adjudicate it a bankrupt or insolvent; or
(ii) seeking liquidation, dissolution, winding up, reorganization,
arrangement, protection, relief or composition of it or any of its
property or debt or making a proposal with respect to it under any
law relating to bankruptcy, insolvency, reorganization or
compromise of debts or other similar laws (including any application
for reorganization under the Companies' Creditors Arrangement Act
(Canada) or the Bankruptcy and Insolvency Act (Canada) or any
reorganization, arrangement or compromise of debt under the laws
of any applicable jurisdiction);
-7-
(g) automatically if proceedings are commenced against or affecting the
Customer seeking the relief referred to in clause (f) (i) or (ii) above, or
seeking the appointment of, or any creditor of the Customer or any other
Person privately appoints, a receiver, receiver - manager, trustee, custodian,
liquidator or similar official for the Customer or any part of the Customer's
property, and such proceedings or such appointment, as the case may be,
are not stayed or dismissed within 45 days;
(h) automatically if Customer commits any act of bankruptcy; has a receiver
appointed on account of insolvency or in respect of any of its property; or if
it makes a general assignment for the benefit of creditors; or
(i) otherwise in accordance with the terms of this Agreement.
2.2 There shall be no obligation for either party to renew or extend the Term of this
Agreement. Should the parties, at their sole and unfettered discretion, wish to
enter into a renewal or extension of the Term (the "Renewal Term ") it shall be
made pursuant to a written agreement entered into between the parties on such
terms and conditions as is satisfactory to each party in their sole discretion.
2.3 Effective as of the date of this Agreement the Customer waives any Claims,
including without limitation, all Claims directly or indirectly in connection with
the supply or discontinuance of supply of Services, (whether known as of the date
of this Agreement or subsequently discovered) that it has or may have against
either Bruce Power, its landlord, their respective partners, shareholders,
employees, officers, directors (collectively, the "Bruce Power Released Parties ") or
any Person that previously provided Services to the Customer or any previous
owner or occupant of the Customer Premises ( "Prior Provider ") and the Customer
hereby releases and agrees to hold harmless the Bruce Power Released Parties and
any Prior Provider and their respective successors and permitted assigns from all
such Claims. For clarity the Parties acknowledge that the waiver and release in the
immediately preceding sentence is not intended and shall not apply to Claims that
may arise strictly under this Agreement provided that Bruce Power is notified in
writing of such Claims within 15 days after the date the Customer is notified of an
assignment of this Agreement by Bruce Power to a third party. The Customer
acknowledges that Bruce Power holds the benefit of the foregoing in trust for any
Bruce Power Released Parties and any Prior Provider.
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ARTICLE 3.o
SUPPLY OF SERVICES
3.1 Subject to the provisions of this Agreement, Bruce Power shall supply Services to
Customer for the Contracted Quantities set forth in Schedules B and D.
3.2 It is the intention of the Parties that this Agreement provide for a forty -eight (48)
month Agreement for Service, with the possibility of renewal as described herein.
3.3 The execution of this Agreement by Bruce Power in no way obligates Bruce Power,
or represents its intention, to enter into any renewal agreements, or any other
agreements with Customer or any third party.
3.4 The Parties may, upon mutual agreement, alter the Contracted Quantities for
Water.
3.5 Services shall be supplied to Customer at the Terminal Isolation Valve, located on
Lot 5 of the Registered Plan 3M -113, in the Municipality of Kincardine, Ontario, at a
location to be determined by Bruce Power.
3.6 Bruce Power shall endeavor to be ready to supply Services to Customer on the
Commencement Date. However, supply of Services by Bruce Power is subject to
conditions as described in other Articles of this Agreement and the Schedules. The
Customer agrees that Bruce Power shall not be responsible for any losses that may
be suffered by the Customer in the event of a delay in the supply of Services by
Bruce Power regardless of the nature or extent of the delay or otherwise, even if
Bruce Power was advised of the potential for such losses.
3.7 Day -to -day operation of Bruce Power Equipment and Customer Equipment will be
in accordance with the responsibilities set forth in Schedule F attached hereto and
forming part hereof, which Schedule may be amended from time to time by
mutual agreement.
3.8 Prior to Bruce Power opening the Terminal Isolating Valves for the initial supply of
Services, and in any case prior to the Commencement Date, Customer will give
notice in writing to Bruce Power that the Customer Equipment has been designed,
installed and tested in accordance with Article g herein, and is ready to receive (or
continue to receive, as the case may be) Services. On the earlier of the re- opening
of the Terminal Isolating Valves by Bruce Power and the Commencement Date and
at any time thereafter throughout the Term of this Agreement, Customer
represents, warrants, covenants and agrees that Customer Equipment will operate
within its design parameters and if any changes have been made to Customer
-9-
Equipment, such changes have been designed, installed and tested in accordance
with Article 9 herein.
3.9 The maintenance by Bruce Power of Water at a pressure between 25 and 100
pounds per square inch gauge at the Terminal Isolating Valves located at
Customer's property line under the maximum load conditions shall constitute the
supply of Water Service for the purpose of this Agreement. Bruce Power shall use
reasonable diligence in supplying Water within the aforesaid pressure range.
However, Bruce Power shall not be liable to Customer for variations due to
fluctuations in demand at other locations within the BEC.
3.10 The Water is intended for use as industrial water and for fire fighting purposes.
Bruce Power with input from Customers at BEC, recognizing the circumstances at
the time shall establish a priority system for supply of Emergency Water to
Customer and other BEC customers in the event the Water supply is interrupted
by a multiple pump failure at the Bruce Power Site pumphouse or for any other
reason. Priorities shall be based on the need for essential services primarily fire
protection.
3.11 Bruce Power shall measure or take whatever other action is required to measure or
determine the quantity of the Services supplied to Customer.
3.12 Bruce Power has the right at all times to suspend partially or fully the Interruptible
Service that is made available to Customer in accordance with the provisions of
this Agreement.
3.13 The supply of Services to Bruce Power facilities at the Bruce Power Site shall at all
times have precedence over the supply of Services to the Customer. For the
purpose of this Article Bruce Power shall have the right at all times, for reasons of
safety or otherwise, to reduce or interrupt the supply of Services to the Customer
rather than reducing or interrupting the supply of Services to the Bruce Power Site.
3.14 At Bruce Power's request the Customer agrees to grant easements and related
rights to the Municipality of Kincardine, Bruce Power or such other Persons who
may from time to time provide industrial water, sewage (storm and /or sanitary)
service, electricity or steam services to the Customer Premises and any other lands
and premises within the BEC whether such easements are to accommodate
existing services and their related wires, pipes and related equipment and
appliances, including Bruce Power Equipment (collectively, "Utility Service
Equipment ") , including, without limitation, rights for the installation,
maintenance, repair, replacement and removal of such Utility Service Equipment,
or to accommodate the new or relocated easements for such services and their
related Utility Service Equipment. The easements shall be granted for nominal
consideration and incorporate the usual terms and conditions commonly required
as
by a supplier of the services in question. The Customer hereby quit claims and
releases any rights that it may have, including by operation of law, in any Utility
Service Equipment and agrees to confirm this quit claim and release in any grant
of easement contemplated in this Section 3.14. The Customer shall also use
reasonable commercial efforts to obtain postponements in favour of the easements
from all Persons holding an encumbrance on the Customer Premises. The
foregoing are conditional upon compliance with the applicable provisions of the
Planning Act (Ontario) and any required consent thereunder shall be obtained by
Bruce Power and the Customer shall cooperate in connection with the obtaining of
any required consent.
3.15 The provisions of paragraph 3.14 shall survive beyond the expiration or earlier
termination of the Term for the maximum period permitted by Applicable Laws.
a 1-
ARTICLE 4.o
INDUSTRIAL WATER AND SEWER RATES
4.1 The rates for Service shall be as set forth in Schedules C and E attached hereto.
4.2 Bruce Power will invoice Customer for the quantity of Services which has been
measured or determined as being used under this Agreement during any calendar
month on the fifteenth day of the month following or as soon thereafter as
practicable. Customer shall pay such invoice within 3o days after the date of the
invoice.
4.3 Should the Customer fail to make payments as they become due under this
Agreement, interest at an annual rate equal to two (2%) percent above the Prime
Rate on such unpaid amounts shall also become due and payable until payment.
Such interest shall be calculated daily from the date on which any payment
becomes due and compounded annually. If any invoice remains unpaid for thirty
(3o) days after the date of the invoice, Bruce Power may, in addition to all other
remedies available to it, and after giving to Customer at least io days notice in
writing of Bruce Power's intention to do so, discontinue the supply of Service and
may refuse to resume supply so long as any past due invoice, plus the aforesaid
interest, remains unpaid.
4.4 Bruce Power, in its sole discretion, may require Customer to furnish, prior to the
Commencement Date or prior to a resumption of the supply of Service following a
discontinuance of the supply of Service pursuant to Article u, security, in an
amount determined by Bruce Power, to guarantee payment of an estimated three
month's average billing for Services. The security to be furnished shall be in form
acceptable to Bruce Power in its sole discretion and, as determined at that time,
may be in the form of a letter of credit from a chartered bank, a surety bond issued
by a surety company satisfactory to Bruce Power, cash deposit, negotiable bonds or
such other security as is acceptable to Bruce Power.
4.5 Interruption of the supply of Services by Bruce Power in accordance with this
Agreement shall not exempt Customer from the continuing obligation to pay for
Services supplied prior, or subsequent, to the interruption at the times that such
payment is due hereunder.
12
ARTICLE 5.o
AVAILABILITY TO CUSTOMERS
5.1 Service will be available to any customer located at the BEC on a first come, first
served basis.
5.2 The capacity of the Service will be determined by the capacity of the existing
infrastructure.
5.3 It is recognized that Bruce Power has no obligation to expand the capacity of the
Service or infrastructure under this Agreement.
.13
ARTICLE 6.o
INTERRUPTION OF SERVICE
6.i Without limitation to Bruce Power's other rights under this Agreement,
Bruce Power shall have the right to interrupt the supply of Service at any time to
such extent as, in the sole and subjective opinion of Bruce Power, may be
necessary, for:
a. safeguarding life, personal injury, public health, environment or property;
and /or
b. ensuring the safety, stability and reliability of the Bruce Power Equipment.
Customer recognizes Service may be interrupted by Bruce Power. Wherever
possible, Bruce Power will provide Customer with as much advance notice as
possible of interruption of Service. Bruce Power shall use commercially reasonable
efforts to limit the frequency and duration of such interruptions so far as it is
within its power to do so. For the purpose of this Article notice shall be given by
telephone to an employee of Customer who is in a supervisory capacity at that
time. If such persons are unavailable such notice shall be given by telephone to any
other employee of Customer.
6.2 If at any time, in the judgment of Bruce Power or its agents, the quality of sewage
discharged from Customer's plant may not be in compliance with Applicable Laws,
this Agreement (including without limitation Schedule Ai and A2) or reasonable
requirements of Bruce Power so as to cause Bruce Power operating difficulties or
make Bruce Power liable to prosecution, Bruce Power shall have the right to
interrupt the Sewer Service.
6.3 Bruce Power will not be liable for any loss to Customer resulting from Bruce Power
exercising its right of interruption of the Service in accordance with this
Agreement, even if Bruce Power was advised of the potential for such loss.
6.4 Without limitation to Bruce Power's other rights under this Agreement,
Bruce Power shall have the right to interrupt the Service at any time to such extent
as is necessary in the opinion of Bruce Power for the purpose of construction,
maintenance, operation, repair, replacement or extension of Bruce Power
Equipment and connection of new customers. However, such interruptions, if
possible, shall be arranged to occur during times that are mutually agreeable to
both Bruce Power and Customer. If a mutually agreeable time is not attainable,
Bruce Power shall give fifteen (15) days prior notice of its intention to interrupt the
14
Service to Customer. Customer's process should therefore be designed to accept
occasional interruptions. Customer will be given a minimum of seven ('7) Business
Days prior warning of planned shutdowns.
6.5 Bruce Power shall use commercially reasonable efforts to limit the frequency and
duration of such interruptions so far as it is within its power to do so.
Notwithstanding the forgoing, if an emergency situation develops relating to
Bruce Power's Equipment, then the provisos of Article 6.i apply.
6.6 Without limiting any of Bruce Power's rights under Article 11.0, if Service is
interrupted as a result of Customer being in default, Service will not be resumed
until Customer, in the judgment of Bruce Power or its agents, has cured the
default or taken effective measures to prevent a recurrence of the default.
6.7 Bruce Power will not be liable for any punitive, exemplary, indirect, incidental or
consequential damages, including lost revenue or profit, cost of capital, loss of
business reputation, loss of use of any property or loss of opportunity (whether
arising out of contract, tort, by way of indemnity or based on any other theory of
law) experienced by Customer resulting from Bruce Power exercising its right of
interruption of the supply of Services in accordance with this Agreement, even if
Bruce Power was advised of the potential for such loss.
4 5.
ARTICLE 7.o
METERING
7.1 Customer, at the written request of Bruce Power acting reasonably, shall purchase
and install new Meter(s) and shall bear all costs related to such. New Meters must
be approved by Bruce Power before installation. With respect to maintenance and
repairs to the Meters, subject to Applicable Laws:
a) Subject to subsection 7.1(c) of this Article, Customer, at the written request of
Bruce Power in its sole discretion, shall perform (and bear the cost of) any
repairs to Meters located on Customer's premises (failure to do so shall be
considered a default under this Agreement);
b) Calibration of the Meters shall be conducted by, and at the expense of, Bruce
Power;
c) Bruce Power shall be responsible for Minor Repairs.
If, in Bruce Power's judgment, there are special conditions which must be met in
Customer's facilities to allow for the installation and /or operation of Meters,
Customer shall, at its own expense, provide, install and maintain, in accordance
with plans and specifications approved by Bruce Power, the special equipment
required in Bruce Power's judgment for the installation and operation of the
Meters.
7.2 If requested by Bruce Power, Customer shall provide free of charge:
a. a safe and reasonable location on Customer's premises including a manhole
for Minor Repairs;
b. a suitable enclosure for the Meters;
c. a satisfactory power supply;
d. an inline effluent wier if required;
e. all such reasonable conveniences as are required for Bruce Power to install a
water meter prior to the first branch or as otherwise determined by Bruce
Power and for Bruce Power to install similar Meters in Customer's Sewer
Service systems;
f. a secure niov or 220V power supply to the location(s) where the Meters are
installed;
g. in its Service pipe design, a suitable length of straight pipe before and after
the Service Meters - the actual lengths to be determined by pipe diameter
and type of flow element employed, the design of this installation is subject
to Bruce Power's approval; and
a6
h. if requested, 4 or 8 pairs of #20 or #22 AWG cable from the location of the
Meters to Customer's main telephone switchboard, these being for the
purpose of transmitting data to Bruce Power.
7.3 If for any period any Meter or any part of the measuring process thereof, is not in
service, the amount of Service supplied during such period shall be determined by
Bruce Power using the best information available.
7.4 Any meter by -pass lines will be under Bruce Power control and normally tagged in
the closed position.
7.5 If Customer, acting reasonably, suspects an erroneous reading from any applicable
Meter, Customer may request that, and Bruce Power shall, arrange to have the
Meters recalibrated within ten (io) Business Days of Customer's request. If the
Meters are found to be out of calibration by greater than 5% ( + / -), Bruce Power
shall be responsible for costs related to the recalibration and will adjust disputed
invoices accordingly. If the Meters are found to be calibrated with +/- 5 %,
Customer shall immediately reimburse Bruce Power for any costs it incurred with
the recalibration, and pay any outstanding invoices, plus applicable interest.
4 7
ARTICLE 8.o
CUSTOMER'S PREMISES
8.i Bruce Power shall have a right of access to the lands and the premises of Customer
at any reasonable time during the Term and Renewal Term(if any) for any one or
more of the following purposes:
a. inspection, operation, testing, adjustment, repairing, alteration,
reconstruction and /or removal of Bruce Power Equipment, the Terminal
Isolation Valves, Meters and associated equipment, and /or Customer valves
associated with the Meters;
b. inspection of Customer Equipment for compatibility with Bruce Power
Equipment; and /or
c. meter reading.
8.2 Where practical to do so, Bruce Power will provide advance verbal or written
notice to the Customer prior to exercising its right of access to the Customer
premises. If at any time access is refused or delayed and as a result Bruce Power is
prevented from fulfilling its obligations with respect to the supply of Service to any
person or persons other than the Customer, then the Customer shall indemnify
Bruce Power against all claims and demands arising in any manner therefrom.
Bruce Power shall not be required to provide advance notice of access if in Bruce
Power's opinion based on information known to it at the time and believed to be
true there is an actual or apprehended emergency or dangerous situation on the
Customer premises concerning Bruce Power Equipment or Customer Equipment
or if the Customer is in default under this Agreement at the time access is
exercised. In exercising its right of access, Bruce Power and its officers, servants
and agents will comply with the customer's reasonable safety and security
requirements.
8.3 Customer hereby grants to Bruce Power the right at all times during the
continuance of this Agreement to use, free of charge or rent, as much of
Customer's lands as Bruce Power may reasonably deem necessary for the
construction, maintenance, operation, repair, replacement or extension of
Bruce Power Equipment or new connection of Service to Customer and any
other customer in the BEC. The location of the lands required for such purpose is
to be mutually satisfactory to Bruce Power and Customer, and Customer will
provide at no cost to Bruce Power appropriate easements or agreements
satisfactory to Bruce Power in registerable form.
4 8
8.4 Customer agrees to keep its structures, machinery, plant and works at such
distance from Bruce Power Equipment as will permit the safe and efficient
maintenance and operation of Bruce Power Equipment. If Customer requires
relocation of any Bruce Power Equipment, Customer shall furnish on its lands
another location satisfactory to Bruce Power. Bruce Power will perform the work of
relocation and Customer will pay the cost thereof to the extent that Bruce Power
Equipment is used for the supply of Service.
8.5 After termination of this Agreement, Bruce Power shall have the right to have
access to the Customer's premises for the purpose of removing any Bruce Power
Equipment on such premises.
8.6 This Article 8 shall survive termination of this Agreement.
49
ARTICLE 9.o
CUSTOMER'S EQUIPMENT
9.1 Customer Equipment shall at all times conform to all applicable codes, standards
and regulations and shall be designed, installed, operated and maintained in such
a manner so as to be compatible with Bruce Power Equipment. For this purpose
Customer will provide Bruce Power with information, including all necessary
approvals, relating to Customer's Equipment as Bruce Power may reasonably
request.
9.2 Until Bruce Power is satisfied with the compatibility of Customer Equipment to
Bruce Power Equipment, Bruce Power shall not be bound to the delivery of Service
pursuant to this Agreement, or, if delivery of Service has commenced, to continue
the same.
9.3 Customer agrees to provide and install Customer Equipment according to
technical conditions as may be required for safe and economical delivery of Service
pursuant to this Agreement. Currently applicable technical conditions are set
forth in Schedule F which may be amended as considered necessary by
Bruce Power in which event a reasonable period of notice shall be provided to
Customer for compliance with any revised technical conditions.
9.4 Bruce Power shall not be liable for any loss, damage or injury to Customer due in
any way to any failure on the part of Customer to meet the technical conditions as
set forth in this Article.
2
ARTICLE 10.0
CUSTOMER'S OPERATION
10.1 If at any time Customer fails to operate its facilities as required by this Agreement,
Bruce Power may give notice by telephone of such failure to the Customer contact
person mentioned in s.i6(i) (the "Customer Contact ") and Customer shall
immediately remedy the said failure. In case of continued failure after the notice,
Bruce Power may discontinue supply of Service or of any part thereof pursuant to
Article u.
10.2 Customer shall operate the Customer Equipment in such a manner so as not to
cause disturbances or fluctuations on the Service systems through which
Bruce Power is supplying Services to other customers. Customer shall take such
remedial measures at its own expense by way of installing suitable apparatus or
otherwise as may be necessary to reduce any disturbance or fluctuations on the
Service supply system.
21-
ARTICLE 11.0
CUSTOMER IN DEFAULT
11.1 If Customer fails to perform any obligation under this Agreement, Bruce Power
may give written notice to Customer that unless the obligation is completely
fulfilled within a reasonable period of time (as determined by Bruce Power),
Bruce Power may discontinue the supply of Service.
11.2 If Customer continues in default in respect of the obligation beyond the period
specified in the notice contemplated in Section 11.1 above, Bruce Power may
discontinue the supply of Service, and may refuse to resume supply of Service until
Customer has fulfilled its obligation.
11.3 The right to discontinue the supply of Service in this Section is in addition to and
not in limitation of any other right provided elsewhere in this Agreement to
discontinue the supply of Service for failure of Customer to perform a particular
obligation.
11. 4 immediately any If the Customer Contact is not immediate) available to receive an such notice
Bruce Power shall endeavor to provide such notice to an employee of Customer
who is in a supervisory capacity at that time. If such persons are unavailable, such
notice shall be given to any other employee of Customer
11.5 Bruce Power's discontinuance of Services as permitted under this Agreement shall
not be construed as a breach of contract by Bruce Power, nor shall such
discontinuance relieve Customer from its obligations to pay for Service in
accordance with the provisions of this Agreement, and such provisions shall
continue in force until termination of this Agreement, unless Bruce Power
otherwise agrees in writing.
11.6 If Bruce Power, pursuant to Section 11.2, has discontinued supply of Service,
Bruce Power may at its option give written notice to Customer that unless the
obligation is completely fulfilled within a specified period (not less than ten (10)
days), this Agreement will be deemed terminated. Such termination shall be
without waiver of any amounts which may be due or of any rights including the
right to damages for such breach which may have accrued up to and including the
date of such termination.
