HomeMy WebLinkAbout20 143 Transfer Easement (EPCOR Natural Gas Limited Partnership) Agreement By-law
THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE
BY-LAW
No. 2020 - 143
BEING A BY-LAW TO AUTHORIZE THE EXECUTION
OF THE TRANSFER EASEMENT AGREEMENTS IN FAVOUR OF
3>1=@ </BC@/: 5/A :7;7B32 >/@B<3@A67> d3>1=@e
=D3@ :/<2A 23A1@7032 7< A1632C:3 d1e =4 B67A 0G-LAW
WHEREAS section 11(2) of Municipal Act, 2001, S.O. 2001, c.25, as amended,
allows a municipality to pass by-laws respecting matters within specific spheres of
jurisdiction, including matters relating to public utilities;
AND WHEREAS the Corporation of the Municipality of Kincardine is the registered
\\d\[R_ \\S aUR YN\[Q` QR`P_VORQ V\[ DPURQbYR i5j# ORV\[T \]N_a \\S B;@!`" ***()-0056 (LT),
33312-0048 (LT), 33309-0226 (LT), 33309-0261 (LT), 33309-0270 (LT), 33309-
0417 (LT), 33309-0426 (LT), 33307-0076 (LT), 33307-0124 (LT), 33293-0634 (LT),
33293-0188 (LT) and 33293-0133 (LT).
AND WHEREAS the Municipality deems it desirable to provide easements to
EPCOR for a natural gas pipe line over and/or under the lands described in
DPURQbYR i5j which are owned by the Municipality and agrees to the terms and
conditions on which the Grants of Easement are being made.
NOW THEREFORE, the Council of the Municipality of Kincardine hereby ENACTS
as follows:
1. That easements be granted for the purposes of a natural gas pipeline in
favour of EPCOR Natural Gas Limited Partnership on the terms and
conditions set out in the form of the Easement Agreements attached hereto
N` DPURQbYR i3j N\[Q DPURQbYR i4j, as applicable, for the lands listed in
DPURQbYR i5j%
2. That the Mayor and CAO are hereby authorized to execute the form of
7N`RZR\[a 3T_RRZR\[a` NaaNPURQ UR_Ra\\ N` DPURQbYR i3j N\[Q DPURQbYR i4j,
as applicable, S\\_ aUR YN\[Q` YV`aRQ V\[ DPURQbYR i5j and any other
documentation necessary to effect the registration of the Easements in the
Land Registry Office.
3. That the Mayor and CAO are hereby authorized to make minor changes to
the Easement Agreements referred to in paragraphs 1 and 2 above prior to
signing, if deemed necessary.
4. This By-Law shall come into force and take effect on the date it is passed.
5. This By-YNd ZNf OR PVaRQ N` aUR iE_N\[`SR_ 7N`RZR\[a !7B5AC @Nab_NY 9N`
Limited Partnership) Agreement By-YNdj%
Page 2 of 2
Transfer Easement (EPCOR Natural Gas Limited Partnership) Agreement, By-law
By-law No. 2020 - 143
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READ a FIRST and SECOND TIME this 9 day of November, 2020.
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READ a THIRD TIME and FINALLY PASSED this 9 day of November, 2020.
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Mayor Clerk
Jennifer White
From: Lisa Ambeau
Sent: October 21, 2022 330 PM
To: Jennifer White
Subject: FW: Municipality of Kincardine - Easement Agreements - EPCOR - Our file reference:
2021-19962
Attachments: A & D re Transfer Easement re PIN 33312-0048 (with Transfer Easement attached -
need to insert Schedule).pdf; 3R-10580 Epcor.pdf; A & D re Transfer Easement re PIN
33307-0076 (with Transfer Easement attached - need to insert Schedule).pdf; 3R-10572
Epcor.pdf;A & D re Transfer Easement re PIN 33307-0124 (with Transfer Easement
attached - need to insert Schedule).pdf; EPCOR Sketch re PIN 33312-0056.pdf; EPCOR
Sketch re PIN 33312-0063.pdf; EPCOR Sketch re PIN 33312-0254.pdf; 33312-0056 -
Parcel Register (Oct. 3.2022).pdf; Property Index Map - 33312-0056 (zoom out).pdf;
Property Index Map - 33312-0056.pdf; R112100_112100 - Tax Arrears Certificate.pdf;
33312-0063 - Parcel Register (Oct. 3.2022).pdf; Property Index Map - PIN 33312-0063
(Zoom out).pdf; Property Index Map - PIN 33312-0063.pdf; R293649_293649 Transfer
Easement.pdf; 3R5815_R5815.pdf; 33312-0254 - Parcel Register(Oct. 3.2022).pdf;
Property Index Map - 33312-0254 (zoom out).pdf; Property Index Map -
33312-0254.pdf; LT283_T283 Order in Council.pdf; LT45932_T45932 Transfer, include
Restrictive Covenants.pdf; 3R7165_R7165.pdf
Lisa Ambeau
Executive Assistant Infrastructure and Development
Municipality of Kincardine
1475 Concession 5
Kincardine, ON N2Z 2X6
Ph: 519-396-3468 ext. 7121
Fax: 519-396-1430
Please visit http://www.kincardine.ca
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From: Becky Beal <bbeal@rossfirm.com>
Sent: October 20, 2022 12:41 PM
To:Adam Weishar<aweishar@kincardine.ca>
Cc: Lisa Ambeau <lambeau@kincardine.ca>; Tammy Grove-McClement<tgrove@rossfirm.com>; Alex Bondarenko
<abondarenko@rossfirm.com>; Monica Poremba <mporemba@rossfirm.com>; Municipal <Municipal@rossfirm.com>
Subject: Municipality of Kincardine - Easement Agreements- EPCOR -Our file reference: 2021-19962
1
CAUTION:This email originated from outside your organization. Exercise caution when opening attachments or clicking �
links, especially from unknown senders.
Hello Adam,
We have reviewed this file to determine where things stand and steps to take moving forward.
There have been two reference plans registered setting out the easement lands for three of the properties.
We have drafted the Transfer Easement documents and are attaching same for you to review. You will find attached
the following materials:
Parcel 33312-0048
1. A& D re Transfer Easement re PIN 33312-0048
2. Reference Plan 3R-10580 (The Transfer Easement lands are shown as Part 1 on this Plan)
We will require that you provide the fully signed Pipeline Easement Agreement for this property. It is my understanding
that Lisa Ambeau would be able to assist in this regard. I have included her in this email. The signed Agreement will
form part of the registration and will be required before we can proceed.
Parcel 33307-0076
3. A& D re Transfer Easement re PIN 33307-0076
4. Reference Plan 3R-10572 (The Transfer Easement lands are shown as Part 1 on this Plan)
Again, we will require that you provide the fully signed Pipeline Easement Agreement for this property.
Parcel 33307-0124
5. A& D re Transfer Easement re PIN 33307-00124
The Transfer Easement lands for this property is shown on Part 2, Plan 3R-10572. Again, we will require that you
provide the fully signed Pipeline Easement Agreement for this property.
At this point, it would be beneficial to receive all signed Pipeline Easement Agreements and we confirm that same will
not be released or provided to Epcor until such a time as we are prepared to register the easements on title.
Once we have the signed Agreements available to enter as Schedules to the Transfer Easements,we will provide
Acknowledgement and Direction documents to Epcor for signing. Upon receipt of all signed Acknowledgement and
Directions we will be able to proceed with those three Transfer Easement registrations on title to those lands.
Further,there were communications in August about Epcor requiring additional easement lands. At the time, sketches
for two PINs were provided to you. (Parcel 33312-0056 and 33312-0063). I believe that Epcor requested an additional
property (Parcel 33312-0254) and I'm unsure if you were provided the sketch or not. It is attached for your reference
along with the other sketches from Epcor.
Attached:
6. Sketch from EPCOR re 33312-0056
7. Sketch from EPCOR re 33312-0063
8. Sketch from EPCOR re 33312-0254
We have conducted subsearches of these lands so that it will assist you with determining the suitability of these areas
proposed which are set out below:
1.Parcel Register—33312-0056 and Block Map (see attached)
� Property is registered in the name of The Corporation of the Municipality of Kincardine
z
' There is a Notice registered as Instrument No. R112100 on 1974/02/06. This is a tax arrears certificate. This
Notice does not impact the easement.
2.Parcel Register—33312-0063 and Block Map (see attached)
➢ Property is registered in the name of:
o The Corporation of the Town of Kincardine
o The Corporation of the Municipality of Kincardine
We will need to prepare and register and Application to Change Name.
There is a Transfer Easement registered on 1993/03/05 in favour of SVCA as Instrument No. R293649. This
easement relates to construction of erosion control works and permanent maintenance of the site-this
easement appears to impact the proposed easement location.
We have attached Easement R293649 together with Reference Plan 3R-5815. The relevant part on this Plan is
part 21.
3.Parcel Register—33312-0254 and Block Map(see attached)
> Property is registered in the name of The Corporation of the Municipality of Kincardine
Of note,the following are registered on title and copies of the documents are attached:
• LT283 is an Order in Council registered Feb. 20, 1974; and
• LT45932Z—Restrictive Covenants registered at the time of Transfer on June 29, 2000
With respect to this property, we will need to see a draft reference plan or drawings that reveal exact location
on 3R-7165 attached confirming the specific location before we can determine if there are any issues.
Tammy had reached out to Epcor to request that they provide you with specifics/drawings regarding those proposed
additional easements. We have sent a further request to Epcor to produce those to you, as you mentioned during your
meeting with Tammy that you had not received anything.
Moving forward with these properties, assuming no issues for Kincardine, we will want Epcor to provide separate
Easement Agreements for these lands as well so that we will be prepared to register on title once reference plans are
com plete.
We look forward to hearing from you. Please advise of any questions or concerns.
Kind Regards,
Becky Beal x727
Municipal Clerk
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144 Courthouse Sq. 20ti Ontario J!. 943 Queen St. �i-1246B Goderich St. 1?17 2ND Avenue E. 1 1 Durham St. E..
Suits 100 Su��te 101 Suite 203 Box 880
Goderich ON Stratford ON Kincardine ON �orf Elgin ON Owen Sound OGi Walkerton ON
MA 1 M9 N5A 3H4 N2Z 2Y2 NOH 2C3 N4K ti`✓4 NOG 2V0
519.524.5532 519.814.5532 226.53''.9700 226.256.7977 519.470.6060 519.881.3230
Fax: 51 v.524.3438
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Kind Regards,
Becky Beal x727
Municipal Clerk
Please always use "Reply All"when responding to emails from our office.
To promote health and wellbeing, The Ross Firm initiated a 4-day work week. As such, I am not in the office
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GODERICH STRATFORD KINCARDINE PORT ELGIN OWEN SOUND WALKERTON
144 Courthovse Sq. 206 Ontario �t. 943 �uean St. �1-�2468 Godarich St. '?i� 2ND avenue�. 1 � Durh�m �*. �.
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Jennifer White
From: Tammy Grove-McClement <tammygm@walkertonlaw.ca>
Sent: June 22, 2021 1221 PM
To: Jennifer White; Anne Emke
Cc: Jennifer Lawrie; Adam Weishar
Subject: RE: Kincardine and EPCOR - File No. 19962
Importance: High
Hi Jennifer,
Please hold the Agreements and do not insert any dates until I tell you they can be released. I will be discussing this
with Adam tomorrow and speaking to EPCOR's legal counsel. (FYI in this case the Agreement date would be the date
the Agreements are signed by the Mayor and CAO and not the date of the Bylaw however we may be holding off
inserting a date until the reference plans are deposited and the descriptions inputted which will be in a couple of
weeks).
Rega rds,
Tammy
Tammy W.Grove-McClement
Grove-McClement& Fischer LLP
Barristers& Solicitors
www.walkertonlaw.ca
P.O. Box 880, 11 Durham Street E
Walkerton, Ontario NOG 2V0
TeL• �19-881-3230 I Fax: �19-881-3�9�
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From:Jennifer White<jwhite@kincardine.ca>
Sent:June 22, 2021 12:12 PM
To:Anne Emke<anne@walkertonlaw.ca>
Cc:Tammy Grove-McClement<tammygm@walkertonlaw.ca>;Jennifer Lawrie <jlawrie@kincardine.ca>
Subject: Kincardine and EPCOR- File No. 19962
1
Hi Anne,
We have the agreements all signed now for the EPCOR Easements, but I have two questions:
1) At the top of each agreement is THIS AGREEMENT made the _day of , 2021.
Our practice has been to make this date,the day the by-law passed, as that is when Council authorized making the
agreement. In this case, it would be November 9, 2020. We aren't sure if this is the requirement, or a legacy practice.
