Loading...
HomeMy WebLinkAbout13 022 SP Armow Wind Ontario LP Memorandum of Understanding THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE �urca Ke BY-LAW NO. 2013 - 022 BEING A BY -LAW TO AUTHORIZE THE SIGNING OF A MEMORANDUM OF UNDERSTANDING WITH SP ARMOW WIND ONTARIO LP WHEREAS Sections 8 (1) and 9 of the Municipal Act, 2001, S.O. 2001, c. 25, as amended, provide that the powers of a municipality under this or any other Act shall be interpreted broadly so as to confer broad authority on the municipality to • enable the municipality to govern its affairs as it considers appropriate and to enhance the municipality's ability to respond to municipal issues and has the capacity, rights, powers and privileges of a natural person for the purpose of exercising its authority under this or any other Act; AND WHEREAS the Council of The Corporation of the Municipality of Kincardine deems it advisable to enter into a Memorandum of Understanding with SP Armow Wind Ontario LP; NOW THEREFORE the Council of The Corporation of the Municipality of Kincardine ENACTS as follows: 1. That The Corporation of the Municipality of Kincardine enter into a Memorandum of Understanding with SP Armow Wind Ontario LP. 2. That the Mayor and Chief Administrative Officer be authorized and directed to execute, on behalf of The Corporation of the Municipality of Kincardine, the Memorandum of Understanding with SP Armow Wind Ontario LP, attached hereto as Schedule "A" and forming part of this By -law. • 3. That this By -law shall come into full force and effect upon its final passage. 4. This By -law may be cited as the "SP Armow Wind Ontario LP Memorandum of Understanding ". READ a FIRST and SECOND TIME this 20'" day of February, 2013. !/ SP • % `tom- V>ro.,QIt. ay•r Clerk RE ' i THIRD TIME and Fl ALLY PASSED this 20th day of February, 2013. 45 ayor Clerk • MEMORANDUM OF UNDERSTANDING This MEMORANDUM OF UNDERSTANDING ( "Memorandum ") is hereby made and entered as of k_b 20 , 2013 by and between: SP ARMOW WIND ONTARIO LP, by its general partner SP Armow Wind Ontario GP Inc. (the "Developer ") - and — THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE (the "Municipality") WITNESSES THAT WHEREAS the Developer is seeking to develop, construct and operate a 180 megawatt wind energy electricity generation project (the "Project ") within the geographic boundaries of the Municipality of Kincardine in accordance with the permitting requirements, public and First Nations consultation processes, sound regulations, safety requirements and other requirements set forth pursuant to the Green Energy Act (Ontario), including without limitation 0. Reg. 359/09 (the "REA Regulations "), and other applicable legislation; AND WHEREAS the Municipality has implemented Policy No. PD.1.9 (Wind Generation System Development Policy) adopted April 13, 2011 (the "Policy ") to provide direction for the development of wind generation systems which the Developer acknowledges having received and reviewed; AND WHEREAS the Developer is seeking to design the Project to be in substantial and satisfactory compliance with the Policy; AND WHEREAS the Developer estimates that assuming the Project is built to the expected maximum capacity of 180 megawatts, the Project will contribute approximately $450,000.00 per annum in local property taxes, representing in excess of $9,000,000.00 in direct tax revenue available to the community over the 20 -year term of the power purchase agreement; AND WHEREAS in addition to the aforementioned tax revenue, the Developer is undertaking to make financial contributions to the economic growth of the communities under the jurisdiction of the Municipality, including the establishment of a community development fund to sponsor local community projects, donate to local charity initiatives and contribute to the betterment of the communities; AND WHEREAS both the Developer and the Municipality wish to enter into a general development agreement (the "Development Agreement ") and a road use agreement (the "RUA ") in order to better protect the safety and well -being of its residents, to ensure substantial compliance with the Policy and to set out the respective rights and obligations of the Developer and the Municipality in connection with the development of the Project substantially on the terms and conditions set forth in this Memorandum. NOW THEREFORE in consideration of the covenants and obligations set forth herein, the Developer and the Municipality hereby agree to the following terms and conditions with respect to the Development Agreement to be entered into between the Developer and the Municipality: 1. Development Agreement 1.1. The Developer and the Municipality agree to use best efforts to enter into the Development Agreement, with a target of completing the agreement on or before August 31, 2013. This Development Agreement will incorporate the terms and conditions expressly set forth in this Memorandum and, in the absence of this Memorandum addressing any necessary provisions, on terms and conditions mutually satisfactory to the Developer and the Municipality, each party acting reasonably with regard to generally accepted terms and conditions in agreements of the same scope and nature as the Development Agreement. Each of the Developer and the Municipality agrees that it shall, and it shall cause its affiliates to, negotiate in good faith in connection with the finalization of the Development Agreement. 