22
ARTICLE 12.o
LIABILITY
12.1 Customer shall assume all risk, liability or obligation in respect to:
(a) all damage to property of Bruce Power on or off of Customer's lands and
premises; and
(b) all loss, damage or injury to
(i) property of Customer or property of any third person on or off of
Customer's lands and premises, or
(ii) any person or persons (including loss of life) on or off of Customer's
lands and premises,
which loss, damage or injury shall have been due to Service supplied by
Bruce Power to Customer or due to the said property of Bruce Power to the extent
used to supply Service to Customer or due to any reason directly or indirectly
related to this Agreement, except to the degree that such loss, damage or injury
shall have been due to the gross negligence or wilful act of Bruce Power, its
servants or agents.
Without limiting the generality of the foregoing, Customer bears the sole
responsibility for the cost of any damage to Customer Equipment that may occur
due to the operation of Bruce Power Equipment.
Customer also bears the sole responsibility for any damage to equipment of a third
party or Bruce Power or its servants or agents, that may occur due to the operation
of Customer Equipment, except to the degree that such damage shall have been
due to the gross negligence or wilful act of Bruce Power, its servants or agents.
12.2 Customer shall assume all risk, liability or obligation in respect to all actions,
causes of action, suits, proceedings, Claims, demands, losses, damages, penalties,
fines, costs, expenses, obligations and liabilities arising out of a discharge of any
contaminant into the natural environment on Customer's lands and premises or
elsewhere and any fines or orders of any kind that may be levied or made pursuant
to the Environmental Protection Act (Ontario), the Ontario Water Resources Act,
or the Dangerous Goods Transportation Act (Ontario), or other similar legislation
whether federal or provincial or municipal except to the degree that such
discharge shall have been due to the gross negligence or wilful act of Bruce Power,
its servants or agents.
12.3 The Parties acknowledge that the purpose of this Agreement is to provide for a
forty - eight(48) month supply of Service by Bruce Power to Customer at the BEC
and to establish the price at which this Service will be supplied. The parties also
23
acknowledge that the supply of Service may be interrupted from time to time as
permitted and contemplated by this Agreement or as a result of temporary
changes in the system. It is agreed that Bruce Power shall not be liable, in such
circumstances, to Customer for any damages resulting therefrom.
12.4 Customer shall indemnify Bruce Power and save it harmless from all risk, liability,
and obligation assumed by Customer under this Article 12, and all Claims and
demands in connection therewith, save and except such loss, damage or injury due
to the gross negligence or wilful act of Bruce Power, its servants or agents.
12.5 Bruce Power shall indemnify Customer and save it harmless from all risk, liability,
and obligation in connection with the use of Customer's lands used for delivery of
Service to other customers of the BEC as per article 8.3 herewith.
12.6 All Bruce Power Equipment, Terminal Isolation Valves and Meters on or in
Customer's lands and premises shall be there at the risk of Customer. Subject to
ss. 7.1, if any of the Bruce Power Equipment, Terminal Isolation Valves or Meters,
is destroyed or damaged other than by ordinary wear and tear or by Bruce Power's
actions, Customer shall pay to Bruce Power the value of such equipment or, at
Bruce Power's option, the cost of repairing or replacing same.
12.7 Bruce Power shall not be liable for any loss, damage or injury to Customer which,
in Bruce Power's opinion, is due to Customer not taking adequate precautions
against contamination of Customer's product or any other failure on the part of
Customer to meet the requirements as set forth in this Agreement.
12.8 Bruce Power additionally, shall not be liable to Customer for any damages arising
as a result of any failure to supply Service in the event of default by Customer as
set forth in Article n.o.
12.9 Notwithstanding any other provision in this Agreement, in no circumstances
whatsoever shall Bruce Power's liability to Customer exceed $5000.00. regardless of
whether Customer's claim is based in contract, indemnity, tort /extra- contractual
liability (including negligence, strict liability or otherwise).
24
12.10 Nuclear Liability
(a) Notwithstanding any other provision in this Agreement, Bruce Power shall
indemnify, defend and hold harmless Customer from and against any and
all injury to Customer or damage to the property of Customer resulting
from a nuclear incident with respect to the Bruce Nuclear Generating
Station, save and except for:
(i) injury or damage suffered by Customer from a nuclear incident which
occurred wholly or partly as a result of Customer's unlawful act or
omission with intent to cause injury or damage; and
(ii) damage to transportation equipment or storage facilities arising from
a nuclear incident occurring during the carriage or incidental storage
of nuclear material by Customer, unless such damage is covered by
Bruce Power's nuclear liability insurance.
(b) Customer shall not and shall require its representatives, including any of its
subcontractors, consultants, agents or advisers, not to hold any supplier of
Bruce Power liable for injury to Customer or such persons, or damage to the
property of Customer or such persons, resulting from a nuclear incident
with respect to the Bruce Nuclear Generating Station.
(c) Notwithstanding any other provision of this Agreement other than
subsection (a)(i) and (ii) above, Bruce Power shall defend, hold harmless
and indemnify Customer against liability to third parties resulting from a
nuclear incident with respect to the Bruce Nuclear Generating Station.
(d) For the purposes of this section the terms "damage ", "nuclear incident" and
"injury" shall have the meanings ascribed thereto in the Nuclear Liability
Act (Canada) (the "Act ") and the term "supplier" means any person
(regardless of tier in the case of contractors or subcontractors) that has
furnished or is furnishing directly or indirectly, equipment, articles,
information, materials or services for use at the Bruce Nuclear Generating
Station.
25
ARTICLE 13.0
WAIVER
13.1 Any failure by either Bruce Power or Customer to exercise any right or enforce any
remedy under this Agreement shall be limited to the particular instance, and shall
not be deemed to be a waiver of any other right or remedy or affect the validity of
this Agreement.
13.2 The exercise by either Party of any rights or remedy hereunder shall not be
deemed to waive any other rights or remedy that such Party may have, and such
rights or remedies may be exercised and continued concurrently or separately.
26
ARTICLE 14.0
FORCE MAJEURE
14.1 Except that payments required to be made by Customer pursuant to this
Agreement are not excused by any circumstance, happening or event, and without
limiting Bruce Power's rights under Article 2.0, neither Party shall be held
responsible or liable, either directly or indirectly, or be deemed in default or in
breach of this Agreement for any loss, damage, detention, delay, failure or inability
to meet any of its commitments hereunder caused by or arising from any cause
which is unavoidable or beyond its reasonable control, including without
limitation war, hostilities, invasion, insurrection, riot, the order of, the action or
the failure to act by, any competent civil government (including the Government
of Canada, or any provincial or local government thereof or any statutory tribunal
of competent jurisdiction), explosion, fire, strikes, lockouts or labour disputes and
the time or times provided for hereunder for performance by both parties shall be
extended for a period equivalent to the time any such cause was preventing
performance together with any further extension of time as the parties may
mutually agree upon.
14.2 If either Party is unable to perform its obligations hereunder due to a force
majeure cause, it shall so notify the other Party in writing, stating the cause and
shall use its best endeavor to remove such cause provided, however, that neither
Party shall be obligated to resolve or terminate any disagreement with third parties
including labour disputes except under conditions acceptable to it or pursuant to
the final decision of any arbitral, judicial or statutory agency having jurisdiction to
finally resolve the disagreement.
2
ARTICLE 15.o
APPROVALS
15.1 The parties hereto acknowledge and agree that each Party will obtain all necessary
federal, provincial, municipal or other governmental or administrative approvals
for all aspects of its own works.
28
ARTICLE 16.o
CONTACTS
16.1 Any formal notice required by this Agreement shall be deemed properly given if
either faxed with confirming receipt from recipient, sent by registered mail, or
delivered as follows:
(i) on behalf of Customer to:
Greenfield Ethanol Inc.
20 Toronto Street
Toronto, Ontario
M5C 2B8
Attention: President and CEO
Fax No.: (416) 304 -1701
(ii) on behalf of Bruce Power, to:
Bruce Power
P.O. Box 1540, Bio
177 Tie Road
Municipality of Kincardine
R.R. #2
Tiverton, Ontario NoG 2To
Attention: General Counsel
Fax No. (5 3
And to:
Attention: Operations Manager - Property Management
Fax No. (519) 361 -1791
Either Party may change its representative specified above by giving written notice
thereof to the other Party.
16.2 Any written correspondence regarding day -to -day activities between Bruce Power
and Customer shall be deemed properly given if either fax, mailed or delivered as
follows:
29
(i) on behalf of Customer, to:
Greenfield Ethanol Inc.
P.O. Box 2 33
Lot 5 RP 3M -113
R.R. #3 Tiverton, ON
Attention: Plant Manager
Fax No.: (519) 368 -7016
(ii) on behalf of Bruce Power, to:
Bruce Power
P.O. Box 1540, Bio
177 Tie Road
Municipality of Kincardine
R.R. #2 Tiverton, Ontario
NoG 2To
Attention: Gary Lee, Operations Section Manager
Fax No.: (5 3
16.3 Any verbal correspondence regarding the day -to -day activities between
Bruce Power and Customer shall be:
• 1st - Gary Lee, Chief Engineer, Production /Supervisor (telephone number 361-
2673 ext. 5558), or alternatively,
• 2nd - Duty Shift, Boilers and Systems Supervisor (telephone number 361 -2673
Ext. 4551).
• Greenfield Plant Manager (telephone number 519- 368 -7725 ext.79
16.4 Any day -to -day verbal communication regarding the day -to -day activities will be
between Bruce Power and Customer. The sewage Operating Authority (the
operational agent for Bruce Power) will be Todd Davis, Cluster Manager, Owen
Sound Hub, Ontario Clean Water Agency, PO Box 760, Anglesia St. N,
Southhampton, ON., NoH 2Lo (Telephone No.: 519-797 -2561 ext. 224; Fax No.: 519-
797 E -mail: tdavis @ocwa.com).
ao
ARTICLE 17.0
PUBLIC NOTICES
17.1 The Customer shall jointly plan and co- ordinate with Bruce Power any public
notices, press releases, and any other publicity of the Customer concerning this
Agreement and the Customer shall not act in this regard without the prior
approval of Bruce Power, unless such disclosure is required to meet timely
disclosure obligations of any Party under Applicable Laws and stock exchange
rules in circumstances where prior consultation with Bruce Power is not
practicable and a copy of such disclosure is provided to Bruce Power at such time
as it is made to the regulatory authority. Bruce Power shall have the right to make
such press releases, without consultation or approval of the Customer, which
Bruce Power deems in its sole discretion as are required by it. This provision shall
survive expiry of the Term for a period of two years.
a1-
ARTICLE 18.0
SUCCESSORS AND ASSIGNS
18.1 This Agreement shall extend to, be binding upon and enure to the benefit of
Bruce Power and of Customer and their respective successors and permitted
assigns (including any successor by reason of amalgamation of any Party).
18.2 Customer may not assign this Agreement or any rights or obligations under this
Agreement without the prior written consent of Bruce Power, which consent shall
be in the sole and unfettered discretion of Bruce Power and may be unreasonably
withheld.
18.3 Bruce Power may assign its rights or obligations under this Agreement to any third
Party with the prior written consent of the Customer, consent not to be
unreasonably withheld.
18.4 For greater certainty, Bruce Power may assign its rights or obligations under this
Agreement to the Municipality of Kincardine at any time immediately upon
written notice to the Customer.
ARTICLE 19.0
ENTIRE AGREEMENT
19.1 This Agreement, the Schedules attached hereto, and the agreements and other
documents required to be delivered pursuant to this Agreement, if any, constitute
the entire agreement between the Bruce Power and Customer and sets out all the
covenants, promises, warranties, representations, conditions, understandings and
agreements between Bruce Power and Customer pertaining to the subject matter
of this Agreement and supersede all prior agreements, understandings,
negotiations and discussions, whether oral or written between the Parties with
respect thereto and sets forth the entire, complete and exclusive understanding
between the Parties relating to the subject matter hereof. There are no covenants,
promises, warranties, representations, conditions, understandings or other
agreements, oral or written, express, implied or collateral between the Parties in
connection with the subject matter of this Agreement except as specifically set
forth in this Agreement and any document required to be delivered pursuant to
this Agreement. Neither this Agreement nor any provision hereof is intended to
confer upon any person other than the Parties any benefits or any rights or
remedies hereunder. The execution of this Agreement by the Parties has not been
induced by, nor do either of the Parties rely upon or regard as material, any
representations, writings covenants, promises, warranties, conditions,
understandings and agreements whatsoever not incorporated herein and made
part hereof.
ARTICLE 20.0
APPLICABLE LAW
20.1 This Agreement shall for all purposes be construed and interpreted according to
the laws in force in the Province of Ontario.
ARTICLE 21.0
AMENDMENTS
21.1 No amendment, supplement, modification or waiver or termination of this
Agreement and, unless otherwise specified, no consent or approval by any Party,
shall be binding unless executed in writing by the Party to be bound thereby.
33
ARTICLE 22.o
CONFIDENTIALITY
22.1
(a) Except as authorized in writing by the owner, or as contemplated herein, each
Party shall keep confidential all proprietary and confidential information of the
other made available to it as a result of this Agreement, whether or not marked as
such, including, without limitation, all unpublished business and technical
information, papers, or records, however produced. These obligations of
confidentiality shall survive completion and /or termination of this Agreement.
(b) Notwithstanding Section 22.1(a), each Party may disclose confidential information
of the other party where: (a) it discloses such to a court or arbitrator which has
jurisdiction in a particular legal claim, dispute or order, (b) it discloses such to
business entities that are parent companies or subsidiaries of it or any such parent
company or an affiliated company of any of the foregoing ( "Group "); (c) it discloses
such to any of its directors, officers, employees, agents and professional advisors of
it or of its Group or of a third party who have a commercially legitimate need -to-
know and agree in writing to maintain confidentiality; (d) it received that
information independently; or (e) the information becomes public through no
breach of this Agreement.
ARTICLE 23
EXECUTION AND DELIVERY
23.1 This Agreement may be executed by the Parties in counterparts and may be
executed and delivered by facsimile and all such counterparts and facsimiles shall
together constitute one and the same agreement.
ARTICLE 24
SEVERABILITY
24.1 Each of the provisions contained in this Agreement are distinct and severable and
a declaration of invalidity or unenforceability of any such provision or part thereof
by a court of competent jurisdiction shall not affect the validity or enforceability of
any other provision of this Agreement. To the extent permitted by Applicable
Law, the Parties waive any provision of Applicable Law that renders any provision
of this Agreement invalid or unenforceable in any respect. The Parties shall
engage in good faith negotiations to replace any provision which is declared
invalid or unenforceable with a valid and enforceable provision, the economic
effect of which comes as close as possible to that of the invalid or unenforceable
provision which it replaces.
34
ARTICLE 2 5
FURTHER ASSURANCES
25.1 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.
ARTICLE 26
DISPUTE RESOLUTION
26.1 Negotiation. If any dispute between the Parties arises under or in connection
with this Agreement that the contact persons in subsection 16.2 cannot resolve,
each of the contact persons shall promptly advise its senior management, in
writing, of such dispute. Within seven Business Days following delivery of such
notice, a senior manager from each Party shall meet, either in person or by
telephone (the "Senior Conference "), to attempt to resolve the dispute. Each
senior manager shall be prepared to propose a solution to the dispute. If,
following the Senior Conference, the dispute is not resolved, either Party may
deliver an Arbitration Request in accordance with the procedures in this Article. If
neither Party delivers an Arbitration Request within one year following the Senior
Conference, the Parties shall be deemed to have waived their claims as to such
matters.
26.2 Binding Arbitration. Any matter in issue between the Parties as to their rights
under this Agreement may be decided by arbitration at the election of either
Party; provided, however, that the Parties have first completed a Senior
Conference pursuant to this Section. To initiate arbitration a Party may deliver a
notice of dispute and request for arbitration (an "Arbitration Request ") to the
other Party. Any dispute to be decided by arbitration will be decided by a single
arbitrator appointed by the Parties or, if such Parties fail to appoint an arbitrator
within fifteen (15) days following the receipt of an Arbitration Request, upon the
application of either of the Parties, the arbitrator shall be appointed by a Judge of
the Superior Court of Justice (Ontario) sitting in the
p J ( ) g Judicial District of Toronto J
Region. The arbitrator shall not have any current or past business or financial
relationships with any Party (except prior arbitration). The arbitrator shall
provide each of the Parties an opportunity to be heard and shall conduct the
arbitration hearing in accordance with the provisions of the Arbitration Act,
(Ontario). Unless otherwise agreed by the Parties, the arbitrator shall render a
decision within ninety (9o) days after the end of the arbitration hearing and shall
notify the Parties in writing of such decision and the reasons therefor. The
35
arbitrator shall be authorized only to interpret and apply the provisions of this
Agreement and shall have no power to modify or change the Agreement in
any manner. The decision of the arbitrator shall be conclusive, final and binding
upon the Parties. The decision of the arbitrator may be appealed solely on the
grounds that the conduct of the arbitrator, or the decision itself, violated the
provisions of the Arbitration Act, (Ontario) or solely on a question of law as
provided for in the Arbitration Act, (Ontario). The Arbitration Act,
(Ontario) shall govern the procedures to apply in the enforcement of any
award made. If it is necessary to enforce such award, all costs of enforcement shall
be payable and paid by the Party against whom such award is enforced. Each Party
shall be otherwise responsible for its own costs incurred during the arbitration
process.
26.3 Confidentiality. The arbitration proceedings conducted pursuant hereto shall be
confidential. Neither Party shall disclose or permit the disclosure of any
information about the evidence adduced or the documents produced by any Party
in the arbitration proceedings or about the existence, contents, or results of the
arbitration award without the prior written consent of such other Party except as
required by order during the course of a judicial or regulatory proceeding or as
required by a Governmental Authority, so long as the Party intending to make
such disclosure shall give the other Party prompt notice of the disclosure request
to afford the other Party opportunity to protect its interests.
ARTICLE 27
REMEDIES
27.1 The rights, powers and remedies of Bruce Power provided in this Agreement are in
addition to and in no way limit Bruce Power's rights, powers and remedies
available at law or in equity. Each right, power and remedy of Bruce Power
provided herein and available at law or in equity or in any other agreement shall
be separate and in addition to every other such right, power and remedy. Any one
or more rights, remedies and powers may be exercised by Bruce Power from time
to time and no such exercise shall exhaust all rights, remedies or powers of Bruce
Power or preclude Bruce Power from exercising any one or more of such rights,
remedies and powers or any combination thereof from time to time or
simultaneously.
36
IN WITNESS WHEREOF, Bruce Power and Customer have caused this Agreement
to be executed by their duly authorized representatives as of the date first above
written.
GREENFIELD ETHANOL INC.
By : � — �t /�a. -�
Name: Ro ert Gallant
Title: esident and CEO
By:
Name: Brian C. Keith
Title: Vice President and General Counsel
BRUCE POWER L.P., by its General Partner,
BRUCE POWER INC.
BRUCE POWER
B y . LAW DW $6Q!'
Name: Keith WWett1ife/
Title: CFO & EVP - Finance and Commercial Services Approved ' __
Date ��� :! if 1
By: 1111-1 `
Name: Brian Armstrong, Q.C.
Title: Executive Vice President and General Counsel
SCHEDULE A
Industrial Water and Sewer Service
SCHEDULE A.1
CONDITIONS OF SERVICE
Ai.i Customer shall abide by all conditions of this Agreement, and all applicable laws,
statutes, ordinances, decrees, rules, regulations, by -laws (including without
limitation Sections i and 2 of the Ontario Clean Water Agency Model Sewer Use
By -Law as amended from time to time, copies of which are attached as Schedule
A2 hereto and forming part hereof), legally enforceable policies, codes or
guidelines, judicial, arbitral, administrative, ministerial, departmental or
regulatory, judgments, orders, decisions, directives, rulings or awards, and
conditions of any grant of approval, permission, certification, consent, registration,
authority or licence by any court, statutory body, self - regulatory authority, stock
exchange or other Governmental Authority, including Nuclear Law.
A1.2 The maximum sewage flow and maximum average contracted sewage loading is
specified in Schedule B.
A1.3 Waste Audit Survey
i) A customer which discharges any amount of Subject Pollutant (as defined in
paragraph (ss) of Section 1, Schedule A.2) shall prepare a Waste Audit Survey
(Survey) in the form set out at Schedule G and submit it to Bruce Power with
respect to the premises from which the discharge occurs by no later than 3o days
after commencing discharge.
2) Waste Audit Surveys submitted to Bruce Power shall be approved. If Bruce
Power determines that the Waste Audit Survey does not comply with the
requirements of this Agreement Bruce Power may at its sole discretion refuse or
terminate service as the case maybe.
3)
3.1) The Waste Audit Survey shall be in the form designated by Bruce Power
attached as Schedule G here in,.and may change from time to time.
3.2) In addition to any other matter or requirement designated by Bruce Power,
and not withstanding subsection 3.3 of Section A1.3 Schedule A each Survey shall
include the following:
3.2.1) A description of the processes at the premises which use or produce Subject
Pollutants;
38
3.2.2) A map indicating locations of Subject Pollutants present at the premises at
any stage of the operations of the premises, including storage inside, outside,
above ground and below ground
3. The type and / or description of storage container(s) each Subject Pollutant
is contained in;
3.2.4) A complete list of all Subject Pollutants used or produced on the premises;
3.2.5) A description setting out the types, quantities and concentrations of all
Subject Pollutants discharged, directly or indirectly, to a sewer;
3.2.6) A copy of the Certificate of Approval or Provisional Certificate of Approval
and any Amendments (if applicable)
3.2.7) Small quantity generator number (if applicable)
3.2.8) A description of current waste reduction, recycling, waste treatment and
pollution prevention activities with respect to sewer discharge at the premises;
3.2.9) A declaration from an authorized person that the content of the plan is, to
the best of that person's knowledge, true, accurate and complete.