What is the date which should be used for this part of the agreement?And without all four parties resigning this, how
would we make the change to 2020 if needed?
2) I understand that we are sending EPCOR an electronic copy of the signed agreement when it's done. Does your
office need anything further?
Thanks
Jennifer White
Deputy Clerk
Municipality of Kincardine
1475 Concession 5
Kincardine, ON N2Z 2X6
Ph: 519-396-3468 ext. 7113
Fax: 519-396-8288
Please visit www.kincardine.ca
The information contained in this message is intended only for the person(s) named above and may not be otherwise
distributed, copied or disclosed.The message may contain privileged, confidential or personal information which is
subject to the provisions of the Municipal Freedom of Information and Protection and Privacy Act. If you have received
this message in error, please notify the sender immediately and delete the message without making a copy.Thank you.
Please consider the environment before printing this email.
z
Jennifer White
From: Jennifer White
Sent: June 22, 2021 12:12 PM
To: anne@walkertonlaw.ca
Cc: tammygm@walkertonlaw.ca;Jennifer Lawrie
Subject: Kincardine and EPCOR - File No. 19962
Hi Anne,
We have the agreements all signed now for the EPCOR Easements, but I have two questions:
1) At the top of each agreement is THIS AGREEMENT made the _day of , 2021.
Our practice has been to make this date,the day the by-law passed, as that is when Council authorized making the
agreement. In this case, it would be November 9, 2020. We aren't sure if this is the requirement, or a legacy practice.
What is the date which should be used for this part of the agreement?And without all four parties resigning this, how
would we make the change to 2020 if needed?
2) I understand that we are sending EPCOR an electronic copy of the signed agreement when it's done. Does your
office need anything further?
Thanks
Jennifer White
Deputy Clerk
Municipality of Kincardine
1475 Concession 5
Kincardine, ON N2Z 2X6
Ph: 519-396-3468 ext. 7113
Fax: 519-396-8288
Please visit www.kincardine.ca
i
Jennifer White
From: Tammy Grove-McClement <tgrove@rossfirm.com>
Sent: October 4, 2021 226 PM
To: Jennifer White
Cc: Jennifer Lawrie;Adam Weishar; Anne Emke; Charlene McNaughton
Subject: RE: Kincardine and EPCOR - File No. 19962
Hi Jennifer,
I confirm they are still on hold.
Regards,
Tammy
Tammy W. Grove-McClement
Partner/Lawyer
Email:t�rove@rossfirm.com
Phone: 519-881-3230
•
�
PRC? FESSIONAL CORPQRATION
�
P R O F E S S I O N A � C O R P O R A T I Q N
GODERICH STRATFORD KINCARDINE PORT ELGIN OWEN SOUND WA'.
144 Courthouse Sq. 206 Ontario St. 943 Q�een St. 1246 Goderich St. 1717 2ND Avenue E. 1 1 Du
Suite 100 Suite 101 Kincardine ON Unit l, Box 1259 Suite 203 Walk
Goderich ON Stratford ON Port Elgin ON Owen Sound ON
N7A 1M9 NSA 3H4 N2Z 2Y2 NOH 2C0 N4K bV4 Nt
P: 519.524.5532 P: 519.814.5532 P: 226.532.9700 P: 226.256.7977 P: 519.470.6060 P: 51'
F: 51 9.524.8438
Toll Free: 888.567.4917
www.rossfirm.com
WARNING -CONFIDENTIALITY NOTICE
This e-mail message and any attachments thereto are intended solely for the use of the individual or entity to whom it is addressed and contains information that
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error,please notify the se�der immediately by return email and delete the message unread without making any copies.Thank you.
1
Note: The health and safety of our staff, clients and visitors is our top priority. We kindly ask that
you do not come into our office if you are experiencing flu-like symptoms; you have recently
travelled to any location that has an active travel advisory related to COVID-19; or you know or
suspect that you have been in close contact with someone who has been diagnosed with COVID-
19. If you are unable to attend in-person, we would be pleased to connect with you by email,
phone or video conference. Thank you for your understanding and cooperation.
From:Jennifer White<jwhite@kincardine.ca>
Sent:October 4, 2021 1:14 PM
To:Tammy Grove-McClement<tgrove@rossfirm.com>
Cc:Jennifer Lawrie<jlawrie@kincardine.ca>; Adam Weishar<aweishar@kincardine.ca>
Subject: RE: Kincardine and EPCOR - File No. 19962
Hello All,
I still have these agreements on my desk. Can you confirm that this is still on hold?
Thanks
�@C1Cllfef wf11tE �Preferred Pronouns:She/Her or They/Them)
Deputy Clerk
Municipality of Kincardine
1475 Concession 5
Kincardine, ON N2Z 2X6
Ph: 519-396-3468 ext. 7112
Fax: 519-396-8288
Please visit www.kincardine.ca
From:Tammy Grove-McClement<tammy�m:�waikerton�aw.ca>
Sent:June 22, 2021 12:21 PM
To:Jennifer White<;white@I<incardine.ca>; Anne Emke <anne@walker?onlaw.ca>
Cc:Jennifer Lawrie<jiawrie@I<incardine.ca>; Adam Weishar<aweisnar@kincardine.ca>
Subject: RE: Kincardine and EPCOR- File No. 19962
Importance: High
Hi Jennifer,
Please hold the Agreements and do not insert any dates until I tell you they can be released. I will be discussing this
with Adam tomorrow and speaking to EPCOR's legal counsel. (FYI in this case the Agreement date would be the date
the Agreements are signed by the Mayor and CAO and not the date of the Bylaw however we may be holding off
inserting a date until the reference plans are deposited and the descriptions inputted which will be in a couple of
weeks).
Rega rds,
Tammy
z
Tammy W.Grove-McClement
Grove-McClement& Fischer LLP
Barristers& Solicitors
www.�valk�rt��nlaw.ca
P.O. Box 880, 11 Durham Street E
Walkerton, Ontario NOG 2V0
TeL• �19-881-3230 I Fax: �19-881-3595
;>', ', �,� �� _ . . _ -, _ _ , _ � _ _ - ,
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, •� . �. . _ .
I'his E-mail(and any attachments)contains legally privileged and conFdential information intended only for the person(s)named in the message. [f
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From:Jennifer White<jwhite@kincardine.ca>
Sent:June 22, 2021 12:12 PM
To:Anne Emke<anne@walkertonlaw.ca>
Cr.Tammy Grove-McClement<tammygm@waikertonlaw.ca>;Jennifer Lawrie<jlawrie@kincardfne.ca>
Subject: Kincardine and EPCOR- File No. 19962
Hi Anne,
We have the agreements all signed now for the EPCOR Easements, but I have two questions:
1) At the top of each agreement is THIS AGREEMENT made the _day of , 2021.
Our practice has been to make this date,the day the by-law passed, as that is when Council authorized making the
agreement. In this case, it would be November 9, 2020. We aren't sure if this is the requirement, or a legacy practice.
What is the date which should be used for this part of the agreement?And without all four parties resigning this, how
would we make the change to 2020 if needed?
2) I understand that we are sending EPCOR an electronic copy of the signed agreement when it's done. Does your
office need anything further?
Thanks
Jennifer White
Deputy Clerk
Municipality of Kincardine
1475 Concession 5
Kincardine, ON N2Z 2X6
Ph: 519-396-3468 ext. 7113
Fax: 519-396-8288
Please visit www.kincardine.ca
3
The information contained in this message is intended only for the person(s) named above and may not be otherwise
distributed, copied or disclosed.The message may contain privileged, confidential or personal information which is
subject to the provisions of the Municipal Freedom of Information and Protection and Privacy Act. If you have received
this message in error, please notify the sender immediately and delete the message without making a copy.Thank you.
Please consider the environment before printing this email.
The information contained in this message is intended only for the person(s) named above and may not be otherwise
distributed, copied or disclosed.The message may contain privileged, confidential or personal information which is
subject to the provisions of the Municipal Freedom of Information and Protection and Privacy Act. If you have received
this message in error, please notify the sender immediately and delete the message without making a copy.Thank you.
Please consider the environment before printing this email.
4
Non-Maintenance Easement Agreement
PIPELINE EASEMENT
THIS AGREEMENT made the_day of , 2021.
BETWEEN:
EPCOR NATURAL GAS LIMITED PARTNERSHIP
("EPCOR")
-and-
THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE (the"Owner")
WHEREAS:
A. The Owner is the registered owner of an estate in fee simpie, subject to such
encumbrances, liens and interests as are at the date hereof set forth in the parcel register,
in the lands situated in the Province of Ontario and legally described as:
PIN 33307-0124
HAMLIN ST PL fi1 EXCEPT R191665; KINCARDINE
B. The Owner has agreed to grant to EPCOR a right-of-way and easement across all or a
portion of the Lands (as defined below) in accordance with the terms and conditions
contained in this Agreement.
IN CONSIDERATION OF the mutual covenants and agreements set forth herein and for other
good and valuable consideration, the receipt and sufficiency of which is acknowledged by each
of the parties, and in consideration of the payment of the Fee (as defined below) by EPCOR to
the Owner, EPCOR and the Owner agree as follows:
1. GRANT
1.1 The Owner hereby grants, conveys and transfers unto EPCOR a non-exclusive
right, license, liberty, privilege and easement for a term of 21 years' less a day on,
over, across, along, in, under and through that po�tion of the Lands (as defined
below) outlined in red and/or shown as cross-hatched on the attached Schedule
"A" and described as follows those parts of:
PIN 33307-0124
HAMLIN ST PL 61 EXCEPT R191665; KINCARDINE;
being parts � on Reference Plan �](the"Lands").
to lay down, construct, operate, maintain, inspect, patrol (including aerial patrol),
alter, relocate, remove, replace, reconstnact and repair a line of pipe together with
all facilities or works of EPCOR useful in connection with or incidental to its
undertaking, including, but without limiting the generality of the foregoing, all such
pipes, drips, valves, fittings, connections, meters, cathodic protection equipment
and other equipment and appurtenances, whether or not similar to the foregoing,
as may be useful or convenient in connection therewith or incidental thereto for the
-2 -
carriage,transmission, conveyance, transportation and handling of oil, natural and
artificial gas and other gaseous or liquid hydrocarbons and any product or by-
product thereof (such line of pipe together with such �elated facilities or works
being referred to collectively as the "Pipeline"). Notwithstanding anything else
herein, the Owner shall not grant any of the foregoing rights to any other person
without the prior written consent of EPCOR which shall not be unreasonably
withheld.
2. FEE
2.1 Upon the execution of this Agreement by EPCOR and the Owner, EPCOR shall
pay to the Owner the sum of One Dollar ($1.00) exclusive of Harmonized Sales
Tax(the"Fee"),the receipt of which is acknowledged by the Owner. The payment
of the Fee by EPCOR is the sole consideration and inducement for the execution
by the Owner of this Agreement and is the total compensation payable by EPCOR
to the Owner for the right to use the Lands as stated in this Agreement.
3. RIGHT OF ACCESS
3.1 EPCOR shall have the right at any time and from time to time to do whatever may
be required for the enjoyment of the rights granted under this Agreement, including
the removal of any boulder or rock or the trimming and�emoval of all trees, shrubs
and other vegetation on, over, ac�oss, along, in, under and through the Lands.
3.2 Upon execution of this Agreement by EPCOR and the Owner, EPCOR may
ingress and egress at any and all times on, over, along, across, along, in, under
and through the Lands with its servants, agents, employees, contractors and
subcontractors (collectively, the "Authorized Representatives"), on foot and/or
with vehicles, supplies, machinery and equipment, for all purposes useful or
convenient in connection with or incidental to the exercise and enjoyment of the
rights granted pursuant to this Agreement.
3.3 EPCOR and its Authorized Representatives shall have the right of ingress and
egress from the Lands at any and all times on, over across, along, in, under and
through the Lands for the purposes of exercising the rights granted under this
Agreement. This right of access shall be used only in cases of necessity or
emergency, as determined by EPCOR in EPCOR's sole and absolute discretion.
EPCOR shall pay reasonable compensation to the Owner of the Lands for any
damage caused by EPCOR and its Authorized Representatives in the exercise of
the right of access as granted to EPCOR under this Clause 3.3.
3.4 The rights, licenses, liberties, privileges and easements specifically described in
Clauses 1 and 3 are being referred to collectively as the"Easement Rights".
4. PIPELINE
4.1 Notwithstanding any rule of law or equity to the contrary, the Pipeline shall at all
times remain a chattel and the personal property of EPCOR or its assigns and shall
not become part of the Lands, notwithstanding that it may be annexed or affixed
to the Lands or abandoned by EPCOR.