1.2. The Development Agreement shall include provisions addressing the following concepts, each as further negotiated between the Developer and the Municipality: I.Z.I. Municipal Road Use: The Municipality and the Developer will make best efforts to enter into the RUA concurrently with the execution of the Development Agreement, which shall (i) include provisions with respect to grading, haul routes during construction, insurance, liability, and appropriate construction security, including security for road maintenance and repair, and (ii) address, to the reasonable satisfaction of the Municipality's Public Works Director, the installation and locations in which the Developer is permitted to, install, maintain and operate electrical, or any other utilities or infrastructure over, across, along, within or under certain road allowances. The RUA will include a maintenance and repair component which obligates the Developer to pay the cost for the repair of any damage or degradation to municipal roads caused by construction or other vehicles associated with the construction of the Project. As part of the RUA, the pre - construction phase baseline conditions of municipal roads to be used as haul routes will be documented to provide a basis for determining the need for and extent of repair required. 1.2.2. Community Development Fund: The Developer shall agree to make a financial contribution to the Municipality of a defined sum in type, form and substance, to be agreed to between the Developer and the Municipality, each acting reasonably, to be used to establish a distinct fund dedicated to the funding of community betterment projects in priority policy areas of health, education, culture and the environment (the "Community Development Fund "). The Municipality shall have the right to allocate the Community Development Fund within the agreed policy areas through an open and publically transparent allocation process. The Developer shall have the right to promote its role in funding the Community Development Fund and to review and provide comments on the areas of allocation and expenditure of such contributions in advance of allocation decisions. It is understood that any amounts to be paid by the Developer to the Municipality under the Community Development Fund in any given year shall be reduced, based on an agreed upon formula, to take into account any additional payments, made by the Developer to the Municipality for any permitting fees, operating levies, or other similar municipal fees imposed by the Municipality or any entity within the control of the Municipality other than those specified in section 1.4 of this Agreement. 1.2.3. Decommissioning: The Developer shall agree to prepare for the review of the Municipality a plan for decommissioning with respect to the Project in form and substance to be provided by the Developer, and agreed to by the Municipality, acting reasonably, provided that the decommissioning plan must conform to the requirements of the decommissioning report to be submitted by the Developer in connection with the REA Regulations. The Development Agreement will provide a mechanism for adequate review and comment by the Municipality with respect to such decommissioning plan, together with an obligation for the Developer to consider and make best efforts to address and incorporate such comments of the Municipality. 1.2.4. Construction Plan: Prior to site preparation and construction of the Project, or any part thereof, the Developer shall provide to the Municipality a construction plan or plans, in a form to, the reasonable satisfaction of the Municipality, which shall, amongst other items, include: a summary of all material construction activities and works to be undertaken prior to and during construction; a grading plan; the proposed layout and design of the electrical distribution system,; the specific location, with GPS co- ordinates, of all Turbines; the proposed location of private access roads; and the haul route to be used during construction. 1.2.5. Operation and Maintenance: The Developer shall agree to ensure that the Project is continuously operated in accordance with applicable laws and regulations and shall provide to the Municipality prior to issuance of any building permits for the Project, plans/reports setting out in reasonable detail the Developer's plans for the safe operation and maintenance of the Project including an emergency response plan for the Project. The specific requirements of the Operations and Maintenance Plan/Emergency Response Plan, and procedures /notice requirements related to amending these Plans based on operational experience, shall be identified in the Development Agreement. 