3.3) Bruce Power may designate a different form for the Waste Audit Survey with
respect to any Customer.
3.4) In the event that the activity or business of the Customer which discharges
any amount of a Subject Pollutant which commenced business operations prior to
January 1, 2010, shall prepare a Waste Audit Survey and submit it to Bruce Power
by no later than June 3o, 2010.
3.5) Any Customer discharging any amount of a Subject Pollutant, which
commences business operations after Jan 1, 2010, shall have 3o days from the date
of commencement of its business operations to prepare a Waste Audit Survey and
submit it to Bruce Power.
3.6) At all times after the dates specified in subsections 3.1, 3.4 and 3.5 of Section 1.3
Schedule A, every Customer discharging a Subject Pollutant shall have a Waste
Audit Survey that has been approved by Bruce Power.
3.7) In the event that the Customer submitting a Waste Audit Survey, is not sent
written notice from Bruce Power that the Survey is not approved by Bruce Power
within 90 days of the Customer delivering the survey to Bruce Power, the survey
shall be deemed to have been approved by Bruce Power.
3.8) Where the Customer receives notice from Bruce Power that it's Waste Audit
Survey has not been approved, the Customer shall have 90 days to amend and
resubmit it's survey to Bruce Power for approval in accordance to this Agreement
3.9) In the event that a Waste Audit Survey resubmitted to Bruce Power in
accordance with subsection 3.8) of this Agreement continues to fail to comply with
39
the requirements of this Agreement, Bruce Power shall so notify the Customer and
the Customer shall be in contravention of subsection 3(1) of this Agreement and
shall continue to be in contravention of this Agreement until such time as Bruce
Power approves of an amended Waste Audit Survey resubmitted by the Customer,
in accordance with this Agreement.
3.10) The Customer discharging a Subject Pollutant shall submit a revised and
updated Waste Audit Survey for the approval of Bruce Power at least once every
two years from the date which the original survey was required to be submitted.
3.11) Bruce Power may designate to the Customer a date with respect to which they
shall be required to submit to Bruce Power a Waste Audit Survey.
3.12) Bruce Power may designate any matter as a Subject Pollutant and may
designate a date with respect to which any Customer discharging such Subject
Pollutant shall be required to submit to Bruce Power a Waste Audit Survey.
3.13) A copy of the Waste Audit Survey shall be kept at all times at the Customer's
premises in respect to which it was prepared and shall be available for inspection
by Bruce Power at any time.
3.14) The Customer shall provide written notification to Bruce Power of any change
to the information required under 3(1).
40
SCHEDULE A.2
SEWAGE QUALITY REQUIREMENTS
as per the Provincial Model Bylaw
SECTION i
DEFINITIONS
In this by -law:
(a) "acute hazardous waste chemical" means a material which is an acute
hazardous waste chemical within the meaning of Ontario Regulation 309
made under the Environmental Protection Act (Ontario);
(b) "authorized representative of the owner or operator" means
(i) A principal executive officer of at least the level of vice president, if
the owner or operator is a corporation; or
(ii) A general partner or proprietor if the owner or operator is a
partnership or proprietorship, respectively; or
(iii) A duly authorized representative of the individual designated above
if such representative is responsible for the overall operation of the
facilities from which the sewage discharge originates;
(c) "biochemical oxygen demand" means carbonaceous oxygen demand
(biochemical) as determined by Method 507 in Standard Methods when an
inhibiting chemical has been added to prevent ammonia oxidation;
(d) "blowdown" means the discharge of recirculating noncontact cooling water
for the purpose of discharging materials contained in the water, the further
buildup of which would cause concentrations in amounts exceeding limits
established by best engineering practices;
(e) " combined sewer" means a sewer intended to function simultaneously as a
storm sewer and a sanitary sewer;
(f) "commercial waste chemical" means a material which is a commercial waste
chemical within the meaning of Ontario Regulation 3o9 made under the
Environmental Protection Act. (Ontario);
(g) " composite sample" means a sample which is composed of a series of grab
samples taken at intervals during the sampling period;
(h) "cyanide (total)" means cyanide as determined by Methods 412B plus one of
Method 412C or 412D in Standard Methods;
41-
(i) "de minimis dose" means a dose of radiation to an individual of .05
millisieverts per year;
(j) "de minimis waste" means any waste radioactive material that will not
result in a dose of radiation exceeding the de minimis dose regardless of the
quantity of the material or how it is used or managed;
(k) "fuels" includes (i) any ignitable liquid intended for use as a fuel with a flash
point less than 6i °Celsius as determined by one of the methods in Ontario
Regulation 309 made under the Environmental Protection Act (Ontario)
and (ii) gasoline, naptha, diesel fuel or fuel oil;
(1) "grab sample" is an aliquot of the flow being sampled taken at one
particular time and place;
(m) "hauled sewage" means waste removed from cesspool, a septic tank system,
a privy vault or privy pit, a chemical toilet, a sewage holding tank or any
other sewage system of a type regulated under Part VII of the
Environmental Protection Act (Ontario);
(n) "hazardous industrial waste" means a material which is a hazardous
industrial waste within the meaning of Ontario Regulation 309 made under
the Environmental Protection Act (Ontario);
(o) "hazardous waste chemical" means a material which is a hazardous waste
chemical within the meaning of Ontario Regulation 3o9 made under the
Environmental Protection Act (Ontario);
(p) "ignitable waste" means a material which is an ignitable waste within the
meaning of Ontario Regulation 309 made under the Environmental
Protection Act (Ontario);
(q) "industrial" shall mean of or pertaining to industry, manufacturing,
commerce, trade, business, or institutions as distinguished from domestic
or residential;
(r) "industrial process area" means any industrial building, property or land
area which during manufacturing, processing or storage comes into direct
contact with any raw material, intermediate product, finished product,
byproduct, or waste product;
(s) "Kjeldahl Nitrogen" means organic nitrogen as determined by one of
Method 42oA or 42oB in Standard Methods;
(t) "matter" includes any solid, liquid or gas;
(u) "municipality" means The Corporation of the Municipality of
Kincardine or its designated representative;
42
(v) "noncontact cooling water" means water which is used to reduce
temperature for the purpose of cooling and which does not come into direct
contact with any raw material, intermediate product other than heat, or
finished product;
(w) "once - through cooling water" means noncontact cooling water that has
been circulated once through the cooling device;
(x) "owner" or "operator" means the owner or operator of any facility or activity
subject to the provisions of this by -law;
(y) "pathological waste" means a material which is a pathological waste within
the meaning of Ontario Regulation 309 made under the Environmental
Protection Act. (Ontario) or any material which may be designated in
writing by the Chief Medical Officer of Health (Ontario);
(z) "PCB" means any monochlorinated or poly - chlorinated biphenyl or any
mixture of these or mixture that contains one or more of them;
(aa) "PCB waste" means a PCB waste within the meaning of Ontario Regulation
148/86 made under the Environmental Protection Act (Ontario);
(bb) "person" includes an individual, association, partnership, corporation,
municipality, Provincial or Federal Agency, or an agent or employee
thereof;
(cc) "pesticides" means a pesticide regulated under the Pesticides Act (Ontario);
(dd) "Ph" means the logarithm to the base 10 of the reciprocal of the
concentration of hydrogen ions in moles per litre of solution;
(ee) "phenolic compounds" means those derivatives of aromatic hydrocarbons
which have a hydroxyl group directly attached to the ring as determined by
one of Method 510B or 510C in Standard Methods;
(ff) "phosphorus" means total phosphorus as determined by both Method 424C
plus one of Method 424D, 424E, 424F, or 424G in Standard Methods;
(gg) "reactive waste" means a material which is a reactive waste within the
meaning of Ontario Regulation 309 made under the Environmental
Protection Act (Ontario);
(hh) "sanitary sewer" means a sewer for the collection and transmission of
domestic, commercial, institutional and industrial sewage or any
combination thereof;
(ii) "severely toxic material" means any material listed in Schedule 3 of Ontario
Regulation 3o9 made under the Environmental Protection Act (Ontario);
4 3
(jj) " sewage" means any liquid waste containing animal, vegetable or mineral
matter in solution or in suspension, except uncontaminated water;
(kk) "sewage works" means any works for the collection, transmission, treatment
or disposal of sewage, or any part of such works;
(11) "SIC code" means Standard Industrial Classification Code contained in
either the Standard Industrial Classification Manual published by the
Minister of Supply and Services Canada, 1980 (Canadian SIC) or the
Standard Industrial Classification Manual published by the Executive Office
of the President, Office of Management and Budget, 1972 (U.S. SIC);
(mm) "solvent extractable matter of animal or vegetable origin" means grease, and
oil as determined by one of Methods 5o3A, 5o3B, 5o3C, or 5o3D in Standard
Methods:
(nn) "solvent extractable matter of mineral or synthetic origin" means grease and
oil as determined by Method 5o3B in Standard Methods;
(oo) "Standard Methods" means a procedure set out in Standard Methods for the
Examination of Water and Wastewater published jointly by the American
Public Health Association, American Water Works Association and Water
Pollution Control Federation, 16th Edition (1985), current at the date of
testing, or a procedure published by the Ontario Ministry of the
Environment as a standard method or the equivalent of a standard method;
(pp) "storm sewer" means a sewer for the collection and transmission of
uncontaminated water, stormwater, drainage from land or from a
watercourse or any combination thereof:
(rr) " stormwater" means water from rainfall or other natural precipitation or
from the melting of snow or ice;
(ss) "subject pollutant" means any liquid or solid that contains any of the
substances listed in Schedule A2 of this Agreement that is discharged or
could be discharged to the sewer or combined sewer.
(tt) suspended solids" means solid matter in or on a liquid which matter is
removable by filtering and dried at 103 - 105°C as determined by Method
2o9C in Standard Methods;
(uu) "uncontaminated water" means water to which no matter has been added as
a consequence of its use, or to modify its use, by any person;
(vv) "waste disposal site leachate" means leachate from any waste disposal site;
and
44
(ww) "waste radioactive materials" means any waste material exhibiting the
property of spontaneous disintegration of atomic nuclei usually with the
emission of penetrating radiation or particles.
45
SECTION 2
DISCHARGES TO SANITARY SEWERS
DISCHARGES TO COMBINED SEWERS
2 (1) No person shall discharge or deposit or cause or permit the discharge or deposit of
matter of a kind listed below into or in land drainage works, private branch drains
or connections to any sanitary sewer or combined sewer:
matter of any type or at any temperature or in any quantity which may be
or may become a health or safety hazard to a sewage works employee, or
which may be or may become harmful to a sewage works, or which may
cause the sewage works effluent to contravene any requirement by or under
the Ontario Water Resources Act or the Environmental Protection Act
(Ontario), or which may cause the sludge from sewage works to fail to meet
the criteria relating to contaminants for spreading the sludge on
agricultural lands under Ontario's Guidelines for Sewage Sludge Utilization
on Agricultural Lands (as revised January, 1986) unless the person has been
advised in writing by the operator of the sewage treatment works that the
sludge from the sewage treatment works will never be used on agricultural
lands, or which may interfere with the proper operation of a sewage works,
or which is or may result in a hazard to any person, animal, property or
vegetation and;
2. without limiting the generality of the foregoing, any of the following:
(a) Solid or viscous substances in quantities or of such size as to be
capable of causing obstruction to the flow in a sewer, including but
not limited to ashes, bones, cinders, sand, mud, straw, shavings,
metal, glass, rags, feathers, tar, plastics, wood, underground garbage,
animal guts or tissues, paunch manure, and whole blood.
(b) Sewage that may cause an offensive odour to emanate from a sewage
works, and without limiting the generality of the foregoing, sewage
containing hydrogen sulphide, carbon disulphide, other reduced
sulphur compounds, amines or ammonia in such quantity that may
cause an offensive odour.
(c) Except in the case of discharge into a combined sewer, stormwater,
water from drainage of roofs or land, water from a watercourse or
uncontaminated water.
(d) Water other than stormwater that has originated from a source
separate from the water distribution system of the municipality.
(e) Sewage or uncontaminated water at a temperature greater than 65
degrees Celsius.
46
(f) Sewage having a Ph less than 5.5 or greater than 9.5.
(g) Sewage containing more than 15 milligrams per litre of solvent
extractable matter of mineral or synthetic origin.
(h) Sewage containing more than 150 milligrams per litre of solvent
extractable matter of animal or vegetable origin.
(i) Sewage in which the biochemical oxygen demand exceeds 300
milligrams per litre.
(j) Sewage containing more than 300 milligrams per litre of suspended
solids.
(k) Sewage containing more than io milligrams per litre of phosphorus.
(1) Sewage containing more than ioo milligrams per litre of Kjeldahl
nitrogen.
(m) Sewage containing more than i milligram per litre of phenolic
compounds.
(n) Sewage which consists of two or more separate liquid layers.
(o) Sewage containing dyes or colouring materials which pass through a
sewage works and discolour the sewage works effluent.
(p) Sewage containing any of the following in excess of the indicated
concentrations;
1500 milligrams /litre
Chlorides expressed as Cl
Sulphates expressed as Soo
5o milligrams /litre
Aluminum expressed as Al
Iron expressed as Fe
10 milliqrams /litre
Fluorides expressed as F
5 milligrams /litre
Antimony expressed as Sb
Bismuth expressed as Bi
Chromium expressed as Cr
Cobalt expressed as Co
Lead expressed as Pb
Manganese expressed as Mn
Molybdenum expressed as Mo
Selenium expressed as Se
Silver expressed as Ag
Tin expressed as Sn
Titanium expressed as Ti
Vanadium expressed as V
3 milligrams /litre
Copper expressed as Cu
Nickel expressed as Ni
Zinc expressed as Zn
2 milligrams /litre
Cyanide (total) expressed as CN
1 milligram /litre :
Arsenic expressed as
Cadmium expressed as Cd
o.i milligrams /litre
Mercury expressed as Hg
(q) The following materials or sewage containing any of the following in
any amount;
Fuels
PCBs
Pesticides
Severely Toxic Materials
Waste Radioactive Materials
(r) The following materials or sewage containing any of the following in
any amount;
Hauled Sewage
Waste Disposal Site Leachate
(s) The following hazardous wastes in any amount;
Acute Hazardous Waste Chemicals
Hazardous Industrial Wastes
Hazardous Waste Chemicals
Ignitable Wastes
Pathological Wastes
PCB Wastes
Reactive Wastes
48
(2) In determining whether the limit with respect to any matter prescribed in
subsection 2(1) is contravened, the volume of any water that has been added for
the purpose of enabling the limit to be met and of any storm sewer discharges to a
combined sewer shall be disregarded for the purposes of calculating whether the
limit has been met so that compliance with the limit cannot be attained by
dilution.
3 - Compliance Program
3.1) The Customer may submit to Bruce Power a proposed compliance program setting
out activities to be undertaken by the Customer that would result in the prevention or
reduction and control of the discharge or deposit of matter from the Customer's premises
into municipal or private sewer connections to any sanitary or combined sewer.
3.2) The Customer may submit to Bruce Power a proposed compliance program setting
out activities to be undertaken by the Customer that would result in the prevention or
reduction and control of the discharge or deposit of uncontaminated water, groundwater
or storm water from the Customer's premises to eliminate the discharge of matter into
municipal or private sewer connections.
3.3) Upon receipt of an application pursuant to subsections (i) and (2) above, Bruce Power
may issue an approval for a compliance program for the Customer to discharge an
effluent that does not comply with limits specified in this Agreement such approval to be
in accordance with guidelines therefore adopted by Bruce Power from time to time. The
Customer shall be entitled to make non - complying discharges in the amount and only to
the extent set out in Bruce Power's approval during the planning, design, and
construction or installation of facilities or works needed to implement the approved
compliance program.
3.4) Every proposed compliance program shall be for a specified length of time during
which treatment facilities are to be installed, and shall be specific as to the remedial
action to be implemented by the industry, the dates of commencement and completion
of the activity, and the materials or other characteristics of the matter to which it relates.
The final activity completion date shall not be later than the final compliance date in the
compliance program.
3.5) When a compliance program has been issued to a Customer they shall submit a
compliance program progress report to Bruce Power within 14 days after the scheduled
completion date of each activity listed in the compliance program.
3.6) Bruce Power may terminate any proposed compliance program by written
notification at any time to the Customer in the event that the industry fails or neglects to
carry out or diligently pursue the activities required of it under its approved compliance
program.
49
3.7) Bruce Power is authorized to execute agreements with Customers with respect to
approved compliance programs which agreements may, in accordance with guidelines
adopted by Bruce Power from time to time, include a provision for a reduction in the
payment otherwise required from the Customer to Bruce Power pursuant to an Industrial
Waste Surcharge Agreement. The reduction in payment to Bruce Power may be in such
an amount and for such duration as the agreement may specify.
3.8) Bruce Power may terminate any approved compliance program agreement entered
into pursuant to section 5(5) by written notice at any time to the Customer in the event
that the Customer fails or neglects to carry out or diligently pursue the activities required
of it under its approved compliance program, and in the event of such termination, the
Customer shall pay to Bruce Power the full difference in amount between what it was
required to pay to Bruce Power pursuant to the Industrial Waste Surcharge Agreement,
and the amount actually paid to Bruce Power as a result of having entered into an
agreement with respect to the approved compliance program.
4- Sampling and Analytical Requirements
4.1) The sampling and analysis required by this Agreement shall be carried out in
accordance with the procedures, modified or unmodified, as described in Standard
Methods or the "Guidance Document for the Sampling and Analysis of Wastewater for
the 1999 Model Sewer Use By- law ", or analytical methods adopted by Bruce Power.
4.2) Compliance or non - compliance with this Agreement may be determined by the
analysis of a grab sample or a composite sample done in accordance with subsection 6(1),
may contain additives for its preservation and may be collected manually or by using
automatic sampling device.
4.3) Where there is no maintenance access hole, Bruce Power may by written notice to
the Customer, make use of an alternate device or facility for the purpose of sampling a
discharge to the sewage works
4.4) If the Customer is given written approval from Bruce Power to perform discharger
self monitoring the following will apply:
4.4. The Customer shall complete, any monitoring or sampling of any discharge
to a sewage works, as required by Bruce Power, and provide the results to
Bruce Power in accordance with written notification from Bruce Power; and
4.4. The obligations set out in or arising out of 6(3) shall be completed at the
expense of the Customer unless Bruce Power has agreed in writing to share
the expense with the Customer.
54
4.5) Bruce Power is authorized to execute agreements the Customer with respect to
approved compliance programs or Industrial Waste Surcharge Agreement which
agreements may, in accordance with guidelines adopted by Bruce Power from time to
time, include a provision for routine sampling and reporting on chemical parameters
listed in the agreement.
4.6) The obligations set out in or arising out of 5(7) shall be completed at the expense of
the Customer unless Bruce Power has agreed in writing to share the expense with the
Customer.
5 - Enforcement
5.1 Penalty - for contravention
Any person other than a corporation who contravenes any section of this agreement may
be liable for a penalty of no more than $10,000.00 for a first offence and not more than
$25,000.00 for any subsequent offence under this Agreement.
5.2 Fine - for contravention - corporation
Notwithstanding any other provision of this Agreement, a Customer in contravention of
this Agreement is liable for a penalty of not more than $50,000.00 for a first offence and
not more than $100,000.00 for any subsequent offences.
51-
SCHEDULE B
CONTRACTED QUANTITIES
Maximum Sewer Flow
Daily: 35om Hydraulic Loading
0o m 1 Concentration
Up to a Max BOD Loading of 490 Kg /week
Up to a Max BOD Loading of 1960 Kg /Month
Maximum Average Sewer Loading
On average, "biochemical oxygen demand" and "suspended solids" no higher than
300 milligrams per litre.
Note:
1. Additional quantities, at Bruce Power's discretion, may be supplied to
Customer if available.
2. The maximum sewage loading for the average quality is less than the
maximum allowable limit under Article B3.
3. For the purpose of the determining the average sewage loading (strength),
the arithmetic mean will be calculated of at least 2 samples taken during
the same calendar month. CABL may request additional samples to be
taken at its expense that may be included in the arithmetic mean to
determine average sewage loading.
4. For the purpose of determining the Basic Sewer Service quantity a
calculation from the Industrial Water total quantity may be used.
62
Schedule C
SEWER SERVICE RATES
Ci.i The current rates for the supply of Sewer Service shall be as set forth.
The rate for sewage treatment service for the year 2010 and 2011 shall be:
BASIC Sewer Service
2010 and 2o11: $1.523 per m
In December of each of 2011 and 2012 the rates will be adjusted (with
adjusted rates commencing as of January of the following year), in
accordance with annual increases or decreases in the Statistics Canada
Consumer Price Index (Ontario All Items)with October 2010 as the base.
Customer's sewer above contracted maximum flow or average loading
(a) i) If the weekly or monthly average "Biochemical Oxygen Demand"
Loadings is higher than those set in Schedule B and /or "suspended
solids" is higher than 300 milligrams per litre, there will be additional
charge(s) equal to an increasing multiple of the Basic Sewer Service rate
as follows:
BOD or Suspended Solids Range
Surcharge Factor
301 -35o =X25%
35 - 400 = X 5o%
401- 500 = X 200%
501 - 600 = X 25o%
Customer shall not exceed the above limits at any time
ii) If the Hydraulic Loading daily average for the billing period is higher
than the limit set out in Schedule B, the charge(s) for Basic Sewer
Service shall be proportionately increased to reflect such higher than
average Hydraulic Loading amounts (for example, if the Hydraulic
Loading daily average for the billing period is io% higher than the limit
set out in Schedule B, the charge(s) for Basic Sewer Service shall
increase by io% for that billing period).