-3 -
4.2 EPCOR shall install, construct, operate and maintain the Pipeline in a responsible
manner so as to minimize damage to the Lands and shall, where practicable, after
any such work restore the Lands to substantially its original level and condition,
save and except for any soil rise above grade to allow for soil settlement (the
"Restoration Work"). EPCOR shall not be responsible for any damages caused
by subsidence after levelling is completed,provided the subsidence does not occur
as a result of negligence on the part of EPCOR. Notwithstanding the foregoing, or
Clause 7.1, EPCOR shall only be obligated to compensate the Owner for damage
to buildings or improvements that may be placed within the Lands,and arising from
the exe�cise by EPCOR of its rights under this Agreement, if EPCOR has given its
prior written consent pursuant to Clause 5.2 to the placement of such buildings or
improvements within the Lands.
4.3 If EPCOR has not commenced the Restoration Work within a period of ninety(90)
days following completion of the Pipeline,the Owner may after thirty(30)days prior
written notice, complete the Restoration Work, in accordance with all applicable
requirements including TSSA requirements and if such requirements must be
completed by a natural gas utility the Owner shall not complete any portion of the
Restoration Work governed by those requirements, provided there is no
interference with the Easement Rights. EPCOR shall pay to the Owner within
fifteen (15) business days following demand, all reasonable amounts paid by the
Owner in respect of such Restoration Work.
4.4 EPCOR shall have the right to temporarily fence and use such portions of the
Lands as may in its opinion be required. If at any time EPCOR shall require
temporary fencing for maintenance or operational reasons, such fencing shall be
temporary and EPCOR shall obtain the prior written consent of the Owner, acting
reasonably, as to the type, term and location of any fencing and shall locate such
temporary fencing insofar as may be practicable so to do, in such a fashion as to
provide a minimum of inconvenience to the Owner. EPCOR shall furnish to the
Owner a plan of the intended location. EPCOR shall within a period of thirty (30)
days following completion of the Pipeline, compensate the Owner for any
inconvenience caused to the Owner and for all damage occurring as a result of
fencing any such portion of the Lands.
4.5 EPCOR may at any time for whatsoever reason or cause abandon the Pipeline in
accordance with the then-applicable legislation, regulations and governmental
directions. In the event of the abandonment of the Pipeline, EPCOR may, at its
option, either leave the Pipeline in place or remove it provided this option remains
in accordance with the then-applicable legislation. If EPCOR leaves the Pipeline
in place EPCOR shall complete decommissioning procedures and comply with all
applicable legislation. In the event of removal, EPCOR shall conserve, reclaim
and remediate the portion of the Lands affected by the exercise of the rights herein
granted, insofar as it is practicable to do so and in accordance with the then-
applicable legislation, regulations and governmental directions. In the event of
removal or decommissioning, as the case may be, and subject to the then-
applicable legislation, EPCOR agrees to discharge this Agreement and the
Easement Rights in the appropriate Land Registry Office within 180 days from the
effective date of the removal of the Pipeline or the completion of the
decommissioning of the Pipeline.
-4-
5. OWNER'S USE OF LANDS
5.1 The Owner shall not use the Lands in any manner which may conflict with the
rights of EPCOR as granted to EPCOR pursuant to this Agreement.
5.2 The Owner shall not, without the prior written consent of EPCOR which consent
shall not be unreasonably withheld, stockpile, excavate, drill, install, erect,
construct or place above, through, on or under the Lands any pavement, building,
fence, pit, well, pipe, foundation, sidewalk, or other structure or improvement, or
do or permit to be done any mining, quarrying, land levelling or other work or
activity of any like or similar nature on, in or under the Lands. The Owner shall not
permit any of these activities to occur by others.
5.3 The Owner shall not alter the surface grade level of the Lands in any manner which
would affect the rights granted to EPCOR pursuant to this Agreement.
5.4 The Owner shall not plant any trees within the Lands. Existing trees on the Lands
shall not be removed without the prior written consent of the Owner.
5.5 The Owner shall not store or otherwise place toxic, hazardous, dangerous,
flammable, potentially explosive, noxious or waste substances or contaminants
(the "Hazardous Materials") within the Lands, nor shall the Owner permit the
storage or placement by a third party of such substances within the Lands.
5.6 The Owner shall not be responsible for the maintenance of the Lands which will
allow EPCOR to utilize the rights granted in this Agreement and EPCOR is
authorized to maintain that portion of the Lands which it requires for its enjoyment
of the rights granted hereunde�.
5.7 Subject to the foregoing and to the p�ovisions of applicable legislation, regulations
and govemmental directions, and provided that there is no interfe�ence with the
Easement Rights, the Owner shall have the right to use and enjoy the Lands. In
addition, EPCOR hereby grants permission to the Owner to cross the buried
Pipeline with ordinary farming vehicles as necessary in connection with ordinary
cultivation, as such vehicles are defined by EPCOR from time to time and
communicated in writing to the Owner at the address set out in Clause 9.
6. ENVIRONMENTAL OBLIGATIONS
6.1 EPCOR and the Owner shall comply with all applicable legislation, regulations and
governmental direction dealing with environmental issues, including the
Hazardous Materials (the"Environmental Laws"), related to the Lands.
6.2 The Owner �epresents and warrants that the Lands have not been used for the
storage of the Haza�dous Materials. If EPCOR encounters any Hazardous
Materials in undertaking any work within the Lands, it shall give notice to the
Owner. At the expense of the Owner, EPCOR(or, at EPCOR's option,the Owner)
shall effect the removal of such Hazardous Materials in accordance with the
Environmental Laws.
-5 -
6.3 The responsibility of EPCOR and the Owner with respect to environmental
obligations, as required by this Agreement, shall continue to be enforceable during
and after the termination of this Agreement.
7. INDEMNITY AND COMPENSATION
7.1 EPCOR acknowledges and agrees that, in exercising any of its rights under this
Easement Agreement, it shall do so at its own risk and expense. Unless the loss
or damage is directly attributable to the gross negligence or willful misconduct of
the Owner, its elected officials, officers, employees and agents and those persons
for whom the Owner is responsible in law, EPCOR shall not have a claim against
the Owner fo�any loss or damage by whomsoever caused to EPCOR's property.
F�ccept for the gross negligence or willful misconduct of the Owner, its employees,
agents, contractors, subcontractors and those persons for whom the Owner is
responsible in law, EPCOR shall:
(a) be liable to the Owner for; and
(b) indemnify and save harmless the Owner, its employees, agents,
contractors, subcontractors and those persons for whom the Owner is
responsible in law from and against
any and all claims, suits, actions, demands, expenses, damages and costs which
may be brought or made against the Owner or which the Owner may pay or incur
by reason of any breach,violation or non-perfoRnance by EPCOR of any covenant,
term or provision of this Agreement or by reason of the gross negligence or willful
misconduct of EPCOR, its agents, employees, contractors, subcontractors and
those persons for whom EPCOR is responsible in law, in the exercise of the rights
as granted to EPCOR under this Agreement. This indemnity shall be in addition to
� and not in lieu of any insurance to be provided by EPCOR in accordance with this
Easement Agreement and shall survive this Easement Agreement.
8. QUIET ENJOYMENT
8.1 EPCOR by perForming and observing the terms and conditions of this Ag�eement
shall and may peaceably hold and enjoy all the rights granted under this
Agreement,without hindrance, molestation or interruption on the part of the Owner
or any person claiming by, through, under, from or in trust for, the Owner.
9. ADDRESS FOR CONSENT OR NOTICE
9.1 Any written consent required to be obtained from, and any notices to be given to,
EPCOR or the Owner, as the case may be, pursuant to this Agreement shall be in
writing and obtained or effected by delivering the request or notice to EPCOR or
the Owner in person or by email, registered mail, postage prepaid, addressed as
follows:
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To EPCOR:
EPCOR Natural Gas Limited Partnership
Attention: General Manager
39 Beech Street East
Alymer ON N5H 3J6
Email:
To the Owner:
The Corporation of the Municipality of Kincardine
1475 Concession 5
Kincardine, ON
N2Z 2X6
Attention: Clerk
Email: ilawrieCa�kincardine.ca
A notice will be effective on: (i) the other party's receipt of it; or (ii) if sent by
registered mail, on the earlier of the other party's receipt of it and the seventh day
after mailing it.
10. DISPUTE RESOLUTION
10.1 In the event of a determination by either party in regard to a matter in dispute
between EPCOR and the Owner as to the interpretation or effect of any of the
terms or conditions of this Agreement, and where notice of such determination has
been delivered to EPCOR or the Owner, as the case may be, the determination
shall be conclusively deemed to have been accepted by the parties, unless,within
ten (10) days of the receipt of notice of the determination the party receiving the
notice gives written notice to the other party (the "Arbitration Notice") of their
desire to have the matter in dispute resolved by arbitration.
10.2 Within seven(7)days of receipt of the A�bitration Notice, the parties shall mutually
appoint an arbitrator (the "Arbitrator�). In the event that the parties shall fail to
agree on the appointment of the Arbit�ator,then either party may, on written notice
to the other, apply to the Ontario Superior Court of Justice for the appointment of
the Arbitrator, pursuant to the Arbitration Act, 1991, S.O. 1991, c. 17, as amended
(the"Arbitration Act").
10.3 The seat of arbitration shall be Kincardine, Ontario.
10.4 The Arbitrator shall be directed to make its determination on the basis of a
presumption that this Agreement does not require amendments. Any
determination of the Arbitrator shall include a determination as to payment of the
costs of the arbitration. The determination of the Arbitrator shall be final and
binding on the parties and there shall be no right to appeal of such decision to the
courts.
- 7 -
10.5 Except as modified by this Agreement, the provisions of the Arbitration Act and its
regulations or any successive legislation shall apply.
11. GENERAL
11.1 Entire Agreement
There are no conditions, either subsequent or precedent, except as stated in this
Agreement and in the letter of understanding between the Parties dated November
5,2020(the pLOU°). This Agreement and the LOU represent the entire agreement
between EPCOR and the Owner and no representations or warranties have been
made by EPCOR, except as stated in this Agreement and the LOU.
11.2 Governing Law
This Agreement shall be governed by and construed in accordance with the laws
in force in the Province of Ontario and the laws of Canada applicable therein.
11.3 Easement in Gross
The rights granted under this Agreement, including the Easement Rights, are
declared to be an easement in gross.
11.4 Further Assurances
The parties hereto will execute such further assurances of the Lands and the rights
granted under this Agreement as may be required.
11.5 Assignment
EPCOR shall, without the consent of the Owner, but upon seven (7) days prior
written notice, have the right to assign, in whole or in part, to any person,
pa�tnership, trust, govemment, agency or corporation, the rights granted,
transferred and conveyed under this Agreement, including the Easement Rights,
provided that the assignee shall execute and deliver an assignment agreement in
a form to be provided by EPCOR,whereby the assignee agrees to assume and be
bound by the terms and conditions of this Agreement. Such notice shall include
the notice particulars as required by Clause 9.1.
11.6 EPCOR's use of Lands
EPCOR shall, without the consent of the Owner, have the right to grant the right to
use the Lands, in whole or in part, in accordance with the terms and conditions
contained in this Agreement to any person, partnership,trust,government,agency
or corporation.
11.7 Enurement
This Agreement, including all covenants contained herein and all rights granted
hereunder, is and shall be of the same force and effect for all intents and purposes
as a covenant running with the Lands and shall extend to, be binding upon and
-8-
enure for the benefit of the heirs,executors,administrators, successors-in-title and
assigns of the parties respectively.
11.8 Severability
If any term or condition of this Agreement is invalid or unenforceable under any
applicable statute or is declared invalid or unenforceable by a court of competent
jurisdiction, then such term or condition shall be deemed to be severed from this
Agreement, provided however, that the remainder of this Agreement shall not be
affected, shall continue in full force and effect and each remaining term and
condition shall be valid and be enforced to the fullest extent permitted by law.
11.9 Additional Taxes
EPCOR agrees that no taxes, rates, assessments, charges, levies or impositions
of any kind or nature of any govemmental authority. Including without limitation
property taxes on the pipeline, shall be payable by or placed upon the Owner in
relation to any use of the Lands by EPCOR pursuant to this Agreement, and if any
such taxes, rates, assessments, charges, levies or impositions shall be levied,
imposed, or placed, EPCOR shall make payment thereof. All taxes or
assessments in the nature of sales taxes, good and services taxes or value added
taxes which may be charged, levied or assessed as a result of this Agreement,
whether or not such taxes are charged, levied or assessed as against the Owner,
shall be the responsibility of EPCOR, and EPCOR shall on written demand by the
Owner, pay to the Owner any and all such taxes.