1.2.6. Tree Preservation. The Developer shall agree, to the extent commercially reasonable, to minimize the cutting, trimming or removal of trees in connection with the construction and operation of the Project. In the event the Developer requires that any trees be removed, it shall provide a Tree Preservation/Replacement Plan, to the reasonable satisfaction of the Municipality in advance of site preparation and construction. The specific requirements of the Tree Preservation/Replacement Plan shall be identified in the Master Development Agreement. 1.2.7. Securities: The Development Agreement shall include reasonable provisions for appropriate securities for the Project in favor of the Municipality including, but not limited to, securities to cover identified potential costs to the Municipality in the event of failure by the Developer to perform its obligations with respect to the construction phase of the Project. 1.2.8. Liability and Insurance: The Developer shall indemnify and hold harmless the Municipality from and against all claims, liabilities, losses, costs, damages or other expenses of every kind that the Municipality may incur or suffer as a consequence of personal injury, including death, and property damages arising out of the negligent performance of any works and activities, the willful misconduct of the Developer or those for whom it is in law responsible in connection with the development and construction of the Project on lands and premises owned by the Municipality. In addition, the Development Agreement shall require the Developer to purchase and maintain Commercial General Liability insurance and such other insurance coverages which are typical and reasonable for renewable energy projects of the same scope and nature as the Project, in a form satisfactory to the Municipality and with a minimum coverage per occurrence to be agreed to with the Municipality, in each case, acting reasonably. 1.2.9. Compliance with Municipal By -laws: The Developer agrees that it will comply with all valid and applicable Municipal by -laws in the construction, maintenance and operation of the Project, to the extent that such by -laws comply with applicable and governing laws, provided that the Developer reserves its rights to appeal or challenge the validity of any such Municipal by -law in accordance with applicable laws. 1.3. The Municipality agrees that the only provisions of the Policy which are required to be addressed in the Development Agreement or any other permit, approval, consent or agreement between the Municipality and the Developer with respect to the Project are the provisions of the Policy which are directly addressed in this Memorandum. The Municipality acknowledges and agrees that, provided the provisions of this Memorandum are complied with, the Developer shall be deemed to be in substantial and satisfactory compliance with Policy. The foregoing is without prejudice to the right of the Municipality to submit specific comments to the Ministry of the Environment with respect to the Project in the municipal consultation form pursuant to the Renewable Energy Approval process. 1.4 The Developer shall agree to pay all applicable application fees, including the Council- approved Building Permit Fee, to cover municipal costs for related to the Project including: administrative, reasonable legal, engineering and other consulting fees incurred for the review of municipal applications and review /preparation of any agreements with the developer, and inspection costs, all of which the Municipality acknowledges and agrees shall not exceed the costs and fees as set forth in the attached Schedule "1" to this Memorandum, subject only to standard increases to address inflation and any coverage of any specific reasonable costs recoverable under 18 of the Building Code Act. 1.5 The Developer agrees that it shall reimburse the reasonable costs and expenses of the Municipality for an independent peer review of the Developer's noise report for the Project, subject to agreement between the Developer and the Municipality on reasonable terms and conditions in respect of such review, including but not limited to the identity and qualifications of the reviewing party, the terms of reference for such review and terms and conditions governing the Developer's review, discussion, and written response to the draft report following such review prior to completion and release thereof. 2. Airport Policy The Developer covenants that the Project's wind turbines will not be located within the area outlined in Appendix A — Airport Vicinity Mapping behind By -Law 2003 -25 Comprehensive Zoning Bylaw. 