(b) All above charges would be additive.
(c) Collection of additional charges would not preclude Bruce Power from
exercising its rights to interrupt Service and this right may be exercised if
Customer's effluent exceeds either the Quality Requirements per Schedule
53
A2 or the Contracted Quantities per Schedule B. Above average quantities
could only be tolerated for limited durations, if at all, as determined by
Bruce Power or its agents.
(d) Ninety (9o) days before the end of the Term, Bruce Power will provide BEC
DBL with Basic Sewer Service Rates for the Renewal Term (if any). If Bruce
Power fails to do so, the Basic Sewer Service Rates applicable to the Term
will apply to the Renewal Term (if any).
(e) Without prejudice to any of Bruce Power's other rights, if any of the
limitations outlined in Schedule A.2 are exceeded, the Basic Sewer Service
rates charged to Customer will be increased in proportion to the amount of
excess until contractual compliance is obtained or resumed. For example,
exceeding limit(s) by ten percent will result in a ten percent increase in the
rate for BASIC Sewer Service.
(0 In addition to the forgoing Industrial Waste Surcharge Agreements may be
granted at the sole discretion of Bruce Power on a case by case basis; and
i) Bruce Power may consider an agreement with respect to the discharge of
the following treatable parameters in sewage:
1.1) BOD
1.2) Total phosphorus
1.3) Total suspended solids
1.4) Total Kjeldahl Nitrogen
2) At Bruce Power's discretion an agreement may be for a limited period of
time or one -time discharge;
3) Bruce Power will require laboratory analysis of subject waste to be
received by Bruce Power before any such agreement can be entered into;
4) Agreements entered into by Bruce Power may be terminated by Bruce
Power by written notice at any time where there is an emergency situation
of immediate threat or danger to any person, property, plant or animal life,
water or sewage works; or
4.1) If subject waste exceeds initial parameter limits set out in the original
Industrial Waste Surcharge Agreement on subsequent sampling and lab
analysis; or
4.2) At the discretion of Bruce Power for any reason
54
SCHEDULE D
INDUSTRIAL WATER SERVICE
Contracted Quantities
Water Supply
Daily: Up to 600 m /day *i
Emergency Water Supply
Fire Protection: Up to 70001 /min for 2 hours * 2
Note:
*1 Additional quantities may be supplied to Customer if available as describe
in Article 3.
* 2 The fire protection supply is the total amount available to all BEC
customers and is not offered exclusively to any one customer.
In the event Bruce Power interrupts the supply of Water as provided for in
Article 6.o of the Agreement or reduces the volume of Water supplied,
Bruce Power will endeavor to supply Emergency Water as required.
55
SCHEDULE E
WATER RATES
E.i The rates for Water and Emergency Water for the year 2010 and 2011 shall be those
set forth below.
Water
2010 and 2011 $0.2463 per m
Emergency Water Meter Service
2010 and 2011 $351.94/month
1. /month
4
In December of each of 2011 and 2012 the rates will be adjusted (with adjusted rates
commencing as of January of the following year), in accordance with annual
increases or decreases in the Statistics Canada Consumer Price Index (Ontario All
Items)with October 2010 as the base.
66
SCHEDULE F
Technical Conditions of
Industrial Water and Sewer Service
Fi Terminal Point and Scope of Supply
The Terminal point will be at the Terminal Isolation Valves at a location
determined by Bruce Power (normally Customer Lot line).
Customer must supply all materials on Customer's side of the Terminal point.
F.2 Design Criteria
Customer's Sewer Equipment shall be designed to ensure that effluent discharged
to the sewer is within the quality and quantity limits specified in this Agreement.
Customer's Water Equipment shall be designed to be capable of withstanding
water pressures of up to 690 Kpa (loo pounds per square inch gauge).
Watermains shall conform to AWWA standards as applicable.
Customer's processes must be designed to accept occasional interruptions.
F.3 Terminal Isolation Valves
The Terminal Isolation Valves will normally be as close as possible to Customer's
lot line. If Terminal Isolation Valves are located inside Customer's property,
Customer shall provided Bruce Power with an easement or easements to allow
Bruce Power access to maintain Bruce Power Equipment and the Meters (subject
to subsection 7.1 (c) herein).
57
Schedule "G"
Waste Audit Survey Form
The completed Waste Audit Survey is to be forwarded to:
Bruce Power
Attention: Bill Jackson, Operations Manager — Property Management
PO Box 1540 B10 02W
Tiverton, ON
NOG 2T0
Please type or print clearly when completing this form.
1 Name of Company
2 Address of Company
3 Owner of Property (if different from Company listed above)
Phone:
Fax:
4 General Site Operation Information
Number of Employees involved in:
Plant: Office: Other: Total:
Number of shifts per day: Number of operating days per week:
5 Brief Description of Product / Service / Company Activity
Include North American Industry Classification System (NAICS) number. If
you do not know this already, you can search the Government Website
below to get your appropriate code.
http: / /www. statcan.ca/english/Subjects /Standard /naics /2002 /naics02-
index.htm
6 Brief Description of the Processes at the premises which use or
produce subject pollutants.
Include characteristics such as Batch (how many per time period), Continuous, or Both
(explanation to be provided), Seasonal Production
Cycles, Specific Clean -up Periods and Clean -up Activities
7 Average Daily Water Use and Sources
Industrial Water Supply Yes / No m3 /day Estimated or
Measured
Surface Water ** Yes / No m3 /day Estimated or Measured
Groundwater* Yes / No m3 /Day Estimated or Measured
Other Sources ** Yes / No m3 /day Estimated or Measured
If flow rate varies significantly provide peak flow rates per day and month
and explanation.
* Provide copy of the Permit to Take Water (as required by the OWRA).
* * If `Yes' — provide explanation as an attachment
59
8 `Are there' or Will there be' any of the following wastewater discharges
from the description as provided? If yes for any, please provide
a brief description and volume.
Process Wastewater Yes / No m3 /day
Cooling Water Yes / No m3 /day
Other Sources of Wastewater (other than sanitary) Yes / No m3 /day
9 Known characteristics of Discharges
Provide existing data on quality of the discharges listed above
Parameter or By -law Average Significant Additional
Condition* Limit Concentration Variation Information
(mg/L) or Range (Yes or No) and Attached
(in mg/L) Reason for the (Yes or No)
Variations
pH level* 6.0 to
10.5
Two or more One
layers*
Temperature* 600C
B.O.D. 300
PCB's 0.0001
Total Suspended 350
Solids
Total Phosphorus 10
Total Kjeldahl 100
Nitrogen
Solvent 15
Extractables — Oil
& Grease (Mineral)
Solvent 150
Extractables — Oil
& Grease
(Vegetable /Animal)
Total Cyanide 2
64
Total Aluminium 50
Total Antimony 5
Total Arsenic 1
Cadmium 2
(hexavalent)
Total Cadmium 0.7
Total Chromium 2
Total Cobalt 5
Total Copper 2
Total Lead 1
Total Manganese 5
Total Mercury 0.01
Total Molybdenum 5
Total Nickel 2
Total Selenium 1
Total Silver 5
Total Tin 5
Total Titanium 5
Total Zinc 2
Phenolics (4AAP) 1.0
Chloroform 0.04
1,4 — 0.47
Dichloromethane
Methyl Chloride 0.2
Methylene choride 0.21
1,1,2,2- 1.4
Tetrachlorethane
61-
Tetrachloroethylene 0.05
Trichloroethylene 0.07
Benzene 0.1
Ethylbenzene 0.16
1,2- 0.05
dichlorobenzene
1,4- 0.08
dichlorobenzene
Fluoride 10
Toluene 0.016
o- Xylene 0.52
10 Locations of Subject Pollutants, present at premises at any stage of the operations of
the premises, including storage inside, outside, above ground and below ground
Location of Process Units Inside / Outside / Outside but covered
Above Ground / Below Ground
Storage of Raw Materials Inside / Outside / Outside but covered
Above Ground / Below Ground
Storage of Intermediate Products Inside / Outside / Outside but covered
Above Ground / Below Ground
Storage of Final Products Inside / Outside / Outside but covered
Above Ground / Below Ground
11 Complete List of All Subject Type and /or description of storage
Pollutants Used or Produced on container(s) each subject pollutant is
Premises. Please use map or physical contained in. (Attach additional sheet(s)
layout to indicate locations of of paper if necessary).
Subject Pollutants.
62
12 Physical Layout
• Provide sketch of property (to scale or approximate) showing
buildings, pre - treatment works, property boundaries, effluent lines,
and connections to sanitary, combined and storm sewers.
• Please identify sewers as listed on the Parameter Information Form as
completed above.
• Layout may be attached as separate document — leave note to indicate
submission with this form.
• A flow diagram of the site flows /processes is also required
63
13 List Subject Discharged Discharged Not Discharged to
Pollutants and Directly Indirectly Sewer
Quantity /Concentration To Sewer To Sewer
(Use
additional sheet(s) of
paper if
necessary)
14 Pre - treatment of Discharge Prior to Discharge
Does the site have any pre- treatment systems for process effluents prior to
discharge to the sewer system? Yes / No
If Yes — provide a description of the pre- treatment devices, contaminants
removed, operational procedures for the device and description of process
utilized in the device.
64
15 Does the site have any of the following programs in place to address
discharges to the sewer system?
Pollution Prevention Yes / No Describe
Waste Treatment Yes / No
Best Management Plan Yes / No
Environmental Management System Yes / No
Other Program / Practises Yes / No
16 Do you have a Certificate of Approval or Provisional Certificate of
Approval?
If yes, please attach a copy with this form.
17 Regulation 347 Information
Provide any Generator Registration Numbers that the site holds under the
requirements of Ontario Regulation 347 under the EPA
Date Form Completed:
Name and Title of Company Representative:
Signature of Authorized Company Representative:
65
AGREEMENT FOR WATER AND SEWAGE
( "Agreement ")
THIS AGREEMENT made as of the 1" day of January, 2010.
BETWEEN:
BRUCE POWER L.P.
OF THE FIRST PART
and
STEELBACK BREWERY INC.
(the "Customer ")
OF THE SECOND PART
WHEREAS Customer is carrying on or intends to carry on a business at the BEC adjacent to
the Bruce Power Site located in the Municipality of Kincardine, Ontario;
WHEREAS Bruce Power and Ontario Power Generation Inc. ( "OPG ") are parties to a lease
dated May 11, 2001 (as amended from time to time) with respect to certain portions of the
Bruce Site (the "Lease ") including the lease of certain water and sewer assets supplying the
BEC;
WHEREAS Bruce Power, OPG and the Municipality of Kincardine are negotiating for the
potential transfer of certain of the water and sewer assets supplying the BEC to the
Municipality of Kincardine;
WHEREAS Customer wishes to have an agreement with Bruce Power to secure Water, Sewer,
Emergency Water and Meter Services during the Term, and Bruce Power is willing to provide
such services on the terms and conditions herein.
NOW THEREFORE THIS AGREEMENT WITNESSES that in consideration of the recitals
herein and the mutual covenants hereinafter contained the parties hereto agree as follows:
-2-
ARTICLE 1.0
DEFINITIONS AND INTERPRETATION
1.1 Unless the context otherwise requires, the following terms wherever used in this
Agreement shall have the following meanings:
"Applicable Laws" means, collectively, all applicable laws, statutes, ordinances,
decrees, rules, regulations, by -laws, legally enforceable policies, codes or guidelines,
judicial, arbitral, administrative, ministerial, departmental or regulatory, judgments,
orders, decisions, directives, rulings or awards, as amended from time to time; and
conditions of any grant of approval, permission, certification, consent, registration,
authority or licence by any court, statutory body, self - regulatory authority, stock
exchange or other Governmental Authority, including Nuclear Law, as amended from
time to time.
"Basic Sewer Service" means the treatment of the Hydraulic portion of sewage from
Customer conforming to the quality specifications as described in the Schedule C
herein.
"BEC" means the lands and premises comprising Plan 3M -113 registered in the Land
Registry Office for the Land Titles Division of Bruce (No. 3) and commonly referred to
as the Bruce Energy Centre located in the Municipality of Kincardine, Ontario,
adjacent.
"BOD" means the Biochemical (carbonaceous) Oxygen Demand as a standard method
of measuring sewage loading.
"Bruce Power L.P." and "Bruce Power" mean Bruce Power L.P., a limited partnership
existing under the laws of Ontario, and includes any successor to Bruce Power L.P.
resulting from any merger, arrangement or other reorganization of or including
Bruce Power L.P. or any continuance under the laws of another jurisdiction.
"Bruce Power Equipment" means all equipment, facilities and systems included in the
BEC or the Bruce Power Site or between such sites, whether owned or leased, operated
and maintained by, or on behalf of Bruce Power or its agent for the supply of Service to
Customer Equipment.
"Bruce Power Site" means the nuclear power facility located in the Municipality of
Kincardine, Ontario.
"Business Day" means any day other than a Saturday, Sunday or any other day that is a
statutory holiday in Ontario.
"Customer Contact" has the meaning ascribed to that term in Section 10.1.
-3-
"Contracted Quantities" means the rate at which Customer uses Water and Sewer
Service covered by this Agreement, as more fully described in Schedules B & D herein.
"Claims" includes any claim, demand, action, suit, cause of action, assessment or
reassessment, charge, judgment, debt, liability, expense, cost, damage, or loss,
contingent or otherwise, including loss of value, professional fees, including fees of
legal counsel on a solicitor and his or her own client basis, and all costs incurred in
investigating or pursuing any of the foregoing or any proceeding relating to any of the
foregoing.
"Contract Loading" means the maximum BOD Load contemplated by this Agreement,
as described in the Schedule C herein.
"Commencement Date" means January 1, 2010.
"Customer Equipment" means all equipment, facilities and systems owned, operated
and maintained by and required by Customer for receiving and using Service.
"Emergency Water" means untreated water from Lake Huron supplied from
Bruce Power's elevated water tower located at the western junction of Farrell Drive and
Bruce County Road 20.
"Governmental Authority" means any federal, provincial, state, municipal or local
government, parliament or legislature, or any regulatory authority, agency, tribunal,
commission, board or department of any such government, parliament or legislature,
or any court or other law, regulation or rule- making entity, or any arbitrator, each
having or reasonably purporting to have jurisdiction in the relevant circumstances,
including, for greater certainty, any Person acting or reasonably purporting to act
under the authority of any Governmental Authority.
"Water Service" means Water made available to Customer every day of the year in the
amount as set forth in Schedule D herein.
"Interruptible Service" means that "Service" made available to Customer in excess of
the Contracted quantities in accordance with the provisions of schedule B and D.
"Lease" shall have the meaning ascribed thereto in the recitals of this Agreement.
"Meters" means any measuring devices and associated equipment which, as determined
by Bruce Power, are needed to determine the quantity of Water and Sewer Service and
Interruptible Service supplied to Customer.
-4-
"Minor Repairs" means, for each calendar year, the first $5000 worth of repairs and
maintenance required, as determined by Bruce Powers in its sole discretion, to Meters
on Customer's premises.
"Nuclear Law" means all federal, provincial or municipal statutes, regulations, by-
laws, permits, orders, decisions or rules, and any legally enforceable policies or
guidelines of any Governmental Authority, relating specifically to the regulation of
nuclear power plants and nuclear material, including the Nuclear Energy Act (Canada),
the Nuclear Liability Act (Canada), and the Nuclear Safety and Control Act (Canada)
and the respective regulations thereunder and any regulatory guidance documents,
directives, standards and policies issued from time to time by the CNSC or its
predecessor.
"Parties" means Bruce Power and Customer and a "Party" means either of them.
"Person" means any individual, sole proprietorship, partnership, firm, entity,
unincorporated association, unincorporated syndicate, unincorporated organization,
trust, body corporate, and where the context requires any of the foregoing when they
are acting as trustee, executor, administrator or other legal representative.
"Prime Rate" means the rate of interest per annum established and reported by the
Toronto Dominion Bank to the Bank of Canada from time to time as the reference rate
of interest for determination of interest rates that the Toronto Dominion Bank charges
to its customers for Canadian dollar loans made in Canada by such bank.
"Renewal Term" has the meaning ascribed thereto in Section 2.2 of this Agreement.
"Sewer Service" means subject to the provisions of this Agreement, Bruce Power
accepting and treating sewage from Customer conforming to the quality specifications
as described in this Agreement.
"Service" means the Water Service, Sewer Service, Emergency Service and Meter
Service (collectively the "Services ") made available to Customer.
"SP" means the BEC Sewer Plant and the associated supply system, located at 1842
Concession #2, Township of Bruce , ON.
"Term" shall have the meaning ascribed hereof in section 2.1 of this Agreement.
"Terminal Isolating Valves" means the Industrial Water and Sewer Service valves
located at the point of interconnection between the "SP" and Customer Equipment and
which are located approximately at the Customer property line.
"Terminal point" means the point at which the "SP" connects to Customer
Equipment.
-5-
"Utility Service Equipment" has the meaning ascribed hereof in section 3.14 of this
Agreement.
"Water" means untreated water from Lake Huron supplied through the Bruce Power
Site at a pressure of between 275 and 550 Kpa (25 -100 psi (g)) to be used in accordance
as described in Article 3.
1.2 The following schedules are annexed to and form part of this Agreement:
Schedule "A" - Water and Sewer Service
Schedule "B" - Contracted Quantities
Schedule "C" - Sewer Service Rates
Schedule "D" - Water Service
Schedule "E" - Water Rates
Schedule "F "- Technical Conditions of Industrial Water and Sewer
Service
Schedule "G" - Waste Audit Form
1.3 In this Agreement:
(a) words denoting the singular include the plural and vice versa and words
denoting any gender include all genders;
(b) the word "including" shall mean "including, without limitation ";
(c) when calculating the period of time within which or following which any act is
to be done or step taken, the date which is the reference day in calculating such
period shall be excluded;
(d) all dollar amounts are expressed in Canadian dollars, unless otherwise
indicated; and
(e) the division of this Agreement into separate Articles, Sections, Subsections and
Schedule(s), the provision of a table of contents and the insertion of headings is
for convenience of reference only and shall not affect the construction or
interpretation of this Agreement.
-6-
ARTICLE 2.0
COMMENCEMENT DATE, TERM, RENEWAL AND TERMINATION
2.1 This Agreement to provide Services to Customer at the BEC shall be in force for a term
commencing on the Commencement Date and terminating December 31, 2013 (the
"Term "), unless terminated earlier without liability:
(i). Extended by written agreement between the Parties;
(ii) Renewed in accordance with Section 2.2 below; or
(iii) terminated
(a) by mutual Agreement in writing;
(b) by either Party, in their sole, subjective and unfettered discretion, without any
requirement to consider the interests of the other party whatsoever, without
cause or for cause upon 60 days written notice to the other Party;
(c) by Bruce Power immediately upon written notice to Customer where the Lease
has been terminated for any reason or where Bruce Power otherwise ceases to
have the ability to generate electricity using the CANDU Reactors at the Bruce
Power site;
(d) by Bruce Power immediately upon written notice to Customer where the supply
of Services to Customer is interrupted at Customer's request and where such
interruption continues for more than 210 days during the Term; or in
combination with the Renewal Term, if any;
(e) by Bruce Power upon written notice to Customer if Bruce Power, acting
reasonable, determine that, or through a Senior Conference or arbitration it is
determined that, Customer has breached any part of Articles 17 or 22;
(f) automatically if proceedings are commenced against or affecting the Customer
or, or the Customer institutes proceedings or takes any corporate action or
executes any agreement to authorize its participation in or the commencement
of any proceedings:
(i) seeking to adjudicate it a bankrupt or insolvent; or
(ii) seeking liquidation, dissolution, winding up, reorganization,
arrangement, protection, relief or composition of it or any of its
property or debt or making a proposal with respect to it under any law
relating to bankruptcy, insolvency, reorganization or compromise of
debts or other similar laws (including any application for reorganization
under the Companies' Creditors Arrangement Act (Canada) or the
Bankruptcy and Insolvency Act (Canada) or any reorganization,
-7-
arrangement or compromise of debt under the laws of any applicable
jurisdiction);
(g) automatically if proceedings are commenced against or affecting the Customer
seeking the appointment of, or any creditor of the Customer or any other
Person privately appoints, a receiver, receiver - manager, trustee, custodian,
liquidator or similar official for the Customer or any part of the Customer's
property, including the Collateral or any part of it;
(h) automatically if Customer commits any act of bankruptcy; has a receiver
appointed on account of insolvency or in respect of any property; or makes a
general assignment for the benefit of creditors; or
(i) otherwise in accordance with the terms of this Agreement.
2.2 There shall be no obligation for either party to renew or extend the Term of this
Agreement. Should the parties, at their sole and unfettered discretion, wish to enter
into a renewal or extension of the Term (the "Renewal Term ") it shall be made
pursuant to a written agreement entered into between the parties on such terms and
conditions as is satisfactory to each party in their sole discretion.