11.10 Outstanding Charges,Taxes, Liens,etc.
Notwithstanding any other provision in this Agreement, 'rf EPCOR determines that:
(a) there are outstanding charges, taxes, builders' liens, writs of execution,
judgments or other encumbrances which are registered against the Lands;
or
(b) there are any overdue amounts outstanding under any agreement for sale,
mortgage or other financial encumbrancs that is registered against the
Lands;
EPCOR may, but is not obligated to, pay all or a portion of the compensation or
other amounts payable under this Agreement to the holder of such charge, lien,
writ of execution, judgment, mortgage or other financial encumbrance, or to such
vendor or mortgagee to satisfy and discharge such encumbrance or to obtain a
postponement from the encumbrance holder. The payment of any amount to such
third party shall be deemed to be payment of such amount to the Owner. For
greater certainty, EPCOR shall not be required to obtain the Owner's consent prior
to making such payment. EPCOR shall provide to the Owner written confirmation
of any such payments within thirty(30)days of making such payments.
-9 -
11.11 Sole Remedy
It is understood and agreed that notwithstanding any other provision in this
Agreement and notwithstanding any rights that any person having an interest may
have in law or in equity, should EPCOR fail to pay any payments payable
hereunder, the sole remedy of any such person having an interest shall be to
recover from EPCOR such amount and any interest payabls thereon, and in no
event shall such person having an interest for whatever reason, interfere with,
hinder, molest or interrupt EPCOR in its enjoyment of any of the rights granted,
transferred and conveyed under this Agreement, including the Easement Rights.
11.12 Personallnformation
The Owner consents to the collection and use of its personal information within
this Agreement. EPCOR collects this type of personal information for the purposes
of general land rights acquisition and regulatory disclosure. The Owner consents
to the collection, use and disclosure of its personal information for these legitimate
business purposes in relation to land matters of EPCOR. The Owner is a municipal
corporation incorporated pursuant to the Municipa/Act, 2001, S.O. 2001, c. 25, as
amended and is subject to the Municipal Freedom of Information and Protection of
PrivacyAct, R.S.O. 1990, c. M.56, as amended ("MIFFPA°). EPCOR agrees that
MIFFPA applies to all information or records within EPCOR's custody or control
that are collected or created specifically for the purposes of this Agreement.
11.13 Survival of Obligations
Any term or provision in this Agreement, which, in order to be given its fullest
intended effect, must extend past the expiration or termination of this Agreement
will survive the expiration or termination of this Agreement, including Articles 6, 7
and 10.
11.14 Insurance
Throughout the term of this Agreement, the Owner shall maintain in full force and
effect insurance coverage to the levels of a reasonable owner.
Throughout the term of this Agreement, EPCOR will maintain in full force and effect
the following insurance:
(a) Commercial General Liability insurance in an amount of not less than
$10,000,000.00 per occurrence for bodily injury including death and/or
property damage, which will include the following extensions: contractual
liability, non-owned automobile, products and completed operations,
broad form property damage, sudden and accidental pollution liability,
cross liability and/or severability of interest, contingent employer's liability,
and where applicable no exclusion for excavation, collapse, shoring and
underpinning; and
(bj Commercial Automobile Liabitity insurance covering all owned, leased or hired
licensed motor vehicles used in connection with the Lands with a combined
- 10 -
limit of not less than $10,000,000.00 per occurrence for bodily injury including
death and/or property damage.
(c) An environmental impairment liability policy with a limit of ten million dollars
($10,000,000)per occurrence to include the following:
(i) physical damage to property including loss of use and the prevention,
control and clean-up of land,the atmosphere or any watercourse or body
of water;
(ii) gradual or sudden and accidental pollution for events such as fire,
explosion or a sudden spill, as well as seepage over time; and
(iii) first and third-party clean-up expenses, bodily injury and property
damage arising from a pollution event.
All insurance policies required to be held by EPCOR under this Agreement:
(a) must provide the Owner with 30 days written notice of cancellation;
(b) where applicable, must be primary and not contributory with, or in excess
of, any other insurance carried by the Owner;
(c) may use primary and/or umbrella liability insurance to achieve required
limits; and
(d) EPCOR will be responsible for payment of all premiums and deductible
amounts relating to the insurance policies required to be held by EPCOR
under this Agreement.
11.15 Costs of Registration
Any costs related to the registration of document with the appropriate land registry
office shall be the sole responsibility of EPCOR.
11.16 Minor Changes for Reference Plan
The parties agree that the Agreement may be executed without completion of the
Reference Plan in Section 1.1 hereof. Upon completion of the Reference Plan, the
parties agree that this Agreement may be modified to include insertion of the
Reference Plan.
11.17 In this Agreement:
11.17.1 the word "shall" is to be read and interpreted as mandatory;
11.17.2 the word "may" is to be read and interpreted as permissive; and
11.17.3 the word "Owner" shall be read and interpreted as meaning an
individual, a partnership, a corporation, a trust, an unincorporated
organization, a govemment, or any department or agency thereof, and
, �+ .
- 11 -
the heirs, executors, administrators or other legal representatives of
any individual.
11.18 Counterparts
This Agreement may be executed in any number of counterparts and all of which
taken together will constitute one and the same instrument. All parties agree that
this Agreement may be transmitted by telecopier or electronic transmission via
email and that the reproduction of signatures by way of telecopier or electronic
transmission via email were executed originals will be treated as though such
reproduction were executed originals and each party undertakes to provide the
other with a copy of this Agreement bearing original signatures within a reasonable
time after written request therefore.
IN WITNESS WHEREOF EPCOR„�ND THE OWNER HAVE EXECUTED THIS AGREEMENT
ON THE �DAY OF --��'`i� , 2021.
EPCOR: EPCOR NATURAL GAS LIMITED
PARTNERSHIP, by its general partner
EPCOR ONTARIO UTILITIES INC.
kc�,.i—��
Per: " c/s
Name: +N1.-1�, Qe��'7'l , 1�►�"��+-�.uEe_
Position:�`.r..��.,n,Pl�-,1,��(��'"�� ►`�'�C+l.c�/�CL
�� , cM���t�,ra .
I have authority to bind the orporation
OWNER: THE CORPORATION OF THE
MUNICIPALITY OF KINCARDINE
Per: ��C����
Gerry I r, May
Pe .
Sharon Chambers, C
We have authority to bind the Corporation.
� � ,
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Non-Maintenance Easement Agreement
PIPELINE EASEMENT
THIS AGREEMENT made the_day of , 2021.
BETWEEN:
EPCOR NATURAL GAS LIMITED PARTNERSHIP
("EPCOR")
- and -
THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE (the "Owner")
WHEREAS:
A. The Owner is the registered owner of an estate in fee simple, subject to such
encumbrances, liens and interests as are at the date hereof set forth in the parcel register,
in the lands situated in the Province of Ontario and legally described as:
PIN 33307—0076
PCL PLAN-2 SEC M33; BLK C PL M33; S/T LT17170, LT41646; KINCARDINE
B. The Owner has agreed to grant to EPCOR a right-of-way and easement across all or a
portion of the Lands (as defined below) in accordance with the terms and conditions
contained in this Agreement.
IN CONSIDERATION OF the mutual covenants and agreements set forth herein and for other
good and valuable consideration, the receipt and sufficiency of which is acknowledged by each
of the parties, and in consideration of the payment of the Fee (as defined below) by EPCOR to
the Owner, EPCOR and the Owner agree as follows:
1. GRANT
1.1 The Owner hereby grants, conveys and transfers unto EPCOR a non-exclusive
right, license, liberty, privilege and easement for a term of 21 years' less a day on,
over, across, along, in, under and through that portion of the Lands (as defined
below} outlined in red and/or shown as cross-hatched on the attached Schedule
"A° and described as follows those parts of:
PIN 33307—0076
PCL PLAN-2 SEC M33; BLK C PL M33; S/T LT17170, LT41646; KINCARDINE;
being parts • on Reference Plan •](the"Lands").
to lay down, construct, operate, maintain, inspect, patrol (including aerial patrol),
alter, relocate, remove, replace, reconstruct and repair a line of pipe together with
all facilities or works of EPCOR useful in connection with or incidental to its
unde�taking, including, but without limiting the generality of the foregoing, all such
pipes, drips, valves, fittings, connections, meters, cathodic protection equipment
and other equipment and appu�tenances, whether or not similar to the foregoing,
as may be useful or convenient in connection therewith or incidental thereto for the
-2 -
carriage,transmission, conveyance, transportation and handling of oil, natural and
artificial gas and other gaseous or liquid hydrocarbons and any product or by-
product thereof (such line of pipe together with such related facilities or works
being referred to collectively as the "Pipeline"). Notwithstanding anything else
herein, the Owner shall not grant any�of the foregoing rights to any other person
without the prior written consent of EPCOR which shall not be unreasonably
withheld.
2. FEE
2.1 Upon the execution of this Agreement by EPCOR and the Owner, EPCOR shall
pay to the Owner the sum of One Dollar ($1.00) exclusive of Harmonized Sales
Tax(the"Fee"), the receipt of which is acknowledged by the Owner. The payment
of the Fee by EPCOR is the sole consideration and inducement for the execution
by the Owner of this Agreement and is the total compensation payable by EPCOR
to the Owner for the right to use the Lands as stated in this Agreement.
3. RIGHT OF ACCESS
3.1 EPCOR shall have the right at any time and from time to time to do whatever may
be required for the enjoyment of the rights granted under this Agreement, including
the removal of any boulder or rock or the trimming and removal of all trees, shrubs
and other vegetation on, over, across, along, in, under and through the Lands.
3.2 Upon execution of this Agreement by EPCOR and the Owner, EPCOR may
ingress and egress at any and all times on, over, along, across, along, in, under
and through the Lands with its servants, agents, employees, contractors and
subcontractors (collectively, the "Authorized Representatives"), on foot and/or
with vehicles, supplies, machinery and equipment, for all purposes useful or
convenient in connection with or incidental to the exercise and enjoyment of the
rights granted pursuant to this Agreement.
3.3 EPCOR and its Authorized Representatives shall have the right of ingress and
egress from the Lands at any and all times on, over across, along, in, under and
through the Lands for the purposes of exercising the rights granted under this
Agreement. This right of access shall be used only in cases of necessity or
emergency, as determined by EPCOR in EPCOR's sole and absolute discretion.
EPCOR shall pay reasonable compensation to the Owner of the Lands for any
damage caused by EPCOR and its Authorized Representatives in the exercise of
the right of access as granted to EPCOR under this Clause 3.3.
3.4 The rights, licenses, liberties, privileges and easements specifically described in
Clauses 1 and 3 are being referred to collectively as the "Easement Rights".
4. PIPELINE
4.1 Notwithstanding any rule of law or equity to the contrary, the Pipeline shall at all
times remain a chattel and the personal property of EPCOR or its assigns and shall
not become part of the Lands, notwithstanding that it may be annexed or affixed
to the Lands or abandoned by EPCOR.
-3 -
4.2 EPCOR shall install, construct, operate and maintain the Pipeline in a responsible
manner so as to minimize damage to the Lands and shall, where practicable, after
any such work restore the Lands to substantially its original level and condition,
save and except for any soil rise above grade to allow for soil settlement (the
"Restoration Work"). EPCOR shall not be responsible for any damages caused
by subsidence after levelling is completed, provided the subsidence does not occur
as a result of negligence on the part of EPCOR. Notwithstanding the foregoing, or
Clause 7.1, EPCOR shall only be obligated to compensate the Owner for damage
to buildings or improvements that may be placed within the Lands,and arising from
the exercise by EPCOR of its rights under this Agreement, if EPCOR has given its
prior written consent pursuant to Clause 5.2 to the placement of such buildings or
improvements within the Lands.
4.3 If EPCOR has not commenced the Restoration Work within a period of ninety(90)
days following completion of the Pipeline,the Owner may after thirty(30)days prior
written notice, complete the Restoration Work, in accordance with all applicable
requirements including TSSA requirements and if such requirements must be
completed by a natural gas utility the Owner shall not complete any portion of the
Restoration Work govemed by those requirements, provided there is no
interference with the Easement Rights. EPCOR shall pay to the Owner within
fifteen (15) business days following demand, all reasonable amounts paid by the
Owner in respect of such Restoration Work.
4.4 EPCOR shall have the right to temporarily fence and use such portions of the
Lands as may in its opinion be required. If at any time EPCOR shall require
temporary fencing for maintenance or operational reasons, such fencing shall be
temporary and EPCOR shall obtain the prior written consent of the Owner, acting
reasonably, as to the type, term and location of any fencing and shall locate such
temporary fencing insofar as may be practicable so to do, in such a fashion as to
provide a minimum of inconvenience to the Owner. EPCOR shall furnish to the
Owner a plan of the intended location. EPCOR shall within a period of thirty (30)
days following completion of the Pipeline, compensate the Owner for any
inconvenience caused to the Owner and for all damage occurring as a result of
fencing any such portion of the Lands.