3. Lighting Scheme Subject to the terms of this paragraph, the Developer shall not erect, locate, relocate, or otherwise place any permanent sign, light or light standard on any part of the Project's infrastructure unless the sign, light or light standard has been approved by the Municipality. Any site illumination in connection with the Project shall be designed to minimize the spread of light into adjacent properties, while maintaining the safety and security of the infrastructure and personnel and includes lighting for maintenance at the transformers. The terns of this paragraph do not apply to any temporary or construction signs or lights or any navigational lighting or marking requirements that may be imposed by Transport Canada, NAV Canada, or similar federal or provincial agencies, however, such lights and their operation shall, to the extent allowed under such requirements and to the extent that relevant third parties agree to cooperate, will be synchronized with each other and also with lights in adjacent projects to minimize the light impact at ground level. 4. Project Setback and Siting Requirements. The Developer covenants that the Project's wind turbines will be located at least 3,000 metres from Primary Urban and Secondary Urban Communities (Kincardine, Tiverton and the Lake Shore), as defined in the Policy. In addition to meeting these siting requirements, the Developer covenants that it will design, construct and operate the Project in compliance with any applicable REA Regulations, such compliance to be determined by the Ministry of the Environment, and subject to section 1.3 hereof, will make commercially reasonable efforts to comply with all other Site Guidelines set out in section 4 of the Policy. 5. Collector Lines Subject to Section 41 of the Electricity Act (Ontario), the Developer confirms that all low- voltage collector lines located on private property and municipal roads carrying electricity from the Project's wind turbines shall be located underground, unless the Developer can demonstrate to the reasonable satisfaction of the Municipality that it is not feasible to construct such lines underground, giving consideration to safety, space limitations, existing or anticipated rights of way or easements, streams, trees, wetland, controlled land, current infrastructure and future municipal developments, as mutually determined by the Developer and the Municipality, acting reasonably. The Developer shall work with the Municipality in considering the design and location of the Project's lines, including the burial thereof. 6. Complaint Resolution Process The Developer Agrees to develop and fully implement a written protocol which establishes a communication and feedback process to receive and address comments, suggestions and complaints by any residents of the Municipality during the construction and operation of the Project. The Municipality shall be given an opportunity to provide comments on a draft version of this protocol prior to implementation. 7. Miscellaneous 7.1 This Memorandum does not create a partnership, joint venture or relationship of trust or agency between the Developer and the Municipality. 7.2 It shall be a condition of the obligations of each of the parties hereunder that provided that the other party is in material compliance with all of its covenants and obligations hereunder, each party shall act in good faith and in reasonable cooperation with the other in connection with the development and construction of the Project and not adopt any position or take any action which is materially inconsistent with the spirit and intent of this Memorandum. The foregoing is without prejudice to the right of the Municipality to submit specific comments to the Ministry of the Environment with respect to the Project in the municipal consultation form pursuant to the Renewable Energy Approval process. 7.3 This Memorandum may be executed in any number of counterparts and by each of the Parties in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same instrument. 7.4 This Memorandum is intended to be a binding legal agreement, subject only to the terms and conditions set forth herein. This Memorandum shall be governed by, and construed, interpreted and enforced in accordance with the laws of the Province of Ontario and the laws of Canada in force therein. Except as provided herein, each party irrevocably submits and attoms to the non- exclusive jurisdiction of the courts of Ontario with respect to any matter arising under this Memorandum or related to this Memorandum. 7.5 This Memorandum shall be binding upon and enure to the benefit of the parties hereto and their respective successors and assigns. 7.6 The Municipality acknowledges that the Project is a renewable energy undertaking for the purposes of Section 62.0.2 of the Planning Act (R.S.O. 1990, Chapter P.13). EXECUTED AND DATED as of the date first written above. SP ARMOW WIND ONTARIO LP, by THE CORPORATION OF THE its general partner SP ARMOW WIND MUNICIPALITY OF KINCARDINE ONTARIO GP INC. By: By: ;�-- Name: all kJ ebb tRwS Name: Larry Kra Jam Title: - Ect s G By: e: 1 -Y9- Name: Tack Name: Murray Clarke -c Title: Director Title: Chief Administrative Officer