2.3 Effective as of the date of this Agreement the Customer waives any Claims, including
without limitation, all Claims directly or indirectly in connection with the supply or
discontinuance of supply of Services, (whether known as of the date of this Agreement
or subsequently discovered) that it has or may have against either Bruce Power, its
landlord, their respective partners, shareholders, employees, officers, directors
(collectively, the "Bruce Power Released Parties ") or any Person that previously
provided Services to the Customer or any previous owner or occupant of the Customer
Premises ( "Prior Provider ") and the Customer hereby releases and agrees to hold
harmless the Bruce Power Released Parties and any Prior Provider and their respective
successors and permitted assigns from all such Claims. For clarity the Parties
acknowledge that the waiver and release in the immediately preceding sentence is not
intended and shall not apply to Claims that may arise strictly under this Agreement
provided that Bruce Power is notified in writing of such Claims on or before the date
the Customer is notified of an assignment of this Agreement by Bruce Power to a third
party. The Customer acknowledges that Bruce Power holds the benefit of the
foregoing in trust for any Bruce Power Released Parties and any Prior Provider.
-8-
ARTICLE 3.0
SUPPLY OF SERVICES
3.1 Subject to the provisions of this Agreement, Bruce Power shall supply Services to
Customer for the Contracted Quantities set forth in Schedule B and D.
3.2 It is the intention of the Parties that this Agreement provide for a forty -eight (48)
month Agreement for Service, with the possibility of renewal as described herein.
3.3 The execution of this Agreement by Bruce Power in no way obligates Bruce Power, or
represents its intention, to enter into any renewal agreements, or any other agreements
with Customer or any third party
3.4 The Parties may, upon mutual agreement, alter the Contracted Quantities for Water.
3.5 Services shall be supplied to Customer at the Terminal Isolation Valve, located on Lot
15 of the Registered Plan 3m -113, in the Municipality of Kincardine, Ontario, at a
location to be determined by Bruce Power.
3.6 Bruce Power shall endeavor to be ready to supply Services to Customer on the
Commencement Date. However, supply of Services by Bruce Power is subject to
conditions as described in other Articles of this Agreement and the Schedules. The
Customer agrees that Bruce Power shall not be responsible for any losses that may be
suffered by the Customer in the event of a delay in the supply of Services by Bruce
Power regardless of the nature or extent of the delay or otherwise, even if Bruce Power
was advised of the potential for such losses.
3.7 Day -to -day operation of Bruce Power Equipment and Customer Equipment will be in
accordance with the operating responsibilities for supply of Services as set forth in
Schedule F attached hereto and forming part hereof, which Schedule may be amended
from time to time by mutual agreement..
3.8 Prior to Bruce Power opening the Terminal Isolating Valves for the initial supply of
Services, and in any case prior to the Effective Date, Customer will give notice in
writing to Bruce Power that the Customer Equipment has been designed, installed and
tested in accordance with Article 9 herein, and is ready to receive (or continue to
receive, as the case may be) Services. On the earlier of the re- opening of the Terminal
Isolating Valves by Bruce Power and the Effective Date and at any time thereafter
throughout the Term of this Agreement, Customer represents, warrants, covenants and
agrees that Customer Equipment will operate within its design parameters and if any
changes have been made to Customer Equipment, such changes have been designed,
installed and tested in accordance with Article 9 herein.
-9-
3.9 The maintenance by Bruce Power of Water at a pressure between 25 and 100 pounds
per square inch gauge at the Terminal Isolating Valves located at Customer's property
line under the maximum load conditions shall constitute the supply of Industrial Water
Service for the purpose of this Agreement. Bruce Power shall use reasonable diligence
in supplying Water within the aforesaid pressure range. However, Bruce Power shall
not be liable to Customer for variations due to fluctuations in demand at other
locations within the BEC.
3.10 The Water is intended for use as industrial water and for fire fighting purposes.
Bruce Power with input from Customers at BEC, recognizing the circumstances at the
time shall establish a priority system for supply of Emergency Water to Customer and
other BEC customers in the event the Water supply is interrupted by a multiple pump
failure at the Bruce Power Site pumphouse or for any other reason. Priorities shall be
based on the need for essential services primarily fire protection.
3.11 Bruce Power shall measure or take whatever other action is required to measure or
determine the quantity of the Services supplied to Customer.
3.12 Bruce Power has the right at all times to suspend partially or fully the Interruptible
Service that is made available to Customer in accordance with the provisions of this
Agreement.
3.13 The supply of Services to Bruce Power facilities at the Bruce Power Site shall at all
times have precedence over the supply of Services to the Customer. For the purpose of
this Article Bruce Power shall have the right at all times, for reasons of safety or
otherwise, to reduce or interrupt the supply of Services to the Customer rather than
reducing or interrupting the supply of Services to the Bruce Power Site.
1G
3.14 At Bruce Power's request the Customer agrees to grant easements and related rights to
the Municipality of Kincardine, Bruce Power or such other Persons who may from time
to time provide industrial water, sewage (storm and /or sanitary) service, electricity or
steam services to the Customer Premises and any other lands and premises within the
BEC whether such easements are to accommodate existing services and their related
wires, pipes and related equipment and appliances, including Bruce Power Equipment
(collectively, "Utility Service Equipment ") , including, without limitation, rights for the
installation, maintenance, repair, replacement and removal of such Utility Service
Equipment, or to accommodate the new or relocated easements for such services and
their related Utility Service Equipment. The easements shall be granted for nominal
consideration and incorporate the usual terms and conditions commonly required by a
supplier of the services in question. The Customer hereby quit claims and releases any
rights that it may have, including by operation of law, in any Utility Service Equipment
and agrees to confirm this quit claim and release in any grant of easement contemplated
in this Section 3.14. The Customer shall also use reasonable commercial efforts to obtain
postponements in favour of the easements from all Persons holding an encumbrance on
the Customer Premises. The foregoing are conditional upon compliance with the
applicable provisions of the Planning Act (Ontario) and any required consent thereunder
shall be obtained by Bruce Power and the Customer shall cooperate in connection with
the obtaining of any required consent.
3.15 The provisions of paragraph 3.14 shall survive beyond the expiration or earlier
termination of the Term for the maximum period permitted by Applicable Laws.
-11-
ARTICLE 4.0
INDUSTRIAL WATER AND SEWER RATES
4.1 The rates for Service shall be as set forth in Schedule C and E attached hereto.
4.2 Bruce Power will invoice Customer for the quantity of Services which has been
measured or determined as being used under this Agreement during any calendar
month on the fifteenth day of the month following or as soon thereafter as practicable.
Customer shall pay such invoice within 30 days after the date of the invoice.
4.3 Should the Customer fail to make payments as they become due under this Agreement,
interest at an annual rate equal to two (2 %) percent above the Prime Rate on such
unpaid amounts shall also become due and payable until payment. Such interest shall
be calculated daily from the date on which any payment becomes due and compounded
annually. If any invoice remains unpaid for thirty (30) days after the date of the invoice,
Bruce Power may, in addition to all other remedies available to it, and after giving to
Customer at least 10 days notice in writing of Bruce Power's intention to do so,
discontinue the supply of Service and may refuse to resume supply so long as any past
due invoice, plus the aforesaid interest, remains unpaid.
4.4 Bruce Power, in its sole discretion, may require Customer to furnish, prior to the
Commencement Date or prior to a resumption of the supply of Service following a
discontinuance of the supply of Service pursuant to Article 11, security, in an amount
determined by Bruce Power, to guarantee payment of an estimated three month's
average billing for Services. The security to be furnished shall be in form acceptable to
Bruce Power in its sole discretion and, as determined at that time, may be in the form
of a letter of credit from a chartered bank, a surety bond issued by a surety company
satisfactory to Bruce Power, cash deposit, negotiable bonds or such other security
acceptable to Bruce Power.
4.5 Interruption of the supply of Services by Bruce Power in accordance with this
Agreement shall not exempt Customer from the continuing obligation to pay for
Services supplied prior, or subsequent, to the interruption at the times that such
payment is due hereunder.
12
ARTICLE 5.0
AVAILABILITY TO CUSTOMERS
5.1 Service will be available to any customer located at the BEC on a first come, first served
basis.
5.2 The capacity of the Service will be determined by the capacity of the existing
infrastructure.
5.3 It is recognized that Bruce Power has no obligation to expand the capacity of the
Service or infrastructure under this Agreement.
13
ARTICLE 6.0
INTERRUPTION OF SERVICE
6.1 Without limitation to Bruce Power's other rights under this Agreement, Bruce Power
shall have the right to interrupt the supply of Service at any time to such extent as, in
the sole and subjective opinion of Bruce Power, may be necessary, for:
a. safeguarding life, personal injury, public health, environment or property;
and /or
b. ensuring the safety, stability and reliability of Bruce Power or it agents
Equipment.
Customer recognizes Service may be interrupted by Bruce Power. Wherever possible,
Bruce Power will provide Customer with as much advance notice as possible of
interruption of Service. Bruce Power shall use commercially reasonable efforts to limit
the frequency and duration of such interruptions so far as it is within its power to do
so. For the purpose of this Article notice shall be given by telephone to an employee of
Customer who is in a supervisory capacity at that time. If such persons are unavailable
such notice shall be given by telephone to any other employee of Customer.
6.2 If at any time, in the judgment of Bruce Power or its agents, the quality of sewage
discharged from Customer's plant may not be in compliance with Applicable Laws, this
Agreement (including without limitation Schedule Al and A2) or reasonable
requirements of Bruce Power so as to cause Bruce Power operating difficulties or make
Bruce Power liable to prosecution, Bruce Power shall have the right to interrupt the
Sewer Service.
6.3 Bruce Power will not be liable for any loss to Customer resulting from Bruce Power
exercising its right of interruption of the Service in accordance with this Agreement,
even if Bruce Power was advised of the potential for such loss.
6.4 Without limitation to Bruce Power's other rights under this Agreement, Bruce Power
shall have the right to interrupt the Service at any time to such extent as is necessary in
the opinion of Bruce Power for the purpose of construction, maintenance, operation,
repair, replacement or extension of Bruce Power Equipment and connection of new
Customers. However, such interruptions, if possible, shall be arranged to occur during
times that are mutually agreeable to both Bruce Power and Customer. If a mutually
agreeable time is not attainable, Bruce Power shall give fifteen (15) days prior notice of
its intention to interrupt the Service to Customer. Customer's process should therefore
be designed to accept occasional interruptions. Customer will be given a minimum of
seven (7) Business Days prior warning of planned shutdowns.
14
6.5 Bruce Power shall use commercially reasonable efforts to limit the frequency and
duration of such interruptions so far as it is within its power to do so.
Notwithstanding the forgoing, if an emergency situation develops relating to
Bruce Power's Equipment, then the provisos of Article 6.1 apply.
6.6 Without limiting any of Bruce Power's rights under Article 11.0, if Service is
interrupted as a result of Customer being in default, Service will not be resumed until
Customer, in the judgment of Bruce Power or its agents, has cured the default or taken
effective measures to prevent a recurrence of the default.
6.7 Bruce Power will not be liable for any punitive, exemplary, indirect, incidental or
consequential damages, including lost revenue or profit, cost of capital, loss of business
reputation, loss of use of any property or loss of opportunity (whether arising out of
contract, tort, by way of indemnity or based on any other theory of law) experienced
by Customer resulting from Bruce Power exercising its right of interruption of the
supply of Services in accordance with this Agreement, even if Bruce Power was advised
of the potential for such loss.
1s
ARTICLE 7.0
METERING
7.1 Customer, at the written request of Bruce Power acting reasonably, shall purchase and
install new Meter(s) and shall bear all costs related to such. New Meters must be
approved by Bruce Power before installation. With respect to maintenance and repairs
to the Meters, subject to Applicable Laws:
a) Subject to subsection 7.1(c) of this Article, Customer, at the written request of
Bruce Power in its sole discretion, shall perform (and bear the cost of) any repairs
to Meters located on Customer's premises (failure to do so shall be considered a
default under this Agreement);
b) Calibration of the Meters shall be conducted by, and at the expense of, Bruce
Power;
c) Bruce Power shall be responsible for Minor Repairs.
If, in Bruce Power's judgment, there are special conditions which must be met in
Customer's facilities to allow for the installation and /or operation of Meters, Customer
shall, at its own expense, provide, install and maintain, in accordance with plans and
specifications approved by Bruce Power, the special equipment required in
Bruce Power's judgment for the installation and operation of the Meters.
7.2 If requested by Bruce Power, Customer shall provide free of charge:
a. a safe and reasonable location on Customer's premises including a manhole for
Minor Repairs;
b. a suitable enclosure for the Meters;
c. a satisfactory power supply;
d. an inline effluent wier if required;
e. all such reasonable conveniences as are required for Bruce Power to install a
water meter prior to the first branch or as otherwise determined by Bruce Power
and for Bruce Power to install similar Meters in Customer's Sewer Service
systems;
f. a secure 110v or 220v power supply to the location(s) where the Meters are
installed;
g. in its Service pipe design, a suitable length of straight pipe before and after the
Service Meters - the actual lengths to be determined by pipe diameter and type
of flow element employed, the design of this installation is subject to
Bruce Power's approval; and
h. if requested, 4 or 8 pairs of #20 or #22 AWG cable from the location of the
Meters to Customer's main telephone switchboard, these being for the purpose
of transmitting data to Bruce Power.
16
7.3 If for any period any Meter or any part of the measuring process thereof, is not in
service, the amount of Service supplied during such period shall be determined by
Bruce Power using the best information available.
7.4 Any meter by -pass lines will be under Bruce Power control and normally tagged in the
closed position.
7.5 If Customer, acting reasonably, suspects an erroneous reading from any applicable
Meter, Customer may request that, and Bruce Power shall, arrange to have the Meters
recalibrated within ten (10) Business Days of Customer's request. If the Meters are
found to be out of calibration by greater than 5% ( + / -), Bruce Power shall be
responsible for costs related to the recalibration and will adjust disputed invoices
accordingly. If the Meters are found to be calibrated with +1- 5 %, Customer shall
immediately reimburse Bruce Power for any costs it incurred with the recalibration,
and pay any outstanding invoices, plus applicable interest.
17
ARTICLE 8.0
CUSTOMER'S PREMISES
8.1 Bruce Power shall have a right of access to the lands and the premises of Customer at
any reasonable time during the Term and Renewal Term(if any) for any one or more of
the following purposes:
a. inspection, operation, testing, adjustment, repairing, alteration, reconstruction
and /or removal of Bruce Power Equipment, the Terminal Isolation Valves,
Meters and associated equipment, and /or Customer valves associated with the
Meters;
b. inspection of Customer Equipment for compatibility with Bruce Power
Equipment; and /or
c. meter reading.
8.2 Where practical to do so, Bruce Power will provide advance verbal or written notice to
the Customer prior to exercising its right of access to the Customer premises provided
that Bruce Power and its employees, officers, and contractors shall be entitled to enter
the Customer premises without first obtaining any additional permission to do so in
and if at any time access is refused or delayed and as a result Bruce Power is prevented
from fulfilling its obligations with respect to the supply of Service to any person or
persons other than the Customer, then the Customer shall indemnify Bruce Power
against all claims and demands arising in any manner therefrom. Bruce Power shall
not be required to provide advance notice of access if in Bruce Power's opinion based
on information known to it at the time and believed to be true there is an actual or
apprehended emergency or dangerous situation on the Customer premises concerning
Bruce Power Equipment or Customer Equipment or if the Customer is in default under
this Agreement at the time access is exercised.
8.3 Customer hereby grants to Bruce Power the right at all times during the continuance
of this Agreement to use, free of charge or rent, as much of Customer's lands as
Bruce Power may reasonably deem necessary for the construction, maintenance,
operation, repair, replacement or extension of Bruce Power Equipment or new
connection of Service to Customer and any other customer in the BEC. The
location of the lands required for such purpose is to be mutually satisfactory to
Bruce Power and Customer, and Customer will provide at no cost to Bruce Power
appropriate easements or agreements satisfactory to Bruce Power in registerable form.
8.4 Customer agrees to keep its structures, machinery, plant and works at such distance
from Bruce Power Equipment as will permit the safe and efficient maintenance and
operation of Bruce Power Equipment. If Customer requires relocation of any
48
Bruce Power Equipment, Customer shall furnish on its lands another location
satisfactory to Bruce Power. Bruce Power will perform the work of relocation and
Customer will pay the cost thereof to the extent that Bruce Power Equipment is used
for the supply of Service.
8.5 After termination of this Agreement, Bruce Power shall have the right to have access to
the Customer's premises for the purpose of removing any Bruce Power Equipment on
such premises.
8.6 This Article 8 shall survive termination of this Agreement.
ARTICLE 9.0
CUSTOMER'S EQUIPMENT
9.1 Customer Equipment shall at all times conform to all applicable codes, standards and
regulations and shall be designed, installed, operated and maintained in such a manner
so as to be compatible with Bruce Power Equipment. For this purpose Customer will
provide Bruce Power with information, including all necessary approvals, relating to
Customer's Equipment as Bruce Power may reasonably request.
9.2 Until Bruce Power is satisfied with the compatibility of Customer Equipment to
Bruce Power Equipment, Bruce Power shall not be bound to the delivery of Service
pursuant to this Agreement, or, if delivery of Service has commenced, to continue the
same.
9.3 Customer agrees to provide and install Customer Equipment according to technical
conditions as may be required for safe and economical delivery of Service pursuant to
this Agreement. Currently applicable technical conditions are set forth in Schedule F
which may be amended as considered necessary by Bruce Power in which event a
reasonable period of notice shall be provided to Customer for compliance with any
revised technical conditions.
9.4 Bruce Power shall not be liable for any loss, damage or injury to Customer due in any
way to any failure on the part of Customer to meet the technical conditions as set forth
in this Article.
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ARTICLE 10.0
CUSTOMER'S OPERATION
10.1 If at any time Customer fails to operate its facilities as required by this Agreement,
Bruce Power may give notice by telephone of such failure to the Customer contact
person mentioned in s.16(i) (the "Customer Contact ") and Customer shall immediately
remedy the said failure. In case of continued failure after the notice, Bruce Power may
discontinue supply of Service or of any part thereof pursuant to Article 11.
10.2 Customer shall operate the Customer Equipment in such a manner so as not to cause
disturbances or fluctuations on the Service systems through which Bruce Power is
supplying Services to other customers. Customer shall take such remedial measures at
its own expense by way of installing suitable apparatus or otherwise as may be
necessary to reduce any disturbance or fluctuations on the Service supply system.
2G
ARTICLE 11.0
CUSTOMER IN DEFAULT
11.1 If Customer fails to perform any obligation under this Agreement, Bruce Power may
give written notice to Customer that unless the obligation is completely fulfilled within
a reasonable period of time (as determined by Bruce Power), Bruce Power may
discontinue the supply of Service.
11.2 If Customer continues in default in respect of the obligation beyond the period
specified in the notice contemplated in Section 11.1 above, Bruce Power may
discontinue the supply of Service, and may refuse to resume supply of Service until
Customer has fulfilled its obligation.
11.3 The right to discontinue the supply of Service in this Section is in addition to and not in
limitation of any other right provided elsewhere in this Agreement to discontinue the
supply of Service for failure of Customer to perform a particular obligation.
11.4 If the Customer Contact is not immediately available to receive any such notice
Bruce Power shall endeavor to provide such notice to an employee of Customer who is
in a supervisory capacity at that time. If such persons are unavailable, such notice shall
be given to any other employee of Customer
11.5 Bruce Power's discontinuance of Services as permitted under this Agreement shall not
be construed as a breach of contract by Bruce Power, nor shall such discontinuance
relieve Customer from its obligations to pay for Service in accordance with the
provisions of this Agreement, and such provisions shall continue in force until
termination of this Agreement, unless Bruce Power otherwise agrees in writing.
11.6 If Bruce Power, pursuant to Section 11.2, has discontinued supply of Service,
Bruce Power may at its option give written notice to Customer that unless the
obligation is completely fulfilled within a specified period (not less than ten (10) days),
this Agreement will be deemed terminated. Such termination shall be without waiver
of any amounts which may be due or of any rights including the right to damages for
such breach which may have accrued up to and including the date of such termination.
21-
ARTICLE 12.0
LIABILITY
12.1 Customer shall assume all risk, liability or obligation in respect to:
(a) all damage to property of Bruce Power on or off of Customer's lands and
premises; and
(b) all loss, damage or injury to
(i) property of Customer or property of any third person on or off of
Customer's lands and premises, or
(ii) any person or persons (including loss of life) on or off of Customer's lands
and premises,
which loss, damage or injury shall have been due to Service supplied by Bruce Power to
Customer or due to the said property of Bruce Power to the extent used to supply
Service to Customer or due to any reason directly or indirectly related to this
Agreement, except to the degree that such loss, damage or injury shall have been due to
the gross negligence or wilful act of Bruce Power, its servants or agents.
Without limiting the generality of the foregoing, Customer bears the sole responsibility
for the cost of any damage to Customer Equipment that may occur due to the
operation of Bruce Power Equipment.
Customer also bears the sole responsibility for any damage to equipment of a third
party or Bruce Power or its servants or agents, that may occur due to the operation of
Customer Equipment, except to the degree that such damage shall have been due to the
gross negligence or wilful act of Bruce Power, its servants or agents.
12.2 Customer shall assume all risk, liability or obligation in respect to all actions, causes of
action, suits, proceedings, Claims, demands, losses, damages, penalties, fines, costs,
expenses, obligations and liabilities arising out of a discharge of any contaminant into
the natural environment on Customer's lands and premises or elsewhere and any fines
or orders of any kind that may be levied or made pursuant to the Environmental
Protection Act (Ontario), the Ontario Water Resources Act, or the Dangerous Goods
Transportation Act (Ontario), or other similar legislation whether federal or provincial
or municipal except to the degree that such discharge shall have been due to the gross
negligence or wilful act of Bruce Power, its servants or agents.