4.5 EPCOR may at any time for whatsoever reason or cause abandon the Pipeline in
accordance with the then-applicable legislation, regulations and governmental
directions. In the event of the abandonment of the Pipeline, EPCOR may, at its
option, either leave the Pipeline in place or remove it provided this option remains
in accordance with the then-applicable legislation. If EPCOR leaves the Pipeline
in place EPCOR shall complete decommissioning procedures and comply with all
applicable legislation. In the event of removal, EPCOR shall conserve, reclaim
and remediate the portion of the Lands affected by the exercise of the rights herein
granted, insofar as it is practicable to do so and in accordance with the then-
applicable legislation, regulations and governmental directions. In the event of
removal or decommissioning, as the case may be, and subject to the then-
applicable legislation, EPCOR agrees to discharge this Agreement and the
Easement Rights in the appropriate Land Registry Office within 180 days from the
effective date of the removal of the Pipeline or the completion of the
decommissioning of the Pipeline.
-4-
5. OWNER'S USE OF LANDS
5.1 The Owner shall not use the Lands in any manner which may conflict with the
rights of EPCOR as granted to EPCOR pursuant to this Agreement.
5.2 The Owner shall not, without the prior written consent of EPCOR which consent
shall not be unreasonably withheld, stockpile, excavate, drill, install, erect,
construct or place above, through, on or under the Lands any pavement, building,
fence, pit, well, pipe, foundation, sidewalk, or other structure or improvement, or
do or permit to be done any mining, quarrying, land levelling or other work or
activity of any like or similar nature on, in or under the Lands. The Owner shall not
permit any of these activities to occur by others.
5.3 The Owner shall not alter the surFace grade level of the Lands in any manner which
would affect the rights granted to EPCOR pursuant to this Agreement.
5.4 The Owner shall not plant any trees within the Lands. Existing trees on the Lands
shall not be removed without the prior written consent of the Owner.
5.5 The Owner shall not store or otherwise place toxic, hazardous, dangerous,
flammable, potentially explosive, noxious or waste substances or contaminants
(the "Hazardous Materials") within the Lands, nor shall the Owner permit the
storage or placement by a third party of such substances within the Lands.
5.6 The Owner shall not be responsible for the maintenance of the Lands which will
allow EPCOR to utilize the rights granted in this Agreement and EPCOR is
authorized to maintain that portion of the Lands which it requires for its enjoyment
of the rights granted hereunder.
5.7 Subject to the foregoing and to the provisions of applicable legislation, regulations
and governmental directions, and provided that there is no interference with the
Easement Rights, the Owner shall have the right to use and enjoy the Lands. In
addition, EPCOR hereby grants permission to the Owner to cross the buried
Pipeline with ordinary farming vehicles as necessary in connection with ordinary
cultivation, as such vehicles are defined by EPCOR from time to time and
communicated in writing to the Owner at the address set out in Clause 9.
6. ENVIRONMENTAL OBLIGATIONS
6.1 EPCOR and the Owner shall comply with all applicable legislation, regulations and
governmental direction dealing with environmental issues, including the
Hazardous Materials (the "Environmental Laws"), related to the Lands.
6.2 The Owner represents and warrants that the Lands have not been used for the
storage of the Hazardous Materials. If EPCOR encounters any Hazardous
Materials in undertaking any work within the Lands, it shall give notice to the
Owner. At the expense of the Owner, EPCOR(or, at EPCOR's option, the Owner)
shall effect the removal of such Hazardous Materials in accordance with the
Environmental Laws.
-5 -
6.3 The responsibility of EPCOR and the Owner with respect to environmental
obligations, as required by this Agreement, shall continue to be enforceable during
and afte�the termination of this Agreement.
7. INDEMNITY AND COMPENSATION
7.1 EPCOR acknowledges and agrees that, in exercising any of its rights under this
Easement Agreement, it shall do so at its own risk and expense. Unless the loss
or damage is directly attributable to the gross negligence or willful misconduct of
the Owner, its elected officials, officers, employees and agents and those persons
for whom the Owner is responsible in law, EPCOR shall not have a claim against
the Owner for any loss or damage by whomsoever caused to EPCOR's prope�ty.
Except for the gross negligence or willful misconduct of the Owner, its employees,
agents, contractors, subcontractors and those persons for whom the Owner is
responsible in law, EPCOR shall:
(a) be liable to the Owner for; and
(b) indemnify and save harmless the Owner, its employees, agents,
contractors, subcontractors and those persons for whom the Owner is
responsible in law from and against
any and all claims, suits, actions, demands, expenses, damages and costs which
may be brought or made against the Owner or which the Owner may pay or incur
by reason of any breach,violation or non-performance by EPCOR of any covenant,
term or provision of this Agreement or by reason of the gross negligence or willful
misconduct of EPCOR, its agents, employees, contractors, subcontractors and
those persons for whom EPCOR is responsible in law, in the exercise of the rights
as granted to EPCOR under this Agreement. This indemnity shall be in addition to
and not in lieu of any insurance to be provided by EPCOR in accordance with this
Easement Agreement and shall survive this Easement Agreement.
8. QUIET ENJOYMENT
8.1 EPCOR by performing and observing the terms and conditions of this Agreement
shall and may peaceably hold and enjoy all the rights granted under this
Agreement,without hindrance, molestation or interruption on the part of the Owner
or any person claiming by, through, under, from or in trust for, the Owner.
9. ADDRESS FOR CONSENT OR NOTICE
9.1 Any written consent required to be obtained from, and any notices to be given to,
EPCOR or the Owner, as the case may be, pursuant to this Agreement shall be in
writing and obtained or effected by delivering the request or notice to EPCOR or
the Owner in person or by email, registered mail, postage prepaid, addressed as
follows:
-6 -
To EPCOR:
EPCOR Natural Gas Limited Pa�tnership
Attention: General Manager
39 Beech Street East
Alymer ON N5H 3J6
Email:
To the Owner:
The Corporation of the Municipality of Kincardine
1475 Concession 5
Kincardine, ON
N2Z 2X6
Attention: Clerk
Email: jlawrie(a�kincardine.ca
A notice will be effective on: (i} the other party's receipt of it; or (ii) if sent by
registered mail, on the earlier of the other party's receipt of it and the seventh day
after mailing it.
10. DISPUTE RESOLUTION
10.1 In the event of a determination by either party in regard to a matter in dispute
between EPCOR and the Owner as to the interpretation or effect of any of the
terms or conditions of this Agreement, and where notice of such determination has
been delivered to EPCOR or the Owner, as the case may be, the determination
shall be conclusively deemed to have been accepted by the parties, unless, within
ten (10) days of the receipt of notice of the determination the party receiving the
notice gives written notice to the other party (the "Arbitration Notice") of their
desire to have the matter in dispute resolved by arbitration.
10.2 Within seven (7)days of receipt of the Arbitration Notice, the parties shall mutually
appoint an arbitrator (the "Arbitrator"). In the event that the parties shall fail to
agree on the appointment of the Arbitrator, then either party may, on written notice
to the other, apply to the Ontario Superior Court of Justice for the appointment of
the Arbitrator, pursuant to the Arbitration Act, 1991, S.O. 1991, c. 17, as amended
(the"Arbitration AcY').
10.3 The seat of arbitration shall be Kincardine, Ontario.
10.4 The Arbitrator shall be directed to make its determination on the basis of a
presumption that this Agreement does not require amendments. Any
determination of the Arbitrator shall include a determination as to payment of the
costs of the arbitration. The determination of the Arbitrator shall be final and
binding on the parties and there shall be no right to appeal of such decision to the
courts.
-7 -
10.5 Except as modified by this Agreement, the provisions of the Arbitration Act and its
regulations or any successive legislation shall apply.
11. GENERAL
11.1 Entire Agreement
There are no conditions, either subsequent or precedent, except as stated in this
Agreement and in the letter of understanding between the Parties dated November
5, 2020(the"LOU"). This Agreement and the LOU represent the entire agreement
between EPCOR and the Owner and no representations or warranties have been
made by EPCOR, except as stated in this Agreement and the LOU.
91.2 Governing Law
This Agreement shall be governed by and construed in accordance with the laws
in force in the Province of Ontario and the laws of Canada applicable therein.
11.3 Easement in Gross
The rights granted under this Agreement, including the Easement Rights, are
declared to be an easement in gross.
11.4 Further Assurances
The parties hereto wifl execute such further assurances of the Lands and the rights
granted under this Agreement as may be required.
11.5 Assignment
EPCOR shall, without the consent of the Owner, but upon seven (7) days prior
written notice, have the right to assign, in whole or in part, to any person,
partnership, trust, government, agency or corporation, the rights granted,
transferred and conveyed under this Agreement, including the Easement Rights,
provided that the assignee shall execute and deliver an assignment agreement in
a form to be provided by EPCOR, whereby the assignee agrees to assume and be
bound by the terms and conditions of this Agreement. Such notice shall include
the notice particulars as required by Clause 9.1.
11.6 EPCOR's use of Lands
EPCOR shall, without the consent of the Owner, have the right to grant the right to
use the Lands, in whole or in part, in accordance with the terms and conditions
contained in this Agreement to any person, partnership, trust, government, agency
or corporation.
11.7 Enurement
This Agreement, including all covenants contained herein and all rights granted
hereunder, is and shall be of the same force and effect for all intents and purposes
as a covenant running with the Lands and shall extend to, be binding upon and
-8 -
enure for the benefit of the heirs, executors,administrators, successors-in-title and
assigns of the parties respectively.
11.8 Severability
If any term or condition of this Agreement is invalid or unenforceable under any
applicable statute or is declared invalid or unenforceable by a court of competent
jurisdiction, then such term or condition shal� be deemed to be severed from this
Agreement, provided however, that the remainder of this Agreement shall not be
affected, shall continue in full force and effect and each remaining term and
condition shall be valid and be enforced to the fullest extent permitted by law.
11.9 Additional Taxes
EPCOR agrees that no taxes, rates, assessments, charges, levies or impositions
of any kind or nature of any governmental authority. Including without limitation
property taxes on the pipeline, shall be payable by or placed upon the Owner in
relation to any use of the Lands by EPCOR pursuant to this Agreement, and if any
such taxes, rates, assessments, charges, levies or impositions shall be levied,
imposed, or placed, EPCOR shall make payment thereof. All taxes or
assessments in the nature of sales taxes, good and services taxes or value added
taxes which may be charged, levied or assessed as a result of this Agreement,
whether or not such taxes are charged, levied or assessed as against the Owner,
shall be the responsibility of EPCOR, and EPCOR shall on written demand by the
Owner, pay to the Owner any and all such taxes.
11.10 Outstanding Charges, Taxes, Liens, etc.
Notwithstanding any other provision in this Agreement, if EPCOR determines that:
(a) there are outstanding charges, taxes, builders' liens, writs of execution,
judgments or other encumbrances which are registered against the Lands;
or
(b) there are any overdue amounts outstanding under any agreement for sale,
mortgage or other financial encumbrance that is registered against the
Lands;
EPCOR may, but is not obligated to, pay all or a portion of the compensation or
other amounts payable under this Agreement to the holder of such charge, lien,
writ of execution, judgment, mortgage or other financial encumbrance, or to such
vendor or mortgagee to satisfy and discharge such encumbrance or to obtain a
postponement from the encumbrance holder. The payment of any amount to such
third party shall be deemed to be payment of such amount to the Owner. For
greater certainty, EPCOR shall not be required to obtain the Owner's consent prior
to making such payment. EPCOR shall provide to the Owner written confirmation
of any such payments within thirty(30)days of making such payments.
-9 -
11.11 Sole Remedy
It is understood and agreed that notwithstanding any other provision in this
Agreement and notwithstanding any rights that any person having an interest may
have in law or in equity, should EPCOR fail to pay any payments payable
hereunder, the sole remedy of any such person having an interest shall be to
recover from EPCOR such amount and any interest payable thereon, and in no
event shall such person having an interest for whatever reason, interfere with,
hinder, molest or interrupt EPCOR in its enjoyment of any of the rights granted,
transferred and conveyed under this Agreement, including the Easement Rights.
11.12 Personallnformation
The Owner consents to the collection and use of its personal information within
this Agreement. EPCOR collects this type of personal information for the purposes
of general land rights acquisition and regulatory disclosure. The Owner consents
to the collection, use and disclosure of its personal information for these legitimate
business purposes in relation to land matters of EPCOR. The Owner is a municipal
corporation incorporated pursuant to the Municipal Acf, 2001, S.O. 2001, c. 25, as
amended and is subject to the Municipa!Freedom of Information and Protection of
PrivacyAct, R.S.O. 1990, c. M.56, as amended ("MIFFPA"). EPCOR agrees that
MIFFPA applies to all information or records within EPCOR's custody or control
that are collected or created specifically for the purposes of this Agreement.