12.3 The Parties acknowledge that the purpose of this Agreement is to provide for a forty —
eight(48) month supply of Service by Bruce Power to Customer at the BEC and to
establish the price at which this Service will be supplied. The parties also acknowledge
that the supply of Service may be interrupted from time to time as permitted and
22
contemplated by this Agreement or as a result of temporary changes in the system. It is
agreed that Bruce Power shall not be liable, in such circumstances, to Customer for any
damages resulting therefrom.
12.4 Customer shall indemnify Bruce Power and save it harmless from all risk, liability, and
obligation assumed by Customer under this Article 12, and all Claims and demands in
connection therewith, save and except such loss, damage or injury due to the gross
negligence or wilful act of Bruce Power, its servants or agents.
12.5 Bruce Power shall indemnify Customer and save it harmless from all risk, liability, and
obligation in connection with the use of Customer's lands used for delivery of Service
to other customers of the BEC as per article 8.3 herewith.
12.6 All Bruce Power Equipment, Terminal Isolation Valves and Meters on or in Customer's
lands and premises shall be there at the risk of Customer. Subject to ss. 7.1, if any of
the Bruce Power Equipment, Terminal Isolation Valves or Meters, is destroyed or
damaged other than by ordinary wear and tear or by Bruce Power's actions, Customer
shall pay to Bruce Power the value of such equipment or, at Bruce Power's option, the
cost of repairing or replacing same.
12.7 Bruce Power shall not be liable for any loss, damage or injury to Customer which, in
Bruce Power's opinion, is due to Customer not taking adequate precautions against
contamination of Customer's product or any other failure on the part of Customer to
meet the requirements as set forth in this Agreement.
12.8 Bruce Power additionally, shall not be liable to Customer for any damages arising as a
result of any failure to supply Service in the event of default by Customer as set forth in
Article 11.0.
12.9 Notwithstanding any other provision in this Agreement, in no circumstances
whatsoever shall Bruce Power's liability to Customer exceed $5000.00. regardless of
whether Customer's claim is based in contract, indemnity, tort /extra - contractual
liability (including negligence, strict liability or otherwise).
23
12.10 Nuclear Liability
(a) Notwithstanding any other provision in this Agreement, Bruce Power shall
indemnify, defend and hold harmless Customer from and against any and all injury to
Customer or damage to the property of Customer resulting from a nuclear incident
with respect to the Bruce Nuclear Generating Station, save and except for:
(i) injury or damage suffered by Customer from a nuclear incident which occurred
wholly or partly as a result of Customer's unlawful act or omission with intent
to cause injury or damage; and
(ii) damage to transportation equipment or storage facilities arising from a nuclear
incident occurring during the carriage or incidental storage of nuclear material
by Customer, unless such damage is covered by Bruce Power's nuclear liability
insurance.
(b) Customer shall not and shall require its representatives, including any of its
subcontractors, consultants, agents or advisers, not to hold any supplier of Bruce
Power liable for injury to Customer or such persons, or damage to the property of
Customer or such persons, resulting from a nuclear incident with respect to the Bruce
Nuclear Generating Station.
(c) Notwithstanding any other provision of this Agreement other than subsection (a) (i)
and (ii) above, Bruce Power shall defend, hold harmless and indemnify Customer
against liability to third parties resulting from a nuclear incident with respect to the
Bruce Nuclear Generating Station.
(d) For the purposes of this section the terms "damage ", "nuclear incident" and
"injury" shall have the meanings ascribed thereto in the Nuclear Liability Act (Canada)
(the "Act ") and the term "supplier" means any person (regardless of tier in the case of
contractors or subcontractors) that has furnished or is furnishing directly or indirectly,
equipment, articles, information, materials or services for use at the Bruce Nuclear
Generating Station.
24
ARTICLE 13.0
WAIVER
13.1 Any failure by either Bruce Power or Customer to exercise any right or enforce any
remedy under this Agreement shall be limited to the particular instance, and shall not
be deemed to be a waiver of any other right or remedy or affect the validity of this
Agreement.
13.2 The exercise by either Party of any rights or remedy hereunder shall not be deemed to
waive any other rights or remedy that such Party may have, and such rights or remedies
may be exercised and continued concurrently or separately.
25
ARTICLE 14.0
FORCE MAJEURE
14.1 Except that payments required to be made by Customer pursuant to this Agreement are
not excused by any circumstance, happening or event, and without limiting Bruce
Power's rights under Article 2.0, neither Party shall be held responsible or liable, either
directly or indirectly, or be deemed in default or in breach of this Agreement for any
loss, damage, detention, delay, failure or inability to meet any of its commitments
hereunder caused by or arising from any cause which is unavoidable or beyond its
reasonable control, including without limitation war, hostilities, invasion, insurrection,
riot, the order of, the action or the failure to act by, any competent civil government
(including the Government of Canada, or any provincial or local government thereof
or any statutory tribunal of competent jurisdiction), explosion, fire, strikes, lockouts or
labour disputes and the time or times provided for hereunder for performance by both
parties shall be extended for a period equivalent to the time any such cause was
preventing performance together with any further extension of time as the parties may
mutually agree upon.
14.2 If either Party is unable to perform its obligations hereunder due to a force majeure
cause, it shall so notify the other Party in writing, stating the cause and shall use its best
endeavor to remove such cause provided, however, that neither Party shall be obligated
to resolve or terminate any disagreement with third parties including labour disputes
except under conditions acceptable to it or pursuant to the final decision of any
arbitral, judicial or statutory agency having jurisdiction to finally resolve the
disagreement.
26
ARTICLE 15.0
APPROVALS
15.1 The parties hereto acknowledge and agree that each Party will obtain all necessary
federal, provincial, municipal or other governmental or administrative approvals for all
aspects of its own works.
2
ARTICLE 16.0
CONTACTS
16.1 Any formal notice required by this Agreement shall be deemed properly given if either
faxed with confirming receipt from recipient, sent by registered mail, or delivered as
follows:
(i) on behalf of Customer to:
Steelback Brewery Inc.
88 Farrell Drive
Tiverton, Ontario
NOG 2T0
Attention: President
Fax No.: (519) 368 -5676
(ii) on behalf of Bruce Power, to:
Bruce Power
P.O. Box 1540, B10
177 Tie Road
Municipality of Kincardine
R.R. #2
Tiverton, Ontario NOG 2T0
Attention: General Counsel
Fax No. (519) 361 -4333
And to:
Attention: Operations Manager — Property Management
Fax No. (519) 361 -1797
Either Party may change its representative specified above by giving written notice
thereof to the other Party.
16.2 Any written correspondence regarding day -to -day activities between Bruce Power and
Customer shall be deemed properly given if either fax, mailed or delivered as follows:
28
(i) on behalf of Customer, to:
Steelback Brewery Inc.
88 Farrell Drive
Tiverton, Ontario
NOG 2T0
Attention: Plant Manager
Fax No.: (519) 368 -5676
(ii) on behalf of Bruce Power, to:
Bruce Power
P.O. Box 1540, B10
177 Tie Road
Municipality of Kincardine
R.R. #2 Tiverton, Ontario
NOG 2T0
Attention: Gary Lee, Operations Section Manager
Fax No.: (519) 361 -5777
16.3 Any verbal correspondence regarding the day -to -day activities between Bruce Power
and Customer shall be:
• 1st — Gary Lee, Chief Engineer, Production /Supervisor (telephone number 361 -2673
ext. 5558), or alternatively,
• 2nd — Duty Shift, Boilers and Systems Supervisor (telephone number 361 -2673
Ext. 4551) .
• Steelback Plant Manager (telephone number 519- 368 -3663 ext.243)
16.4 Any day -to -day verbal communication regarding the day -to -day activities will be
between Bruce Power and Customer. The sewage Operating Authority (the
operational agent for Bruce Power) will be Todd Davis, Cluster Manager, Owen Sound
Hub, Ontario Clean Water Agency, PO Box 760, Anglesia St. N, Southhampton, ON.,
NOH 2L0 (Telephone No.: 519- 797 -2561 ext. 224; Fax No.: 519- 797 -3080; E -mail:
tdavis @ocwa.com).
29
ARTICLE 17.0
PUBLIC NOTICES
17.1 The Customer shall jointly plan and co- ordinate with Bruce Power any public notices,
press releases, and any other publicity of Customer concerning this Agreement and
Customer shall not act in this regard without the prior approval of Bruce Power, unless
such disclosure is required to meet timely disclosure obligations of any Party under
Applicable Laws and stock exchange rules in circumstances where prior consultation
with Bruce Power is not practicable and a copy of such disclosure is provided to Bruce
Power at such time as it is made to the regulatory authority. Bruce Power shall have
the right to make such press releases, without consultation or approval of the
Customer, which Bruce Power deems in its sole discretion as are required by it. This
provision shall survive expiry of the Term for a period of two years.
as
ARTICLE 18.0
SUCCESSORS AND ASSIGNS
18.1 This Agreement shall extend to, be binding upon and enure to the benefit of
Bruce Power and of Customer and their respective successors and permitted assigns
(including any successor by reason of amalgamation of any Party).
18.2 Customer may not assign this Agreement or any rights or obligations under this
Agreement without the prior written consent of Bruce Power, which consent shall be in
the sole and unfettered discretion of Bruce Power and may be unreasonably withheld.
18.3 For greater certainty, Bruce Power may assign its rights or obligations under this
Agreement to any third party including the Municipality of Kincardine at any time
immediately upon written notice to the Customer.
ARTICLE 19.0
ENTIRE AGREEMENT
19.1 This Agreement, the Schedules attached hereto, and the agreements and other
documents required to be delivered pursuant to this Agreement, if any, constitute the
entire agreement between the Bruce Power and Customer and sets out all the
covenants, promises, warranties, representations, conditions, understandings and
agreements between Bruce Power and Customer pertaining to the subject matter of
this Agreement and supersede all prior agreements, understandings, negotiations
and discussions, whether oral or written between the Parties with respect thereto and
sets forth the entire, complete and exclusive understanding between the Parties
relating to the subject matter hereof. There are no covenants, promises, warranties,
representations, conditions, understandings or other agreements, oral or written,
express, implied or collateral between the Parties in connection with the subject matter
of this Agreement except as specifically set forth in this Agreement and any document
required to be delivered pursuant to this Agreement. Neither this Agreement nor any
provision hereof is intended to confer upon any person other than the Parties any
benefits or any rights or remedies hereunder. The execution of this Agreement by the
Parties has not been induced by, nor do either of the Parties rely upon or regard as
material, any representations, writings covenants, promises, warranties, conditions,
understandings and agreements whatsoever not incorporated herein and made part
hereof.
ARTICLE 20.0
APPLICABLE LAW
20.1 This Agreement shall for all purposes be construed and interpreted according to the
laws in force in the Province of Ontario.
ARTICLE 21.0
AMENDMENTS
21.1 No amendment, supplement, modification or waiver or termination of this Agreement
and, unless otherwise specified, no consent or approval by any Party, shall be binding
unless executed in writing by the Party to be bound thereby.
ARTICLE 22.0
CONFIDENTIALITY
22.1
(a) Except as authorized in writing by the owner, or as contemplated herein, each Party
shall keep confidential all proprietary and confidential information of the other made
available to it as a result of this Agreement, whether or not marked as such, including,
without limitation, all unpublished business and technical information, papers, or
records, however produced. These obligations of confidentiality shall survive
completion and /or termination of this Agreement.
(b) Notwithstanding Section 22.1(a), each Party to disclose confidential information of the
other party where: (a) it discloses such to a court or arbitrator which has jurisdiction in
a particular legal claim, dispute or order, (b) it discloses such to business entities that
are parent companies or subsidiaries of it or any such parent company or an affiliated
company of any of the foregoing ( "Group "); (c) it discloses such to any of its directors,
officers, employees, agents and professional advisors of it or of its Group or of a third
party who have a commercially legitimate need -to -know and agree in writing to
maintain confidentiality; (d) it received that information independently; or (e) the
information becomes public through no breach of this Agreement.
ARTICLE 23
EXECUTION AND DELIVERY
23.1 This Agreement may be executed by the Parties in counterparts and may be executed
and delivered by facsimile and all such counterparts and facsimiles shall together
constitute one and the same agreement.
ARTICLE 24
SEVERABILITY
24.1 Each of the provisions contained in this Agreement are distinct and severable and a
declaration of invalidity or unenforceability of any such provision or part thereof by a
court of competent jurisdiction shall not affect the validity or enforceability of any
other provision of this Agreement. To the extent permitted by Applicable Law, the
Parties waive any provision of Applicable Law that renders any provision of this
Agreement invalid or unenforceable in any respect. The Parties shall engage in good
faith negotiations to replace any provision which is declared invalid or unenforceable
with a valid and enforceable provision, the economic effect of which comes as close as
possible to that of the invalid or unenforceable provision which it replaces.
33
ARTICLE 25
FURTHER ASSURANCES
25.1 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.
ARTICLE 26
DISPUTE RESOLUTION
26.1 Negotiation. If any dispute between the Parties arises under or in connection with this
Agreement that the contact persons in subsection 16.2 cannot resolve, each of the
contact persons shall promptly advise its senior management, in writing, of such
dispute. Within seven Business Days following delivery of such notice, a senior
manager from each Party shall meet, either in person or by telephone (the "Senior
Conference "), to attempt to resolve the dispute. Each senior manager shall be
prepared to propose a solution to the dispute. If, following the Senior Conference, the
dispute is not resolved, either Party may deliver an Arbitration Request in accordance
with the procedures in this Article. If neither Party delivers an Arbitration Request
within one year following the Senior Conference, the Parties shall be deemed to have
waived their claims as to such matters.
26.2 Binding Arbitration. Any matter in issue between the Parties as to their rights under
this Agreement may be decided by arbitration at the election of either Party; provided,
however, that the Parties have first completed a Senior Conference pursuant to this
Section. To initiate arbitration a Party may deliver a notice of dispute and request for
arbitration (an "Arbitration Request ") to the other Party. Any dispute to be decided by
arbitration will be decided by a single arbitrator appointed by the Parties or, if such
Parties fail to appoint an arbitrator within fifteen (15) days following the receipt of an
Arbitration Request, upon the application of either of the Parties, the arbitrator shall
be appointed by a Judge of the Superior Court of Justice (Ontario) sitting in the
Judicial District of Toronto Region. The arbitrator shall not have any current or past
business or financial relationships with any Party (except prior arbitration). The
arbitrator shall provide each of the Parties an opportunity to be heard and shall
conduct the arbitration hearing in accordance with the provisions of the Arbitration
Act, 1991 (Ontario). Unless otherwise agreed by the Parties, the arbitrator shall render
a decision within ninety (90) days after the end of the arbitration hearing and shall
notify the Parties in writing of such decision and the reasons therefor. The arbitrator
shall be authorized only to interpret and apply the provisions of this Agreement and
shall have no power to modify or change the Agreement in any manner. The decision
34
of the arbitrator shall be conclusive, final and binding upon the Parties. The decision
of the arbitrator may be appealed solely on the grounds that the conduct of the
arbitrator, or the decision itself, violated the provisions of the Arbitration Act, 1991
(Ontario) or solely on a question of law as provided for in the Arbitration Act, 1991
(Ontario). The Arbitration Act, 1991 (Ontario) shall govern the procedures to apply in
the enforcement of any award made. If it is necessary to enforce such award, all costs
of enforcement shall be payable and paid by the Party against whom such award is
enforced. Each Party shall be otherwise responsible for its own costs incurred during
the arbitration process.
26.3 Confidentiality. The arbitration proceedings conducted pursuant hereto shall be
confidential. Neither Party shall disclose or permit the disclosure of any information
about the evidence adduced or the documents produced by any Party in the arbitration
proceedings or about the existence, contents, or results of the arbitration award
without the prior written consent of such other Party except as required by order
during the course of a judicial or regulatory proceeding or as required by a
Governmental Authority, so long as the Party intending to make such disclosure shall
give the other Party prompt notice of the disclosure request to afford the other Party
opportunity to protect its interests.
ARTICLE 27
REMEDIES
27.1 The rights, powers and remedies of Bruce Power provided in this Agreement are in
addition to and in no way limit Bruce Power's rights, powers and remedies available at
law or in equity. Each right, power and remedy of Bruce Power provided herein and
available at law or in equity or in any other agreement shall be separate and in addition
to every other such right, power and remedy. Any one or more rights, remedies and
powers may be exercised by Bruce Power from time to time and no such exercise shall
exhaust all rights, remedies or powers of Bruce Power or preclude Bruce Power from
exercising any one or more of such rights, remedies and powers or any combination
thereof from time to time or simultaneously.
35
IN WITNESS WHEREOF, Bruce Power and Customer have caused this Agreement to
be executed by their duly authorized representatives as of the date first above written.
GR-EttlftEtITETWANO —II' C‹ '
By: �-
Na onathen Sherman
Title; President
BRUCE POWER L.P., by its General Partner,
BRUCE POWER INC.
B OP �' V"
By: BRUCE POWER
Name: Dwight illett LAW DIVISION
Title: Executive Vice President, Corporate Services Approved 5,P
Date 4
By: )1444 �
Name: Brian Armstrong, Q.C.
Title: Executive Vice President and General Counsel
g6
SCHEDULE A
Industrial Water and Sewer Service
SCHEDULE A.1
CONDITIONS OF SERVICE
A1.1 Customer shall abide by all conditions of this Agreement, and all applicable laws,
statutes, ordinances, decrees, rules, regulations, by -laws (including without limitation
Sections 1 and 2 of the Ontario Clean Water Agency Model Sewer Use By -Law as
amended from time to time, copies of which are attached as Schedule A2 hereto and
forming part hereof), legally enforceable policies, codes or guidelines, judicial, arbitral,
administrative, ministerial, departmental or regulatory, judgments, orders, decisions,
directives, rulings or awards, and conditions of any grant of approval, permission,
certification, consent, registration, authority or licence by any court, statutory body,
self - regulatory authority, stock exchange or other Governmental Authority, including
Nuclear Law.
A1.2 The maximum sewage flow and maximum average contracted sewage loading is
specified in Schedule B.
A1.3 Waste Audit Survey
1) A customer which discharges any amount of Subject Pollutant (as defined in
paragraph (ss) of Section 1, Schedule A.2) shall prepare a Waste Audit Survey (Survey)
in the form set out at Schedule G and submit it to Bruce Power with respect to the
premises from which the discharge occurs by no later than 30 days after commencing
discharge.
2) Waste Audit Surveys submitted to Bruce Power shall be approved. If Bruce Power
determines that the Waste Audit Survey does not comply with the requirements of this
Agreement Bruce Power may at its sole discretion refuse or terminate service as the case
maybe.
3)
3.1) The Waste Audit Survey shall be in the form designated by Bruce Power attached
as Schedule G here in.and may change from time to time.
3.2) In addition to any other matter or requirement designated by Bruce Power, and not
withstanding subsection 3.3 of Section A1.3 Schedule A each Survey shall include the
following:
3.2.1) A description of the processes at the premises which use or produce Subject
Pollutants;
�3�
3.2.2) A map indicating locations of Subject Pollutants present at the premises at any
stage of the operations of the premises, including storage inside, outside, above ground
and below ground
3.2.3) The type and / or description of storage container(s) each Subject Pollutant is
contained in;
3.2.4) A complete list of all Subject Pollutants used or produced on the premises;
3.2.5) A description setting out the types, quantities and concentrations of all Subject
Pollutants discharged, directly or indirectly, to a sewer;
3.2.6) A copy of the Certificate of Approval or Provisional Certificate of Approval and
any Amendments (if applicable)
3.2.7) Small quantity generator number (if applicable)
3.2.8) A description of current waste reduction, recycling, waste treatment and
pollution prevention activities with respect to sewer discharge at the premises;
3.2.9) A declaration from an authorized person that the content of the plan is, to the
best of that person's knowledge, true, accurate and complete.
3.3) Bruce Power may designate a different form for the Waste Audit Survey with
respect to any Customer.
3.4) In the event that the activity or business of the Customer which discharges any
amount of a Subject Pollutant which commenced business operations prior to January
1, 2010, shall prepare a Waste Audit Survey and submit it to Bruce Power by no later
than June 30, 2010.
3.5) Any Customer discharging any amount of a Subject Pollutant, which commences
business operations after Jan 1, 2010, shall have 30 days from the date of
commencement of its business operations to prepare a Waste Audit Survey and submit
it to Bruce Power.
3.6) At all times after the dates specified in subsections 3.1, 3.4 and 3.5 of Section 1.3
Schedule A, every Customer discharging a Subject Pollutant shall have a Waste Audit
Survey that has been approved by Bruce Power.
3.7) In the event that the Customer submitting a Waste Audit Survey, is not sent
written notice from Bruce Power that the Survey is not approved by Bruce Power
within 90 days of the Customer delivering the survey to Bruce Power, the survey shall
be deemed to have been approved by Bruce Power.
3.8) Where the Customer receives notice from Bruce Power that it's Waste Audit
Survey has not been approved, the Customer shall have 90 days to amend and resubmit
it's survey to Bruce Power for approval in accordance to this Agreement
3.9) In the event that a Waste Audit Survey resubmitted to Bruce Power in accordance
with subsection 3.8) of this Agreement continues to fail to comply with the
requirements of this Agreement, Bruce Power shall so notify the Customer and the
38
Customer shall be in contravention of subsection 3(1) of this Agreement and shall
continue to be in contravention of this Agreement until such time as Bruce Power
approves of an amended Waste Audit Survey resubmitted by the Customer, in
accordance with this Agreement.
3.10) The Customer discharging a Subject Pollutant shall submit a revised and updated
Waste Audit Survey for the approval of Bruce Power at least once every two years from
the date which the original survey was required to be submitted.