11.13 Survival of Obligations
Any term or provision in this Agreement, which, in order to be given its fullest
intended effect, must extend past the expiration or termination of this Agreement
will survive the expiration or termination of this Agreement, including Articles 6, 7
and 10.
11.14 Insurance
Throughout the term of this Agreement, the Owner shall maintain in full force and
effect insurance coverage to the levels of a reasonable owner.
Throughout the term of this Agreement, EPCOR will maintain in full force and effect
the following insurance:
(a) Commercial General Liability insurance in an amount of not less than
$10,000,000.00 per occurrence for bodily injury including death and/or
property damage, which will include the following extensions: contractual
liability, non-owned automobile, products and completed operations,
broad form property damage, sudden and accidental pollution liability,
cross liability and/or severability of interest, contingent employer's liability,
and where applicable no exclusion for excavation, collapse, shoring and
underpinning; and
(b) Commercial Automobile Liability insurance covering all owned, leased or hired
licensed motor vehicles used in connection with the Lands with a combined
- 10 -
limit of not tess than $10,000,000.00 per occurrence for bodily injury including
death and/or property damage.
(c) An environmental impairment liability policy with a limit of ten million dollars
($10,000,000) per occurrence to include the following:
(i) physical damage to property including Ioss of use and the prevention,
control and clean-up of land,the atmosphere or any watercourse or body
of water;
(ii) gradual or sudden and accidental pollution for events such as fire,
explosion or a sudden spill, as well as seepage over time; and
(iii) first and third-party clean-up expenses, bodily injury and property
damage arising from a pollution event.
All insurance policies required to be held by EPCOR under this Agreement:
(a) must provide the Owner with 30 days written notice of cancellation;
(b) where applicable, must be primary and not contributory with, or in excess
of, any other insurance carried by the Owner;
(c) may use primary and/or umbrella liability insurance to achieve required
limits; and
(d) EPCOR will be responsible for payment of all premiums and deductible
amounts relating to the insurance policies required to be held by EPCOR
under this Agreement.
11.15 Costs of Registration
Any costs related to the registration of document with the appropriate land registry
office shall be the sole responsibility of EPCOR.
11.16 Minor Changes for Reference Plan
The parties agree that the Agreement may be executed without completion of the
Reference Plan in Section 1.1 hereof. Upon completion of the Reference Plan, the
parties agree that this Agreement may be modified to include insertion of the
Reference Plan.
11.17 In this Agreement:
11.17.1 the word "shall" is to be read and interpreted as mandatory;
11.17.2 the word "may" is to be read and interpreted as permissive; and
11.17.3 the word "Owner" shall be read and interpreted as meaning an
individual, a partnership, a corporation, a trust, an unincorporated
organization, a government, or any department or agency thereof, and
- 11 -
the heirs, executors, administrators or other legal representatives of
any individual.
11.18 Counterparts
This Agreement may be executed in any number of counterparts and all of which
taken together will constitute one and the same instrument. All parties agree that
this Agreement may be transmitted by telecopier or electronic transmission via
email and that the reproduction of signatures by way of telecopier or electronic
transmission via email were executed originals will be treated as though such
reproduction were executed originals and each party undertakes to provide the
other with a copy of this Agreement bearing original signatures within a reasonable
time after written request therefore.
IN WITNE�S WHEREOF EPCOR AND THE 01NNER HAVE EXECUTED THIS AGREEMENT
ON THE��DAY OF I��- , 2021.
EPCOR: EPCOR NATURAL GAS LIMITED
PARTNERSHIP, by its general partner
EPCOR ONTARIO UTILITIES INC.
\
Per: � c--`�l`�,"'`^-1`"—�� c/s
Name: �-tL �/3�-�i�—^fc � ��u���.�`Z
Position:�'�c�-•`t� ►���� ���'�-
��`5 C.��t�'�l<<:
I have authority to bind the Corporation
OWNER: THE CORPORATION OF THE
MUNICIPALITY OF KINCARDINE
�
Per:
Ger Glover, r
Pe :
ar n Chambers,
We have authority to bind the Corporation.
SCHEDULE "A"
LANDS
PCL PLAN-2 SEC M33; BLK C PL M33; S/T LT17170, LT41646; KINCARDINE being PIN 33307
—0076(LT)
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EPCOR UTILITIES N
PRELIMINARY PROPERTY SKETCH
EPC�R �UTHBRUCENAT�URA�LEAPELINEPROJECT W E
PIN 33307-0076
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IONCARDINE
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� Non-Maintenance Easement Agreement
II PIPELINE EASEMENT .
THIS AGREEMENT made the_day of , 2021.
I, BETWEEN:
EPCOR NATURAL GAS LIMITED PARTNERSHIP
("EPCOR")
, and
THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE (the "Owner")
I WHEREAS:
' A. The Owner is the registered owner of an estate in fee simple, subject to such
encumbrances, liens and interests as are at the date hereof set forth in the parcel register,
in the lands situated in the Province of Ontario and legally described as:
PIN 33293—0186
i PCL 47-5 SEC TWP OF KINCARDINE CON A; PT LT 48 CON A KINCARDINE PT 1, 3R7842;
I KINCARDINE
B. The Owner has agreed to grant to EPCOR a right-of-way and easement across all or a
portion of the Lands (as defined below) in accordance with the terms and conditions
contained in this Agreement.
IN CONSIDERATION OF the mutual covenants and agreements set forth herein and for other
good and valuable consideration, the receipt and sufficiency of which is acknowledged by each
of the parties, and in consideration of the payment of the Fee (as defined below) by EPCOR to
the Owner, EPCOR and the Owner agree as follows:
1. GRANT
1.1 The Owner hereby grants, conveys and transfers unto EPCOR a non-exclusive
right, license, liberty, privilege and easement for a term of 21 years' less a day on,
over, across, along, in, under and through that portion of the Lands (as defined
below} outlined in red and/or shown as cross-hatched on the attached Schedule
"A" and described as follows those parts of:
PIN 33293—0188
PCL 47-5 SEC TWP OF KINCARDINE CON A; PT LT 48 CON A KINCARDINE PT 1,
3R7842; KINCARDINE;
being parts � on Reference Plan •](the"Lands").
to lay down, construct, operate, maintain, inspect, patrol (including aerial patrol),
alter, relocate, remove, replace, reconstruct and repair a line of pipe together with
all facilities or works of EPCOR useful in connection with or incidental to its
undertaking, including, but without limiting the generality of the foregoing, all such
pipes, drips, valves, fittings, connections, meters, cathodic protection equipment
-2 -
and other equipment and appurtenances, whether or not similar to the foregoing,
as may be useful or convenient in connection therewith or incidental thereto for the
carriage, transmission, conveyance,transportation and handling of oil, natural and
artificial gas and other gaseous or liquid hydrocarbons and any product or by-
product thereof (such line of pipe together with such related facilities or works
being referred to collectively as the "Pipeline"). Notwithstanding anything else
herein, the Owner shall not grant any of the foregoing rights to any other person
without the prior written consent of EPCOR which shall not be unreasonably
withheld.
2. FEE
2.1 Upon the execution of this Agreement by EPCOR and the Owner, EPCOR shall
pay to the Owner the sum of One Dollar ($1.00) exclusive of Harmonized Sales
Tax (the"Fee"), the receipt of which is acknowledged by the Owner. The payment
of the Fee by EPCOR is the sole consideration and inducement for the execution
by the Owner of this Agreement and is the total compensation payable by EPCOR
to the Owner for the right to use the Lands as stated in this Agreement.
3. RIGHT OF ACCESS
3.1 EPCOR shall have the right at any time and from time to time to do whatever may
be required for the enjoyment of the rights granted under this Agreement, including
the removal of any boulder or rock or the trimming and removal of all trees, shrubs
and other vegetation on, over, across, along, in, under and through the Lands.
3.2 Upon execution of this Agreement by EPCOR and the Owner, EPCOR may
ingress and egress at any and all times on, over, along, across, along, in, under
and through the Lands with its servants, agents, employees, contractors and
subcontractors (collectively, the "Authorized Representatives"), on foot and/or
with vehicles, supplies, machinery and equipment, for all purposes useful or
convenient in connection with or incidental to the exercise and enjoyment of the
rights granted pursuant to this Agreement.
3.3 EPCOR and its Authorized Representatives shall have the right of ingress and
egress from the Lands at any and all times on, over across, along, in, under and
through the Lands for the purposes of exercising the rights granted under this
Agreement. This right of access shall be used only in cases of necessity or
emergency, as determined by EPCOR in EPCOR's sole and absolute discretion.
EPCOR shall pay reasonable compensation to the Owner of the Lands for any
damage caused by EPCOR and its Authorized Representatives in the exercise of
the right of access as granted to EPCOR under this Clause 3.3.
3.4 The rights, licenses, liberties, privileges and easements specifically described in
Clauses 1 and 3 are being referred to collectively as the"Easement Rights".
4. PIPELINE
4.1 Notwithstanding any rule �f law or equity to the contrary, the Pipeline shall at all
times remain a chattel and the personal property of EPCOR or its assigns and shall
-3 -
not become part of the Lands, notwithstanding that it may be annexed or affixed
to the Lands or abandoned by EPCOR.
4.2 EPCOR shall install, construct> operate and maintain the Pipeline in a responsible
manner so as to minimize damage to the Lands and shall, where practicable, after
any such work restore the Lands to substantially its original level and condition,
save and except for any soil rise above grade to allow for soil settlement (the
"Restoration Work"). EPCOR shall not be responsible for any damages caused
by subsidence after levelling is completed, provided the subsidence does not occur
as a result of negligence on the part of EPCOR. Notwithstanding the foregoing, or
Clause 7.1, EPCOR shall only be obligated to compensate the Owner for damage
to buildings or improvements that may be placed within the Lands,and arising from
the exercise by EPCOR of its rights under this Agreement, if EPCOR has given its
prior written consent pursuant to Clause 5.2 to the placement of such buildings or
improvements within the Lands.
4.3 If EPCOR has not commenced the Restoration Work within a period of ninety(90)
days following completion of the Pipeline,the Owner may after thirty(30)days prior
written notice, complete the Restoration Work, in accordance with all applicable
requirements including TSSA requirements and if such requirements must be
completed by a natural gas utility the Owner shall not complete any portion of the
Restoration Work govemed by those requirements, provided there is no
interference with the Easement Rights. EPCOR shall pay to the Owner within
fifteen (15) business days following demand, all reasonable amounts paid by the
Owner in respect of such Restoration Work.
4.4 EPCOR shall have the right to temporarily fence and use such portions of the
Lands as may in its opinion be required. If at any time EPCOR shall require
temporary fencing for maintenance or operational reasons, such fencing shall be
temporary and EPCOR shall obtain the prior written consent of the Owner, acting
reasonably, as to the type, term and location of any fencing and shall locate such
temporary fencing insofar as may be practicable so to do, in such a fashion as to
provide a minimum of inconvenience to the Owner. EPCOR shall furnish to the
Owner a plan of the intended location. EPCOR shall within a period of thirty (30)
days following completion of the Pipeline, compensate the Owner for any
inconvenience caused to the Owner and for all damage occurring as a result of
fencing any such portion of the Lands.
4.5 EPCOR may at any time for whatsoever reason or cause abandon the Pipeline in
accordance with the then-applicable legislation, regulations and governmental
directions. In the event of the abandonment of the Pipeline, EPCOR may, at its
option, either leave the Pipeline in place or remove it provided this option remains
in accordance with the then-applicable legislation. If EPCOR leaves the Pipeline
in place EPCOR shall complete decommissioning procedures and comply with all
applicable legislation. In the event of removal, EPCOR shall conserve, reclaim
and remediate the portion of the Lands affected by the exercise of the rights herein
granted, insofar as it is practicable to do so and in accordance with the then-
applicable legislation, regulations and governmental directions. In the event of
removal or decommissioning, as the case may be, and subject to the then-
applicable legislation, EPCOR agrees to discharge this Agreement and the
Easement Rights in the appropriate Land Registry Office within 180 days from the
-4-
effective date of the removal of the Pipeline or the completion of the
decommissioning of the Pipeline.
5. OWNER'S USE OF LANDS
5.1 The Owner shall not use the Lands in any manner which may conflict with the
rights of EPCOR as granted to EPCOR pursuant to this Agreement.
5.2 The Owner shall not, without the prior written consent of EPCOR which consent
shall not be unreasonably withheld, stockpile, excavate, drill, install, erect,
construct or place above, through, on or under the Lands any pavement, building,
fence, pit, well, pipe, foundation, sidewalk, or other structure or improvement, or
do or permit to be done any mining, quarrying, land levelling or other work or
activity of any like or similar nature on, in or under the �ands. The Owner shall not
permit any of these activities to occur by others.