3.11) Bruce Power may designate to the Customer a date with respect to which they
shall be required to submit to Bruce Power a Waste Audit Survey.
3.12) Bruce Power may designate any matter as a Subject Pollutant and may designate a
date with respect to which any Customer discharging such Subject Pollutant shall be
required to submit to Bruce Power a Waste Audit Survey.
3.13) A copy of the Waste Audit Survey shall be kept at all times at the Customer's
premises in respect to which it was prepared and shall be available for inspection by
Bruce Power at any time.
3.14) The Customer shall provide written notification to Bruce Power of any change to
the information required under 3(1).
S9
SCHEDULE A.2
SEWAGE QUALITY REQUIREMENTS
as per the Provincial Model Bylaw
SECTION 1
DEFINITIONS
1. In this by -law:
(a) "acute hazardous waste chemical" means a material which is an acute
hazardous waste chemical within the meaning of Ontario Regulation 309 made
under the Environmental Protection Act (Ontario);
(b) "authorized representative of the owner or operator" means
(i) A principal executive officer of at least the level of vice president, if the
owner or operator is a corporation; or
(ii) A general partner or proprietor if the owner or operator is a partnership
or proprietorship, respectively; or
(iii) A duly authorized representative of the individual designated above if
such representative is responsible for the overall operation of the
facilities from which the sewage discharge originates;
(c) "biochemical oxygen demand" means carbonaceous oxygen demand
(biochemical) as determined by Method 507 in Standard Methods when an
inhibiting chemical has been added to prevent ammonia oxidation;
(d) "blowdown" means the discharge of recirculating noncontact cooling water for
the purpose of discharging materials contained in the water, the further buildup
of which would cause concentrations in amounts exceeding limits established by
best engineering practices;
(e) "combined sewer" means a sewer intended to function simultaneously as a
storm sewer and a sanitary sewer;
(f) "commercial waste chemical" means a material which is a commercial waste
chemical within the meaning of Ontario Regulation 309 made under the
Environmental Protection Act. (Ontario);
(g) "composite sample" means a sample which is composed of a series of grab
samples taken at intervals during the sampling period;
(h) "cyanide (total)" means cyanide as determined by Methods 412B plus one of
Method 412C or 412D in Standard Methods;
4G
(i) "de minimis dose" means a dose of radiation to an individual of .05 millisieverts
per year;
(j) "de minimis waste" means any waste radioactive material that will not result in
a dose of radiation exceeding the de minimis dose regardless of the quantity of
the material or how it is used or managed;
(k) "fuels" includes (i) any ignitable liquid intended for use as a fuel with a flash
point less than 61 °Celsius as determined by one of the methods in Ontario
Regulation 309 made under the Environmental Protection Act (Ontario) and (ii)
gasoline, naptha, diesel fuel or fuel oil;
(1) "grab sample" is an aliquot of the flow being sampled taken at one particular
time and place;
(m) "hauled sewage" means waste removed from cesspool, a septic tank system, a
privy vault or privy pit, a chemical toilet, a sewage holding tank or any other
sewage system of a type regulated under Part VII of the Environmental
Protection Act (Ontario);
(n) "hazardous industrial waste" means a material which is a hazardous industrial
waste within the meaning of Ontario Regulation 309 made under the
Environmental Protection Act (Ontario);
(0) "hazardous waste chemical" means a material which is a hazardous waste
chemical within the meaning of Ontario Regulation 309 made under the
Environmental Protection Act (Ontario);
(p) "ignitable waste" means a material which is an ignitable waste within the
meaning of Ontario Regulation 309 made under the Environmental Protection
Act (Ontario);
(q) "industrial" shall mean of or pertaining to industry, manufacturing, commerce,
trade, business, or institutions as distinguished from domestic or residential;
(r) "industrial process area" means any industrial building, property or land area
which during manufacturing, processing or storage comes into direct contact
with any raw material, intermediate product, finished product, byproduct, or
waste product;
(s) "Kjeldahl Nitrogen" means organic nitrogen as determined by one of Method
420A or 420B in Standard Methods;
(t) "matter" includes any solid, liquid or gas;
(u) "municipality" means The Corporation of the Municipality of
Kincardine or its designated representative;
41-
(v) "noncontact cooling water" means water which is used to reduce temperature
for the purpose of cooling and which does not come into direct contact with any
raw material, intermediate product other than heat, or finished product;
(w) "once - through cooling water" means noncontact cooling water that has been
circulated once through the cooling device;
(x) "owner" or "operator" means the owner or operator of any facility or activity
subject to the provisions of this by -law;
(y) "pathological waste" means a material which is a pathological waste within the
meaning of Ontario Regulation 309 made under the Environmental Protection
Act. (Ontario) or any material which may be designated in writing by the Chief
Medical Officer of Health (Ontario);
(z) "PCB" means any monochlorinated or poly- chlorinated biphenyl or any mixture
of these or mixture that contains one or more of them;
(aa) "PCB waste" means a PCB waste within the meaning of Ontario Regulation
148/86 made under the Environmental Protection Act (Ontario);
(bb) "person" includes an individual, association, partnership, corporation,
municipality, Provincial or Federal Agency, or an agent or employee thereof;
(cc) "pesticides" means a pesticide regulated under the Pesticides Act (Ontario);
(dd) "Ph" means the logarithm to the base 10 of the reciprocal of the concentration
of hydrogen ions in moles per litre of solution;
(ee) "phenolic compounds" means those derivatives of aromatic hydrocarbons
which have a hydroxyl group directly attached to the ring as determined by one
of Method S10B or 510C in Standard Methods;
(ff) "phosphorus" means total phosphorus as determined by both Method 424C
plus one of Method 424D, 424E, 424F, or 424G in Standard Methods;
(gg) "reactive waste" means a material which is a reactive waste within the meaning
of Ontario Regulation 309 made under the Environmental Protection Act
(Ontario);
(hh) "sanitary sewer" means a sewer for the collection and transmission of domestic,
commercial, institutional and industrial sewage or any combination thereof;
(ii) "severely toxic material" means any material listed in Schedule 3 of Ontario
Regulation 309 made under the Environmental Protection Act (Ontario);
(jj) "sewage" means any liquid waste containing animal, vegetable or mineral
matter in solution or in suspension, except uncontaminated water;
(kk) "sewage works" means any works for the collection, transmission, treatment or
disposal of sewage, or any part of such works;
42
(11) "SIC code" means Standard Industrial Classification Code contained in either
the Standard Industrial Classification Manual published by the Minister of
Supply and Services Canada, 1980 (Canadian SIC) or the Standard Industrial
Classification Manual published by the Executive Office of the President, Office
of Management and Budget, 1972 (U.S. SIC);
(mm) "solvent extractable matter of animal or vegetable origin" means grease, and oil
as determined by one of Methods 503A, 503B, 503C, or 503D in Standard
Methods:
(nn) "solvent extractable matter of mineral or synthetic origin" means grease and oil
as determined by Method 503B in Standard Methods;
(oo) "Standard Methods" means a procedure set out in Standard Methods for the
Examination of Water and Wastewater published jointly by the American
Public Health Association, American Water Works Association and Water
Pollution Control Federation, 16th Edition (1985), current at the date of testing,
or a procedure published by the Ontario Ministry of the Environment as a
standard method or the equivalent of a standard method;
(pp) "storm sewer" means a sewer for the collection and transmission of
uncontaminated water, stormwater, drainage from land or from a watercourse
or any combination thereof:
(rr) " stormwater" means water from rainfall or other natural precipitation or from
the melting of snow or ice;
(ss) "subject pollutant" means any liquid or solid that contains any of the
substances listed in Schedule A2 of this Agreement that is discharged or could
be discharged or could be discharged to the sewer or combined sewer.
(tt) "'suspended solids" means solid matter in or on a liquid which matter is
removable by filtering and dried at 103 - 105 °C as determined by Method 209C
in Standard Methods;
(uu) "uncontaminated water" means water to which no matter has been added as a
consequence of its use, or to modify its use, by any person;
(vv) "waste disposal site leachate" means leachate from any waste disposal site; and
(ww) "waste radioactive materials" means any waste material exhibiting the property
of spontaneous disintegration of atomic nuclei usually with the emission of
penetrating radiation or particles.
43
SECTION 2
DISCHARGES TO SANITARY SEWERS
DISCHARGES TO COMBINED SEWERS
2 (1) No person shall discharge or deposit or cause or permit the discharge or deposit of
matter of a kind listed below into or in land drainage works, private branch drains or
connections to any sanitary sewer or combined sewer:
1. matter of any type or at any temperature or in any quantity which may be or
may become a health or safety hazard to a sewage works employee, or which
may be or may become harmful to a sewage works, or which may cause the
sewage works effluent to contravene any requirement by or under the Ontario
Water Resources Act or the Environmental Protection Act (Ontario), or which
may cause the sludge from sewage works to fail to meet the criteria relating to
contaminants for spreading the sludge on agricultural lands under Ontario's
Guidelines for Sewage Sludge Utilization on Agricultural Lands (as revised
January, 1986) unless the person has been advised in writing by the operator of
the sewage treatment works that the sludge from the sewage treatment works
will never be used on agricultural lands, or which may interfere with the proper
operation of a sewage works, or which is or may result in a hazard to any
person, animal, property or vegetation and;
2. without limiting the generality of the foregoing, any of the following:
(a) Solid or viscous substances in quantities or of such size as to be capable
of causing obstruction to the flow in a sewer, including but not limited
to ashes, bones, cinders, sand, mud, straw, shavings, metal, glass, rags,
feathers, tar, plastics, wood, underground garbage, animal guts or
tissues, paunch manure, and whole blood.
(b) Sewage that may cause an offensive odour to emanate from a sewage
works, and without limiting the generality of the foregoing, sewage
containing hydrogen sulphide, carbon disulphide, other reduced sulphur
compounds, amines or ammonia in such quantity that may cause an
offensive odour.
(c) Except in the case of discharge into a combined sewer, stormwater,
water from drainage of roofs or land, water from a watercourse or
uncontaminated water.
(d) Water other than stormwater that has originated from a source separate
from the water distribution system of the municipality.
(e) Sewage or uncontaminated water at a temperature greater than 65
degrees Celsius.
(f) Sewage having a Ph less than 5.5 or greater than 9.5.
44
(g) Sewage containing more than 15 milligrams per litre of solvent
extractable matter of mineral or synthetic origin.
(h) Sewage containing more than 150 milligrams per litre of solvent
extractable matter of animal or vegetable origin.
(i) Sewage in which the biochemical oxygen demand exceeds 300
milligrams per litre.
(j) Sewage containing more than 300 milligrams per litre of suspended
solids.
(k) Sewage containing more than 10 milligrams per litre of phosphorus.
(1) Sewage containing more than 100 milligrams per litre of Kjeldahl
nitrogen.
(m) Sewage containing more than 1 milligram per litre of phenolic
compounds.
(n) Sewage which consists of two or more separate liquid layers.
(o) Sewage containing dyes or colouring materials which pass through a
sewage works and discolour the sewage works effluent.
(p) Sewage containing any of the following in excess of the indicated
concentrations;
1500 milligrams /litre
Chlorides expressed as Cl
Sulphates expressed as SO4
50 milligrams /litre
Aluminum expressed as Al
Iron expressed as Fe
10 milliqrams /litre
Fluorides expressed as F
5 milligrams /litre
Antimony expressed as Sb
Bismuth expressed as Bi
Chromium expressed as Cr
Cobalt expressed as Co
Lead expressed as Pb
Manganese expressed as Mn
Molybdenum expressed as Mo
Selenium expressed as Se
Silver expressed as Ag
Tin expressed as Sn
45
Titanium expressed as Ti
Vanadium expressed as V
3 milligrams /litre
Copper expressed as Cu
Nickel expressed as Ni
Zinc expressed as Zn
2 milligrams /litre
Cyanide (total) expressed as CN
1 milligram /litre :
Arsenic expressed as
Cadmium expressed as Cd
0.1 milligrams /litre
Mercury expressed as Hg
(q) The following materials or sewage containing any of the following in
any amount;
Fuels
PCBs
Pesticides
Severely Toxic Materials
Waste Radioactive Materials
(r) The following materials or sewage containing any of the following in
any amount;
Hauled Sewage
Waste Disposal Site Leachate
(s) The following hazardous wastes in any amount;
Acute Hazardous Waste Chemicals
Hazardous Industrial Wastes
Hazardous Waste Chemicals
Ignitable Wastes
Pathological Wastes
PCB Wastes
Reactive Wastes
46
(2) In determining whether the limit with respect to any matter prescribed in subsection
2(1) is contravened, the volume of any water that has been added for the purpose of
enabling the limit to be met and of any storm sewer discharges to a combined sewer
shall be disregarded for the purposes of calculating whether the limit has been met so
that compliance with the limit cannot be attained by dilution.
3 - Compliance Program
3.1) The Customer may submit to Bruce Power a proposed compliance program setting out
activities to be undertaken by the Customer that would result in the prevention or reduction
and control of the discharge or deposit of matter from the Customer's premises into municipal
or private sewer connections to any sanitary or combined sewer.
3.2) The Customer may submit to Bruce Power a proposed compliance program setting out
activities to be undertaken by the Customer that would result in the prevention or reduction
and control of the discharge or deposit of uncontaminated water, groundwater or storm water
from the Customer's premises to eliminate the discharge of matter into municipal or private
sewer connections.
3.3) Upon receipt of an application pursuant to subsections (1) and (2) above, Bruce Power
may issue an approval for a compliance program for the Customer to discharge an effluent
that does not comply with limits specified in this Agreement such approval to be in accordance
with guidelines therefore adopted by Bruce Power from time to time. The Customer shall be
entitled to make non - complying discharges in the amount and only to the extent set out in
Bruce Power's approval during the planning, design, and construction or installation of
facilities or works needed to implement the approved compliance program.
3.4) Every proposed compliance program shall be for a specified length of time during which
treatment facilities are to be installed, and shall be specific as to the remedial action to be
implemented by the industry, the dates of commencement and completion of the activity, and
the materials or other characteristics of the matter to which it relates. The final activity
completion date shall not be later than the final compliance date in the compliance program.
3.5) When a compliance program has been issued to a Customer they shall submit a
compliance program progress report to Bruce Power within 14 days after the scheduled
completion date of each activity listed in the compliance program.
3.6) Bruce Power may terminate any proposed compliance program by written notification at
any time to the Customer in the event that the industry fails or neglects to carry out or
diligently pursue the activities required of it under its approved compliance program.
3.7) Bruce Power is authorized to execute agreements with Customers with respect to
approved compliance programs which agreements may, in accordance with guidelines adopted
by Bruce Power from time to time, include a provision for a reduction in the payment
otherwise required from the Customer to Bruce Power pursuant to an Industrial Waste
47.
Surcharge Agreement. The reduction in payment to Bruce Power may be in such an amount
and for such duration as the agreement may specify.
3.8) Bruce Power may terminate any approved compliance program agreement entered into
pursuant to section 5(5) by written notice at any time to the Customer in the event that the
Customer fails or neglects to carry out or diligently pursue the activities required of it under its
approved compliance program, and in the event of such termination, the Customer shall pay
to Bruce Power the full difference in amount between what it was required to pay to Bruce
Power pursuant to the Industrial Waste Surcharge Agreement, and the amount actually paid to
Bruce Power as a result of having entered into an agreement with respect to the approved
compliance program.
4- Sampling and Analytical Requirements
4.1) The sampling and analysis required by this Agreement shall be carried out in accordance
with the procedures, modified or unmodified, as described in Standard Methods or the
"Guidance Document for the Sampling and Analysis of Wastewater for the 1999 Model Sewer
Use By- law ", or analytical methods adopted by Bruce Power.
4.2) Compliance or non - compliance with this Agreement may be determined by the analysis of
a grab sample or a composite sample done in accordance with subsection 6(1), may contain
additives for its preservation and may be collected manually or by using automatic sampling
device.
4.3) Where there is no maintenance access hole, Bruce Power may by written notice to the
Customer, make use of an alternate device or facility for the purpose of sampling a discharge
to the sewage works
4.4) If the Customer is given written approval from Bruce Power to perform discharger self
monitoring the following will apply:
4.4.1) The Customer shall complete, any monitoring or sampling of any
discharge to a sewage works, as required by Bruce Power, and provide the
results to Bruce Power in accordance with written notification from Bruce
Power; and
4.4.2) The obligations set out in or arising out of 6(3) shall be completed at the
expense of the Customer unless Bruce Power has agreed in writing to share the
expense with the Customer.
4.5) Bruce Power is authorized to execute agreements the Customer with respect to approved
compliance programs or Industrial Waste Surcharge Agreement which agreements may, in
accordance with guidelines adopted by Bruce Power from time to time, include a provision for
routine sampling and reporting on chemical parameters listed in the agreement.
48
4.6)The obligations set out in or arising out of 5(7) shall be completed at the expense of the
Customer unless Bruce Power has agreed in writing to share the expense with the Customer.
5 - ENFORCEMENT
5.1 Penalty - for contravention
Any person other than a corporation who contravenes any section of this agreement may be
liable for a penalty of no more than $10,000.00 for a first offence and not more than
$25,000.00 for any subsequent offence under this Agreement.
5.2 Fine - for contravention - corporation
Notwithstanding any other provision of this Agreement, a Customer in contravention of this
Agreement is liable for a penalty of not more than $50,000.00 for a first offence and not more
than $100,000.00 for any subsequent offences.
49
SCHEDULE B
CONTRACTED QUANTITIES
Maximum Sewer Flow
Daily: 200m Hydraulic Loading
300 mg /1 Concentration
Up to a Max BOD Loading of 280 Kg/week
Up to a Max BOD Loading of 1240 Kg /Month
Maximum Average Sewer Loading
On average, "biochemical oxygen demand" and "suspended solids" no higher than
300 milligrams per litre.
Note:
1. Additional quantities, at Bruce Power's discretion, may be supplied to
Customer if available.
2. The maximum sewage loading for the average quality is less than the maximum
allowable limit under Article B3.
3. For the purpose of the determining the average sewage loading (strength), the
arithmetic mean will be calculated of at least 2 samples taken during the same
calendar month. CABL may request additional samples to be taken at its
expense that may be included in the arithmetic mean to determine average
sewage loading.
4. For the purpose of determining the Basic Sewer Service quantity a calculation
from the Industrial Water total quantity may be used.
Ea
Schedule C
SEWER SERVICE RATES
C1.1 The current rates for the supply of Sewer Service shall be as set forth.
The rate for sewage treatment service for the year 2010 and 2011 shall be:
BASIC Sewer Service
2010 and 2011: $1.523 per m
In December of each of 2011 and 2012 the rates will be adjusted (with adjusted
rates commencing as of January of the following year), in accordance with
annual increases or decreases in the Statistics Canada Consumer Price Index
(Ontario All Items)with October 2010 as the base.
Customer's sewer above contracted maximum flow or average loading
(a) i) If the weekly or monthly average "Biochemical Oxygen Demand" Loadings
is higher than those set in Schedule B and /or "suspended solids" is higher
than 300 milligrams per litre, there will be additional charge(s) equal to an
increasing multiple of the Basic Sewer Service rate as follows:
BOD or Suspended Solids Range
Surcharge Factor
301 - 350 =X25%
351- 400 =X50%
401 - 500 = X 200%
501 - 600 = X 250%
Customer shall not exceed the above limits at any time
ii) If the Hydraulic Loading daily average for the billing period is higher than
the limit set out in Schedule B, the charge(s) for Basic Sewer Service shall be
proportionately increased to reflect such higher than average Hydraulic
Loading amounts (for example, if the Hydraulic Loading daily average for
the billing period is 10% higher than the limit set out in Schedule B, the
charge(s) for Basic Sewer Service shall increase by 10% for that billing
period).
(b) All above charges would be additive.
(c) Collection of additional charges would not preclude Bruce Power from
exercising its rights to interrupt Service and this right may be exercised if
Customer's effluent exceeds either the Quality Requirements per Schedule A2 or
the Contracted Quantities per Schedule B. Above average quantities could only
b4
be tolerated for limited durations, if at all, as determined by Bruce Power or its
agents.
(d) Ninety (90) days before the end of the Term, Bruce Power will provide BEC
DBL with Basic Sewer Service Rates for the Renewal Term (if any). If Bruce
Power fails to do so, the Basic Sewer Service Rates applicable to the Term will
apply to the Renewal Term (if any).
(e) Without prejudice to any of Bruce Power's other rights, if any of the limitations
outlined in Schedule A.2 are exceeded, the Basic Sewer Service rates charged to
Customer will be increased in proportion to the amount of excess until
contractual compliance is obtained or resumed. For example, exceeding limit(s)
by ten percent will result in a ten percent increase in the rate for BASIC Sewer
Service.
(f) In addition to the forgoing Industrial Waste Surcharge Agreements may be
granted at the sole discretion of Bruce Power on a case by case basis; and
1) Bruce Power may consider an agreement with respect to the discharge of the
following treatable parameters in sewage:
1.1) BOD
1.2) Total phosphorus
1.3) Total suspended solids
1.4) Total Kjeldahl Nitrogen
2) At Bruce Power's discretion an agreement may be for a limited period of time
or one -time discharge;
3) Bruce Power will require laboratory analysis of subject waste to be received
by Bruce Power before any such agreement can be entered into;
4) Agreements entered into by Bruce Power may be terminated by Bruce Power
by written notice at any time where there is an emergency situation of
immediate threat or danger to any person, property, plant or animal life, water
or sewage works; or
4.1) If subject waste exceeds initial parameter limits set out in the original
Industrial Waste Surcharge Agreement on subsequent sampling and lab
analysis; or
4.2) At the discretion of Bruce Power for any reason
62
SCHEDULE D
INDUSTRIAL WATER SERVICE
Contracted Quantities
Water Supply
Daily: Up to 400 m /day *1
Emergency Water Supply
Fire Protection: Up to 7000 1 /min for 2 hours "2
Note:
*1 Additional quantities may be supplied to Customer if available as describe in
Article 3.