5.3 The Owner shall not alter the surface grade level of the Lands in any manner which
would affect the rights granted to EPCOR pursuant to this Agreement.
5.4 The Owner shall not plant any trees within the Lands. Existing trees on the Lands
shall not be removed without the prior written consent of the Owner.
5.5 The Owner shall not store or otherwise place toxic, hazardous, dangerous,
flammable, potentially explosive, noxious or waste substances or contaminants
(the "Hazardous Materials°) within the Lands, nor shall the Owner permit the
storage or placement by a third party of such substances within the Lands.
5.6 The Owner shall not be responsible for the maintenance of the Lands which will
allow EPCOR to utilize the rights granted in this Agreement and EPCOR is
authorized to maintain that portion of the Lands which it requires for its enjoyment
of the rights granted hereunder.
5.7 Subject to the foregoing and to the provisions of applicable legislation, regulations
and governmental directions, and provided that there is no interFerence with the
Easement Rights, the Owner shall have the right to use and enjoy the Lands. In
addition, EPCOR hereby grants permission to the Owner to cross the buried
Pipeline with ordinary farming vehicles as necessary in connection with ordinary
cultivation, as such vehicles are defined by EPCOR from time to time and
communicated in writing to the Owner at the address set out in Clause 9.
6. ENVIRONMENTAL OBLIGATIONS
6.1 EPCOR and the Owner shall comply with all applicable legislation, regulations and
governmental direction dealing with environmental issues, including the
Hazardous Materials (the "Environmental Laws"), related to the Lands.
6.2 The Owner represents and warrants that the Lands have not been used for the
storage of the Hazardous Materials. If EPCOR encounters any Hazardous
Materials in undertaking any work within the Lands, it shall give notice to the
Owner. At the expense of the Owner, EPCOR(or, at EPCOR's option,the Owner)
-5 -
shall effect the removal of such Hazardous Materials in accordance with the
Environmental Laws.
6.3 The responsibility of EPCOR and the Owner with respect to environmental
obligations, as required by this Agreement, shall continue to be enforceable during
and after the termination of this Agreement.
7. INDEMNITY AND COMPENSATION
7.1 EPCOR acknowledges and agrees that, in exercising any of its rights under this
Easement Agreement, it shall do so at its own risk and expense. Unless the loss
or damage is directly attributable to the gross negligence or willful misconduct of
the Owner, its elected o�cials, officers, employees and agents and those persons
for whom the Owner is responsible in law, EPCOR shall not have a claim against
the Owner for any loss or damage by whomsoever caused to EPCOR's property.
Except for the gross negligence or willful misconduct of the Owner, its employees,
agents, contractors, subcontractors and those persons for whom the Owner is
responsible in law, EPCOR shall:
(a) be liable to the Owner for; and
(b) indemnify and save harmless the Owner, its employees, agents,
contractors, subcontractors and those persons for whom the Owner is
responsible in law from and against
any and all claims, suits, actions, demands, expenses, damages and costs which
may be brought or made against the Owner or which the Owner may pay or incur
by reason of any breach,violation or non-performance by EPCOR of any covenant,
term or provision of this Agreement or by reason of the gross negligence or willful
misconduct of EPCOR, its agents, employees, contractors, subcontractors and
those persons for whom EPCOR is responsible in law, in the exercise of the rights
as granted to EPCOR under this Agreement. This indemnity shall be in addition to
and not in lieu of any insurance to be provided by EPCOR in accordance with this
Easement Agreement and shall survive this Easement Agreement.
8. QUIET ENJOYMENT
8.1 EPCOR by performing and observing the terms and conditions of this Agreement
shall and may peaceably hold and enjoy all the rights granted under this
Agreement,without hindrance, molestation or interruption on the part of the Owner
or any person claiming by, through, under, from or in trust for, the Owner.
9. ADDRESS FOR CONSENT OR NOTICE
9.1 Any written consent required to be obtained from, and any notices to be given to,
EPCOR or the Owner, as the case may be, pursuant to this Agreement shall be in
writing and obtained or effected by delivering the request or notice to EPCOR or
the Owner in person or by email, registered mail, postage prepaid, addressed as
follows:
-6 -
To EPCOR:
EPCOR Natural Gas Limited Partnership
Attention: General Manager
39 Beech Street East
Alymer ON N5H 3J6
Email:
To the Owner:
The Corporation of the Municipality of Kincardine
1475 Concession 5
Kincardine, ON
N2Z 2X6
Attention: Clerk
Email: ilawrieCa�kincardine.ca
A notice will be effective on: (i) the other party's receipt of it; or (ii) if sent by
registered mail, on the earlier of the other party's receipt of it and the seventh day
after mailing it.
10. DISPUTE RESOLUTION
10.1 In the event of a determination by either party in regard to a matter in dispute
between EPCOR and the Owner as to the interpretation or effect of any of the
terms or conditions of this Agreement, and where notice of such determination has
been delivered to EPCOR or the Owner, as the case may be, the determination
shall be conclusively deemed to have been accepted by the parties, unless,within
ten (10) days of the receipt of notice of the determination the party receiving the
notice gives written notice to the other party (the "Arbitration Notice") of their
desire to have the matter in dispute resolved by arbitration.
10.2 Within seven(7)days of receipt of the Arbitration Notice, the parties shall mutually
appoint an arbitrator (the "Arbitrator''). In the event that the parties shall fail to
agree on the appointment of the Arbitrator, then either party may, on written notice
to the other, apply to the Ontario Superior Court of Justice for the appointment of
the Arbitrator, pursuant to the Arbitration Act, 1991, S.O. 1991, c. 17, as amended
(the "Arbitration Act").
10.3 The seat of arbitration shall be Kincardine, Ontario.
10.4 The Arbitrator shall be directed to make its determination on the basis of a
presumption that this Agreement does not require amendments. Any
determination of the Arbitrator shall include a determination as to payment of the
costs of the arbitration. The determination of the Arbitrator shall be final and
binding on the parties and there shall be no right to appeal of such decision to the
courts.
-7 -
10.5 Except as modified by this Agreement, the provisions of the Arbitration Act and its
regulations or any successive legislation shall apply.
11. GENERAL
11.1 Entire Agreement
There are no conditions, either subsequent or precedent, except as stated in this
Agreement and in the letter of understanding between the Parties dated November
5, 2020 (the"LOU"). This Agreement and the LOU represent the entire agreement
between EPCOR and the Owner and no representations or warranties have been
made by EPCOR, except as stated in this Agreement and the LOU.
11.2 Governing Law
This Agreement shall be governed by and construed in accordance with the laws
in force in the Province of Ontario and the laws of Canada applicable therein.
11.3 Easement in Gross
The rights granted under this Agreement, including the Easement Rights, are
declared to be an easement in gross.
11.4 Further Assurances
The parties hereto will execute such further assurances of the Lands and the rights
granted under this Agreement as may be required.
11.5 Assignment
EPCOR shall, without the consent of the Owner, but upon seven (7) days prior
written notice, have the right to assign, in whole or in part, to any person,
partnership, trust, government, agency or corporation, the rights granted,
transferred and conveyed under this Agreement, including the Easement Rights,
provided that the assignee shall execute and deliver an assignment agreement in
a form to be provided by EPCOR, whereby the assignee agrees to assume and be
bound by the terms and conditions of this Agreement. Such notice shall include
the notice particulars as required by Clause 9.1.
11.6 EPCOR's use of Lands
EPCOR shall, without the consent of the Owner, have the right to grant the right to
use the Lands, in whole or in part, in accordance with the terms and conditions
contained in this Agreement to any person, partnership, trust, government, agency
or corporation.
11.7 Enurement
This Agreement, including all covenants contained herein and all rights granted
hereunder, is and shall be of the same force and effect for all intents and purposes
as a covenant running with the Lands and shall extend to, be binding upon and
-8-
enure for the benefit of the heirs, executors, administrators, successors-in-title and
assigns of the parties respectively.
11.8 Severability
If any term or condition of this Agreement is invalid or unenforceable under any
applicable statute or is declared invalid or unenforceable by a court of competent
jurisdiction, then such term or condition shall be deemed to be severed from this
Agreement, provided however, that the remainder of this Agreement shall not be
affected, shall continue in full force and effect and each remaining term and
condition shall be valid and be enforced to the fullest extent permitted by law.
11.9 Additional Taxes
EPCOR agrees that no taxes, rates, assessments, charges, levies or impositions
of any kind or nature of any governmental authority. Including without limitation
property taxes on the pipeline, shall be payable by or placed upon the Owner in
relation to any use of the Lands by EPCOR pursuant to this Agreement, and if any
such taxes, rates, assessments, charges, levies or impositions shall be levied,
imposed, or placed, EPCOR shall make payment thereof. All taxes or
assessments in the nature of sales taxes, good and services taxes or value added
taxes which may be charged, levied or assessed as a result of this Agreement,
whether or not such taxes are charged, levied or assessed as against the Owner,
shall be the responsibility of EPCOR, and EPCOR shall on written demand by the
Owner, pay to the Owner any and all such taxes.
11.10 Outstanding Charges, Taxes, Liens, etc.
Notwithstanding any other provision in this Agreement, if EPCOR determines that:
(a) there are outstanding charges, taxes, builders' liens, writs of execution,
judgments or other encumbrances which are registered against the Lands;
or
(b) there are any overdue amounts outstanding under any agreement for sale,
mortgage or other financial encumbrance that is registered against the
Lands;
EPCOR may, but is not obligated to, pay all or a portion of the compensation or
other amounts payable under this Agreement to the holder of such charge, lien,
writ of execution, judgment, mortgage or other financial encumbrance, or to such
vendor or mortgagee to satisfy and discharge such encumbrance or to obtain a
postponement from the encumbrance holder. The payment of any amount to such
third party shall be deemed to be payment of such amount to the Owner. For
greater certainty, EPCOR shall not be required to obtain the Owner's consent prior
to making such payment. EPCOR shall provide to the Owner written confirmation
of any such payments within thirty (30) days of making such payments.
-9 -
11.11 Sole Remedy
It is understood and agreed that notwithstanding any other provision in this
Agreement and notwithstanding any rights that any person having an interest may
have in law or in equity, should EPCOR fail to pay any payments payable
hereunder, the sole remedy of any such person having an interest shall be to
recover from EPCOR such amount and any interest payable thereon, and in no
event shall such person having an interest for whatever reason, interfere with,
hinder, molest or interrupt EPCOR in its enjoyment of any of the rights granted,
transferred and conveyed under this Agreement, including the Easement Rights.
11.12 Personallnformation
The Owner consents to the collection and use of its personal information within
this Agreement. EPCOR collects this type of personal information for the purposes
of general land rights acquisition and regulatory disclosure. The Owner consents
to the collection, use and disclosure of its personal information for these legitimate
business purposes in relation to land matters of EPCOR. The Owner is a municipal
corporation incorporated pursuant to the Municipal Act, 2001, S.O. 2001, c. 25, as
amended and is subject to the Municipal Freedom of Information and Protection of
Privacy Act, R.S.O. 1990, c. M.56, as amended ("MIFFPA"). EPCOR agrees that
MIFFPA applies to all information or records within EPCOR's custody or control
that are collected or created specifically for the purposes of this Agreement.
11.13 Survival of Obligations
Any term or provision in this Agreement, which, in order to be given its fullest
intended effect, must extend past the expiration or termination of this Agreement
will survive the expiration or termination of this Agreement, including Articles 6, 7
and 10.
11.14 Insurance
Throughout the term of this Agreement, the Owner shall maintain in full force and
effect insurance coverage to the levels of a reasonable owner.
Throughout the term of this Agreement, EPCOR will maintain in full force and effect
the following insurance:
(a) Commercial General Liabiliry insurance in an amount of not less than
$10,000,000.00 per occurrence for bodily injury including death and/or
property damage, which will include the following extensions: contractual
liability, non-owned automobile, products and completed operations,
broad form property damage, sudden and accidental pollution liability,
cross liability and/or severability of interest, contingent employer's liability,
and where applicable no exclusion for excavation, collapse, shoring and
underpinning; and
(b) Commercial Automobile Liability insurance covering all owned, leased or hired
licensed motor vehicles used in connection with the Lands with a combined
- 10 -
limit of not less than $10,000,000.00 per occurrence for bodily injury including
death and/or property damage.