"2 The fire protection supply is the total amount available to all BEC customers
and is not offered exclusively to any one customer.
In the event Bruce Power interrupts the supply of Water as provided for in
Article 6.0 of the Agreement or reduces the volume of Water supplied,
Bruce Power will endeavor to supply Emergency Water as required.
63
SCHEDULE E
WATER RATES
E.1 The rates for Water and Emergency Water for the year 2010 and 2011 shall be those set
forth below.
Water
2010 and 2011 $0.2463 per m 3
Emergency Water Meter Service
2010 and 2011 $351.94 /month
In December of each of 2011 and 2012 the rates will be adjusted (with adjusted rates
commencing as of January of the following year), in accordance with annual increases
or decreases in the Statistics Canada Consumer Price Index (Ontario All Items)with
October 2010 as the base.
64
SCHEDULE F
Technical Conditions of
Industrial Water and Sewer Service
F1 Terminal Point and Scope of Supply
The Terminal point will be at the Terminal Isolation Valves at a location determined
by Bruce Power (normally Customer Lot line).
Customer must supply all materials on Customer's side of the Terminal point.
F.2 Design Criteria
Customer's Sewer Equipment shall be designed to ensure that effluent discharged to the
sewer is within the quality and quantity limits specified in this Agreement.
Customer's Water Equipment shall be designed to be capable of withstanding water
pressures of up to 690 Kpa (100 pounds per square inch gauge).
Watermains shall conform to AWWA standards as applicable.
Customer's processes must be designed to accept occasional interruptions.
F.3 Terminal Isolation Valves
The Terminal Isolation Valves will normally be as close as possible to Customer's lot
line. If Terminal Isolation Valves are located inside Customer's property, Customer
shall provided Bruce Power with an easement or easements to allow Bruce Power
access to maintain Bruce Power Equipment and the Meters (subject to subsection 7.1
(c) herein).
. b5
Schedule "G"
WASTE AUDIT SURVEY FORM
The completed Waste Audit Survey is to be forwarded to:
Bruce Power
Attention: Bill Jackson, Operations Manager — Property Management
PO Box 1540 B10 02W
Tiverton, ON
NOG 2T0
Please type or print clearly when completing this form.
1 Name of Company
2 Address of Company
3 Owner of Property (if different from Company listed above)
Phone:
Fax:
4 General Site Operation Information
Number of Employees involved in:
Plant: Office: Other: Total:
Number of shifts per day: Number of operating days per week:
5 Brief Description of Product / Service / Company Activity
Include North American Industry Classification System (NAICS) number. If
you do not know this already, you can search the Government Website
below to get your appropriate code.
http : / /www.statcan.ca/english/Subj ects /Standard /naics /2002 /naics02-
index.htm
6 Brief Description of the Processes at the premises which use or
produce subject pollutants.
Include characteristics such as Batch (how many per time period), Continuous, or Both
(explanation to be provided), Seasonal Production
Cycles, Specific Clean -up Periods and Clean -up Activities
7 Average Daily Water Use and Sources
Industrial Water Supply Yes / No m3 /day Estimated or
Measured
Surface Water* * Yes / No m3 /day Estimated or Measured
Groundwater* Yes / No m3 /Day Estimated or Measured
Other Sources ** Yes / No m3 /day Estimated or Measured
If flow rate varies significantly provide peak flow rates per day and month
and explanation.
* Provide copy of the Permit to Take Water (as required by the OWRA).
* * If `Yes' — provide explanation as an attachment
bT
8 `Are there' or Will there be' any of the following wastewater discharges
from the description as provided? If yes for any, please provide
a brief description and volume.
Process Wastewater Yes / No m3 /day
Cooling Water Yes / No m3 /day
Other Sources of Wastewater (other than sanitary) Yes / No m3 /day
9 Known characteristics of Discharges
Provide existing data on quality of the discharges listed above
Parameter or By -law Average Significant Additional
Condition* Limit Concentration Variation Information
(mg /L) or Range (Yes or No) and Attached
(in mg /L) Reason for the (Yes or No)
Variations
pH level* 6.0 to
10.5
Two or more One
layers*
Temperature* 600C
B.O.D. 300
PCB's 0.0001
Total Suspended 350
Solids
Total Phosphorus 10
Total Kjeldahl 100
Nitrogen
Solvent 15
Extractables — Oil
& Grease (Mineral)
Solvent 150
Extractables — Oil
& Grease
(Vegetable /Animal)
Total Cyanide 2
b8
Total Aluminium 50
Total Antimony 5
Total Arsenic 1
Cadmium 2
(hexavalent)
Total Cadmium 0.7
Total Chromium 2
Total Cobalt 5
Total Copper 2
Total Lead 1
Total Manganese 5
Total Mercury 0.01
Total Molybdenum 5
Total Nickel 2
Total Selenium 1
Total Silver 5
Total Tin 5
Total Titanium 5
Total Zinc 2
Phenolics (4AAP) 1.0
Chloroform 0.04
1,4 — 0.47
Dichloromethane
Methyl Chloride 0.2
Methylene choride 0.21
1,1,2,2- 1.4
Tetrachlorethane
69
Tetrachloroethylene 0.05
Trichloroethylene 0.07
Benzene 0.1
Ethylbenzene 0.16
1,2- 0.05
dichlorobenzene
1,4- 0.08
dichlorobenzene
Fluoride 10
Toluene 0.016
o- Xylene 0.52
10 Locations of Subject Pollutants, present at premises at any stage of the operations of
the premises, including storage inside, outside, above ground and below ground
Location of Process Units Inside / Outside / Outside but covered
Above Ground / Below Ground
Storage of Raw Materials Inside / Outside / Outside but covered
Above Ground / Below Ground
Storage of Intermediate Products Inside / Outside / Outside but covered
Above Ground / Below Ground
Storage of Final Products Inside / Outside / Outside but covered
Above Ground / Below Ground
11 Complete List of All Subject Type and/or description of storage
Pollutants Used or Produced on container(s) each subject pollutant is
Premises. Please use map or physical contained in. (Attach additional sheet(s)
layout to indicate locations of of paper if necessary).
Subject Pollutants.
64
12 Physical Layout
• Provide sketch of property (to scale or approximate) showing
buildings, pre- treatment works, property boundaries, effluent lines,
and connections to sanitary, combined and storm sewers.
• Please identify sewers as listed on the Parameter Information Form as
completed above.
• Layout may be attached as separate document — leave note to indicate
submission with this form.
• A flow diagram of the site flows /processes is also required
61-
13 List Subject Discharged Discharged Not Discharged to
Pollutants and Directly Indirectly Sewer
Quantity /Concentration To Sewer To Sewer
(Use
additional sheet(s) of
paper if
necessary)
14 Pre - treatment of Discharge Prior to Discharge
Does the site have any pre- treatment systems for process effluents prior to
discharge to the sewer system? Yes / No
If Yes — provide a description of the pre- treatment devices, contaminants
removed, operational procedures for the device and description of process
utilized in the device.
62
15 Does the site have any of the following programs in place to address
discharges to the sewer system?
Pollution Prevention Yes / No Describe
Waste Treatment Yes / No
Best Management Plan Yes / No
Environmental Management System Yes / No
Other Program / Practises Yes / No
16 Do you have a Certificate of Approval or Provisional Certificate of
Approval?
If yes, please attach a copy with this form.
17 Regulation 347 Information
Provide any Generator Registration Numbers that the site holds under the
requirements of Ontario Regulation 347 under the EPA
Date Form Completed:
Name and Title of Company Representative:
Signature of Authorized Company Representative:
63
BRUCE ENERGY CENTRE
WATER TOWER AND SUPPLY PUMPS
JOINT OPERATING SERVICE LEVEL AGREEMENT (SLA)
Prepared by:
Gary Lee
Section Manager, Site Services
Operations
Bruce Power
Reviewed by:
Bill Ja on
Section Manager, Site Services
Bruce Powe
Accepted by: : AA
Ian Kennedy
VP, Site Services Division
Bruce Power
Accepted by:
Chief Administrative Officer
Municipality of Kincardine
TABLE OF CONTENTS
Page
0.0 GENERAL 1
0.1 Parties to the agreement 1
0.2 Commencement Date 1
0.3 Duration of Agreement 1
0.4 Funding of Services Provided 1
0.5 Definitions 1
1.0 STANDARD SERVICES TO BE PROVIDED 2
1.1 Equipment Responsibilities 2
1.2 Response to Alarms 2
1.3 Worker Protection 2
1.4 Documentation Turnover 3
1.5 Communication of Significant Changes 3
1.6 Customer Responsibilities 4
1.7 Service Availability 4
1.8 Places of Service Delivery 4
1.9 Standards of Service Delivery (Quality /Quantity/Timeliness) 5
1.10 Changes to Service Requirements 5
1.11 Customer Initiated Delays 5
2.0 PERFORMANCE, TRACKING, AND REPORTING 5
2.1 Service Delivery Monitoring & Audit Process 5
2.2 Cost Control, Benchmarks, Targets, Metrics and Frequencies 5
2.3 Service Review Meetings 5
3.0 ISSUES MANAGEMENT PROCESS 5
3.1 Issues Identification & Definition 5
3.2 Issues Escalation Process 6
3.3 Communication of Issues Resolution 6
3.4 Change Orders to SLA 6
4.0 REFERNCES 6
4.1 References 6
0.0 GENERAL
This SLA describes the services that are required to be provided between Bruce
Power Site Services Operations Department and Municipality of Kincardine (MoK) in
the operating and maintaining of the BEC (Bruce Energy Centre) water tower and
associated pumps. Filling of the water tower and monitoring of level is performed by
Bruce Power. Distribution of the water is performed by Municipality of Kincardine. This
SLA is designed to clarify the roles and responsibilities for Bruce Power Operations
and Municipality of Kincardine related to this system.
0.1 Parties to the agreement
The agreement is between Bruce Power Site Services Division, specifically Site
Services Operations Department and the Municipality of Kincardine.
0.2 Commencement Date
The SLA will commence on the date of turnover of facilities to the Municipality of
Kincardine.
0.3 Duration of Agreement
The SLA will remain in place until the service is terminated as per the "Sewage
Treatment Plant and Water Tower Assets and Related Easements Transfer
Agreement ".
0.4 Funding of Services Provided
Funding of the operations effort is to be covered by the already assigned O &M funding
for Site Services Operations Department.
0.5 Definitions
MoK - Municipality of Kincardine
O &M — Operations & Maintenance
SLA — This service level agreement
SPOC — Single point of contact
SSOD - Site Services Operations Department
1
1.0 STANDARD SERVICES TO BE PROVIDED
1.1 Equipment Responsibilities
The BEC water tower and auxiliaries within and distribution main system outside the
Bruce Power property line are under the ownership and control of Municipality of
Kincardine.
The BEC water pump house and auxiliaries within and distribution main system inside
the Bruce Power property line are under the ownership and control of Bruce Power.
1.2 Response to Alarms
Scenario 1 - In the case of alarms received by SSOD
BP will respond to alarms and rectify if within their limits to do so. Otherwise, SSOD
will notify Municipality of Kincardine SPOC within 30 minutes of receiving the alarm of
what action is being taken.
Municipality of Kincardine SPOC will acknowledge within 45 minutes from time call
received from SSOD.
MoK will notify SSOD once issue has been resolved.
SSOD will record issues found and actions taken within their SSOD Facilities
Logbook along with time / date and person(s) contacted when they are made aware.
Scenario 2 - In the case of alarms received by MoK
MoK will respond to alarms and rectify if within their limits to do so. Otherwise, MoK
SPOC will notify SSOD SPOC within 30 minutes of receiving the alarm of what action
is being taken.
SSOD SPOC will dispatch an operations person as appropriate within 30 minutes
from time call received from MoK.
SSOD will record issues found and actions taken within their BP Facility Logbook
along with time / date and person(s) contacted when they are made aware.
1.3 Worker Protection
Municipality of Kincardine will apply for an External Condition Guarantee as per Bruce
Power's work protection procedures when de- energization of the of the supply line to
the water tower is required from within Bruce Power's property.
2
1.4 Documentation Turnover
Bruce Power will turnover any associated documents / manuals / flowsheets for
systems outside Bruce Power's boundaries.
1.5 Communication of Significant Changes
Municipality of Kincardine will notify Bruce Power of any significant changes that can
cause an alarm to the system or changes to the monitoring system (eg. Flushing of
fire hydrants, calibration of level indication, higher than normal use by BEC customers,
bypassing of water to the tower, etc.).
Bruce Power will notify Municipality of Kincardine of any changes to the water tower
delivery system that could cause changes to the water levels.
SPOC: Municipality of Kincardine
A/ Emergency Contact
1/ After hours contact number 519 - 396 -1511
2/ Day time contact numbers
Water Services Plant Cell Fax
ORO 396 -4660 389 -7357 396 -4673
On -call Operator 389 -7355
Public Works
Manager 396 -3468 396 -1430
B/ Planning Contacts
1/ Chief Administrative Officer 519- 396 -3018 Office
2/ Manager of Public Works 519- 396 -3468 Office
3/ ORO 519- 396 -4660 Plant
3
SPOC: Bruce Power
A/Emergency Contact
Daytime and after hours contact Boilers & Systems Supervisor (B &SS) @ 519 -361-
4551
B /Planning Contact
Day B &SS @ 519- 361 -2673 ext #16678
Facilities First Line Manager, @ 519- 361 -2673 ext #16839 or 23453
Ops Section Manager, @ 519- 361 -5558
1.6 Customer Responsibilities
The primary customer for services defined by this SLA is the Municipality of
Kincardine with Bruce Power Site Service Operations Department coordinating the
service delivery.
The Municipality of Kincardine is responsible to ensure that Bruce Power has
continuous access to Municipality of Kincardine emergency phone numbers.
The Municipality of Kincardine will ensure that 3 weeks' notice is given to Bruce Power
for planned work activities requiring de- energization & lockout of equipment owned by
Bruce Power to provide Kincardine a safe work area. The Municipality of Kincardine
will establish a Single Point of Contact (SPOC) to act as the interface between
Municipali ty of Kincardine and Bruce Power.
Bruce Power will ensure that 3 weeks' notice is given to the Municipality of Kincardine
for planned work activities requiring de- energization & lockout of equipment owned by
Kincardine to provide Bruce Power a safe work area. Bruce Power will establish a
Single Point of Contact (SPOC) to act as the interface between Municipality of
Kincardine and Bruce Power for operational issues.
1.7 Service Availability
Monitoring of water tower tank levels / alarms and response to alarms is to be
available continuously 24/7.
1.8 Places of Service Delivery
The service will be on the Bruce site.
4
1.9 Standards of Service Delivery (Quality /Quantity/Timeliness)
Operation on site is to be conducted to normal Bruce Power standards. Service is to
support the Municipality of Kincardine.
1.10 Changes to Service Requirements
Changes to service requirements must be agreed by the signatories (delegates) to
this SLA.
1.11 Customer Initiated Delays
The impact of customer delays will be managed so as to protect work program
deliverables through management processes.
2.0 PERFORMANCE, TRACKING, AND REPORTING
2.1 Service Delivery Monitoring & Audit Process
Service delivery will be monitored through a combination of self- assessment and
audit, coordinated where required by the Municipality of Kincardine.
2.2 Cost Control, Benchmarks, Targets, Metrics and Frequencies
Costs for any work will be reported through the normal Bruce Power reporting system.
2.3 Service Review Meetings
This SLA and issues related to the service provision will be reviewed at a regular
meeting arranged Quarterly by the Bruce Power and Municipality of Kincardine.
3.0 ISSUES MANAGEMENT PROCESS
3.1 Issues Identification & Definition
Issues, risks and opportunities related to services will be input into the respective
companies issue tracking systems and communicated to the SPOC of the other
company. The SPOCs will disposition the issues using Commercially Reasonable
Efforts. by the respective SPOCs. .
5
3.2 Issues Escalation Process
Issues that cannot be resolved expeditiously at the working level will be raised to the
Operations Manager — Property at Bruce Power and CAO for MoK for resolution.
3.3 Communication of Issues Resolution
The final outcome of the issue resolution will be communicated to the initial issue
identifier and stakeholders as needed.
3.4 Change Orders to SLA
Changes to this SLA will be made per agreed change management processes and
agreed to by the signatories (delegates) to the SLA.
4.0 REFERNCES
4.1 References
Contract between Bruce Power and Municipality of Kincardine.
6
POST CLOSING AGREEMENT
THIS AGREEMENT for reference purposes is dated as of the 21st day of March, 2012.
BETWEEN:
BRUCE POWER L.P., a limited partnership formed under
the laws of Ontario ( "Bruce Power ")
- and -
THE CORPORATION OF THE MUNICIPALITY OF
KINCARDINE a municipal corporation pursuant to the
laws of Ontario ( "Municipality ")
WHEREAS: Bruce Power and Municipality entered into an agreement dated as of March 21,
2012 that provides for the transfer to Municipality of the Transferred Assets (the "Transfer
Agreement ").
In consideration of and notwithstanding the closing of the Transaction the parties hereto agree as
follows:
1. To complete or undertake, as appropriate and as specified, the matters listed and
assigned to each of them on Schedule "A" attached to and forming part of this Agreement
(collectively, "Post Closing Matters ").
2. In this Agreement capitalized terms not otherwise defined in this Agreement
shall have the meaning given them in the Transfer Agreement and or the Water and Sewage
Service Agreement as the case may be.
3. The obligations of the parties pursuant to this Agreement shall take effect from
and after Closing and only if the Transaction closes.
4. This Agreement shall enure to the benefit of, and be binding upon, Municipality
and Bruce Power and their respective successors and permitted assigns.
[Balance of this page intentionally left blank]
T951056\TOR_LAW\ 7811379 \5
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5. This Agreement may be executed and delivered by the parties in one or more
counterparts, each of which will be an original, and each of which may be delivered by
facsimile, e-mail or other functionally equivalent electronic means of transmission and all of
such counterparts, when taken together, shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be signed by their
respective duly authorized officers as of the date first written above.
BRUCE POWER L.P., by its general THE CORPORATION OF THE
partner BRUCE POWER I MUNIC ALITY 7 NCARDINE
By: � By:
Duncan Hawthorne Larry Kraemer
Chief Exelutive Of cer Mayor
By: 1C4ii-t w.tl By:
Brian G. Armstrong Q.C. Murray Clarke
Executive Vice President and General Chief Administrative Officer
Counsel
BRUCE POWER
LAW DIVISION
Approved Li
Date / .I f.
T951056 \TOR_LAW\ 7811379 \5
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SCHEDULE "A"
POST CLOSING MATTERS
1. Sewage Treatment Plant Amendment of Certificate of Approval
(a) Bruce Power will use Commercially Reasonable Efforts to support the
Municipality to amend the Certificate of Approval ( "C of A ") issued for the
Sewage Treatment Plant so that the term "the Owner" used Paragraphs (1), (2),
(3) and (7) of Part II, Section 10.1 of the C of A amendment is replaced with the
words "Bruce Power ".
(b) From the Closing Date to the date the amended C of A referred to in section
1.1(a) of this Schedule is issued, the parties agree that the term "the Owner" used
in Paragraphs (1), (2), (3) and (7) of Part II, Section 10.1 of current the C of A
shall be read as "Bruce Power" it being the intention of the parties that Bruce
Power shall remain responsible for the obligations of the owner provided in
Paragraphs (1), (2), (3) and (7) of Part II, Section 10.1 of current the C of A.
2. Hydro Meter Accounts
Bruce Power will arrange to have the following hydro meter accounts transferred to
Municipality.
Account Number Description Location
03200 -64006 Greenfield Sewage Meter Farrell Drive
99
28220 -12093 BEC Sewage Plant 1842 Concession 2
53200 -86007 Water Tower Sign Lighting 4th Concession lot D
59400 -85008 Water Tower 4th Concession lot D
71990 -07592 BEC Street Lighting 4th Concession lot PTC
78390 -52002 BEC Street Lighting 4th Concession lot B
3. Purchasing and Procurement By -law
T951056 \T0R LAW\ 7811379 \5
{
- 4 -
3.1 Municipality will change its Purchasing and Procurement By -law to note
obligations to LIUNA and UA pursuant to the agreements with LIUNA and UA that are
attached to the Transfer Agreement.
3.2 In connection with the Municipality changing its Purchasing and Procurement By-
law to note obligations to LIUNA and UA pursuant to the agreements with LIUNA and
UA that are attached to the Transfer Agreement, Bruce Power will support Municipality
with the wording of the documentation.
4. Bruce Energy Centre Customers Billing Information
To the extent not done prior to Closing, Bruce Power will turn over to Municipality
billing information for Bruce Energy Centre customers.
5. Terminal Valve and Metering Installation Reimbursement
Bruce Power shall reimburse Municipality re the terminal valve and metering installation
in accordance with section 7.1 of the Water and Sewage Service Agreement made
between the parties to this Agreement as of the Date of this Agreement.
6. General
Each party will:
6.1 diligently pursue the completion of the Post Closing Matters for which it is
responsible and shall keep the other party reasonably apprised of its progress in that
regard; and
6.2 co- operate with the other to the extent reasonably necessary for the other party to
complete its Post Closing Matters.
T951056 \TOR_LA W\ 7811379 \5