(c) An environmental impairment liability policy with a limit of ten million dollars
($10,000,000)per occurrence to include the following:
(i) physical damage to property including loss of use and the prevention,
control and clean-up of land,the atmosphere or any watercourse or body
of water;
(ii) gradual or sudden and accidental pollution for events such as �re,
explosion or a sudden spill, as well as seepage over time; and
(iii) first and third-party clean-up expenses, bodily injury and property
damage arising from a pollution event.
All insurance policies required to be held by EPCOR under this Agreement:
(a) must provide the Owner with 30 days written notice of cancellation;
(b) where applicable, must be primary and not contributory with, or in excess
of, any other insurance carried by the Owner;
(c) may use primary andlor umbrella liability insurance to achieve required
limits; and
(d) EPCOR will be responsible for payment of all premiums and deductible
amounts relating to the insurance policies required to be held by EPCOR
under this Agreement.
11.15 Costs of Registration
Any costs related to the registration of document with the appropriate land registry
office shall be the sole responsibility of EPCOR.
11.16 Minor Changes for Reference Plan
The parties agree that the Agreement may be executed without completion of the
Reference Plan in Section 1.1 hereof. Upon completion of the Reference Plan, the
parties agree that this Agreement may be modified to include insertion of the
Reference Plan.
11.17 In this Agreement:
11.17.1 the word "shall" is to be read and interpreted as mandatory;
11.17.2 the word "may" is to be read and interpreted as permissive; and
11.17.3 the word "Owner" shall be read and interpreted as meaning an
individual, a partnership, a corporation, a trust, an unincorporated
organization, a government, or any department or agency thereof, and
- 11 -
the heirs, executors, administrators or other legal representatives of
any individual.
11.18 Counterparts
This Agreement may be executed in any number of counterparts and all of which
taken together will constitute one and the same instrument. All parties agree that
this Agreement may be transmitted by telecopier or electronic transmission via
email and that the reproduction of signatures by way of telecopier or electronic
transmission via email were executed originals will be treated as though such
reproduction were executed originals and each party undertakes to provide the
other with a copy of this Agreement bearing original signatures within a reasonable
time after written request therefore.
IN WITNESS WHEREOF EPCOR AND THE OWNER HAVE EXECUTED THIS AGREEMENT
ON THE t�DAY OF -,����n`�� , 2021.
EPCOR: EPCOR NATURAL GAS LIMITED
PARTNERSHIP, by its general partner
EPCOR ONTARIO UTILITIES INC.
f �
. �"��
Per. c/s
Name: ,�,�L �'=�C=�{I ,./'-�,�,�,,,,,��--`.c.��=Z—
Position���v�ti� 4'�,t,,,�r-���"a'�� �,hl.t�-
��'�y �.,�-.c,�'�l.:�
I have authority to bind the Corporation
OWNER: THE CORPORATION OF THE
MUNICIPALITY OF KINCARDINE
r---
Per:
Gerry ver, Mayor
Pe :
aron Chambers, CAO
We have authority to bind the Corporation.
SCHEDULE "A"
LANDS
PCL 47-5 SEC TWP OF KINCARDINE CON A; PT LT 48 CON A KINCARDINE PT 1, 3R7842;
KINCARDINE being PIN 33293—0188(LT)
EPCOR UTILITIES N
PRELIMINARY PROPERTY SKETCH
EPC�R SOUTH BRUCE NAT�R�4L ULE AIPELINE PROJECT W E
PIN 33293-0188
PCl47S SEC TWP OF KINCARDINE CON A,PT LT 48 CON A S
KINCARDINE PT 1,3R7842;KINCARDINE
SURFACE LAND AGENT OWNER(S) AREA(S)
PROPERTY MEA: 0.363 Ac 1,471 m2
THECORPORATIONOFTHEMUNICIPALRYOfKINCARDINE AREAREOUIRED� D.037Ac 148m2
SIGNED ON
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Comments/Notes:
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Non-Maintenance Easement Agreement
PIPELINE EASEMENT
THIS AGREEMENT made the_day of , 2021.
BETWEEN:
EPCOR NATURAL GAS LIMITED PARTNERSHIP
("EPCOR")
- and -
THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE (the "Owner")
WHEREAS:
A. The Owner is the registered owner of an estate in fee simple, subject to such
encumbrances, liens and interests as are at the date hereof set forth in the parcel register,
in the lands situated in the Province of Ontario and legally described as:
PIN 33293-0133
PCL PLAN-2 SEC M2; BLK O PL M2; KINCARDINE
B. The Owner has agreed to grant to EPCOR a right-of-way and easement across all or a
po�tion of the Lands (as defined below) in accordance with the terms and conditions
contained in this Agreement.
IN CONSIDERATION OF the mutual covenants and agreements set forth herein and for other
good and valuable consideration, the receipt and sufficiency of which is acknowledged by each
of the parties, and in consideration of the payment of the Fee (as defined below) by EPCOR to
the Owner, EPCOR and the Owner agree as follows:
1. GRANT
1.1 The Owner hereby grants, conveys and transfers unto EPCOR a non-exclusive
right, license, liberty, privilege and easement for a term of 21 years' less a day on,
over, across, along, in, under and through that portion of the Lands (as defined
below) outlined in red and/or shown as cross-hatched on the attached Schedule
"A" and described as follows those parts of:
PIN 33293-0133
PCL PLAN-2 SEC M2; BLK O PL M2; KINCARDINE;
being parts • on Reference Plan •)(the"Lands").
to lay down, construct, operate, maintain, inspect, patrol (including aerial patrol),
alter, relocate, remove, replace, reconstruct and repair a line of pipe together with
all facilities or works of EPCOR useful in connection with or incidental to its
undertaking, including, but without limiting the generality of the foregoing, all such
pipes, drips, valves, fittings, connections, meters, cathodic protection equipment
and other equipment and appurtenances, whether or not similar to the foregoing,
as may be useful or convenisnt in connection therewith or incidental thereto for the
-2 -
' carriage, transmission,conveyance,transportation and handling of oil, natural and
artificial gas and other gaseous or liquid hydrocarbons and any product or by-
product thereof (such line of pipe together with such related facilities or works
being referred to collectively as the "Pipeline"). Notwithstanding anything else
herein, the Owner shall not grant any of the foregoing rights to any other person
without the prior written consent of EPCOR which shall not be unreasonably
withheld.
2. FEE
2.1 Upon the execution of this Agreement by EPCOR and the Owner, EPCOR shall
pay to the Owner the sum of One Dollar ($1.00) exclusive of Harmonized Sales
Tax(the"Fee"), the receipt of which is adcnowledged by the Owner. The payment
of the Fee by EPCOR is the sole consideration and inducement for the execution
by the Owner of this Agreement and is the total compensation payable by EPCOR
to the Owner for the right to use the Lands as stated in this Agreement.
3. RIGHT OF ACCESS
3.1 EPCOR shall have the right at any time and from time to time to do whatever may
be required for the enjoyment of the rights granted under this Agreement, including
the removal of any boulder or rock or the trimming and removal of all trees, shrubs
and other vegetation on, over, across, along, in, under and through the Lands.
3.2 Upon execution of this Agreement by EPCOR and the Owner, EPCOR may
ingress and egress at any and all times on, over, along, across, along, in, under
and through the Lands with its servants, agents, employees, contractors and
subcontractors (collectively, the "Authorized Representatives"), on foot and/or
with vehicles, supplies, machinery and equipment, for all purposes useful or
convenient in connection with or incidental to the exercise and enjoyment of the
rights granted pursuant to this Agreement.
3.3 EPCOR and its Authorized Representatives shall have the right of ingress and
egress from the Lands at any and all times on, over across, along, in, under and
through the Lands for the purposes of exercising the rights granted under this
Agreement. This right of access shall be used only in cases of necessity or
emergency, as determined by EPCOR in EPCOR's sole and absolute discretion.
EPCOR shall pay reasonable compensation to the Owner of the Lands for any
damage caused by EPCOR and its Authorized Representatives in the exercise of
the right of access as granted to EPCOR under this Clause 3.3.
3.4 The rights, licenses, liberties, privileges and easements specifically described in
Clauses 1 and 3 are being referred to collectively as the"Easement Rights".
4. PIPELINE
4.1 Notwithstanding any rule of law or equity to the contrary, the Pipeline shall at all
times remain a chattel and the personal property of EPCOR or its assigns and shall
not become part of the Lands, notwithstanding that it may be annexed or affixed
, . __,..t.LL.���;
to the Lands or abandoned by EPCOR.
-3 -
4.2 EPCOR shall install, construct, operate and maintain the Pipeline in a responsible
manner so as to minimize damage to the Lands and shall, where practicable, after
any such work restore the Lands to substantially its original level and condition,
save and except for any soil rise above grade to allow for soil settlement (the
"Restoration Work"). EPCOR shall not be responsible for any damages caused
by subsidence after levelling is completed, provided the subsidence does not occur
as a result of negligence on the part of EPCOR. Notwithstanding the foregoing, or
Clause 7.1, EPCOR shall only be obligated to compensate the Owner for damage
to buildings or improvements that may be placed within the Lands, and arising from
the exercise by EPCOR of its rights under this Agreement, if EPCOR has given its
prior written consent pursuant to Clause 5.2 to the placement of such buildings or
improvements within the Lands.
4.3 If EPCOR has not commenced the Restoration Work within a period of ninety(90)
days following completion of the Pipeline, the Owner may after thirty(30)days prior
written notice, complete the Restoration Work, in accordance with all applicable
requirements including TSSA requirements and if such requirements must be
completed by a natural gas utility the Owner shall not complete any portion of the
Restoration Work governed by those requirements, provided there is no
interference with the Easement Rights. EPCOR shall pay to the Owner within
fifteen (15) business days following demand, all reasonable amounts paid by the
Owner in respect of such Restoration Work.
4.4 EPCOR shall have the right to temporarily fence and use such portions of the
Lands as may in its opinion be required. If at any time EPCOR shall require
temporary fencing for maintenance or operational reasons, such fencing shall be
temporary and EPCOR shall obtain the prior written consent of the Owner, acting
reasonably, as to the type, term and location of any fencing and shall locate such
temporary fencing insofar as may be practicable so to do, in such a fashion as to
provide a minimum of inconvenience to the Owner. EPCOR shall furnish to the
Owner a plan of the intended location. EPCOR shall within a period of thirty (30)
days following completion of the Pipeline, compensate the Owner for any
inconvenience caused to the Owner and for all damage occurring as a result of
fencing any such portion of the Lands.
4.5 EPCOR may at any time for whatsoever reason or cause abandon the Pipeline in
accordance with the then-applicable legislation, regulations and governmental
directions. In the event of the abandonment of the Pipeline, EPCOR may, at its
option, either leave the Pipeline in place or remove it provided this option remains
in accordance with the then-applicable legislation. If EPCOR leaves the Pipeline
in place EPCOR shall complete decommissioning procedures and comply with all
applicable legislation. In the event of removal, EPCOR shall conserve, reclaim
and remediate the portion of the Lands affected by the exercise of the rights herein
granted, insofar as it is practicable to do so and in accordance with the then-
applicable legislation, regulations and governmental directions. In the event of
removal or decommissioning, as the case may be, and subject to the then-
applicable legislation, EPCOR agrees to discharge this Agreement and the
Easement Rights in the appropriate Land Registry Office within 180 days from the
effective date of the removal of the Pipeline or the completion of the
decommissioning of the Pipeline.
-4-
5. OWNER'S USE OF LANDS
5.1 The Owner shall not use the Lands in any manner which may conflict with the
rights of EPCOR as granted to EPCOR pursuant to this Agreement.
5.2 The Owner shall not, without the prior written consent of EPCOR which consent
shall not be unreasonably withheld, stockpile, excavate, drill, install, erect,
construct or place above, through, on or under the Lands any pavement, building,
fence, pit, well, pipe, foundation, sidewalk, or other structure or improvement, or
do or permit to be done any mining, quarrying, land levelling or other work or
activity of any like or similar nature on, in or under the Lands. The Owner shall not
permit any of these activities to occur by others.
5.3 The Owner shall not alter the surface grade level of the Lands in any manner which
would affect the rights granted to EPCOR pursuant to this Agreement.
5.4 The Owner shall not plant any trees within the Lands. Existing trees on the Lands
shall not be removed without the prior written consent of the Owner.
5.5 The Owner shall not store or otherwise place toxic, hazardous, dangerous,
flammable, potentially explosive, noxious or waste substances or contaminants
(the "Hazardous Materials") within the Lands, nor shall the Owner permit the
storage or placement by a third party of such substances within the Lands.
5.6 The Owner shall not be responsible for the maintenance of the Lands which will
allow EPCOR to utilize the rights granted in this Agreement and EPCOR is
authorized to maintain that portion of the Lands which it requires for its enjoyment
of the rights granted hereunder.
5.7 Subject to the foregoing and to the provisions of applicable legislation, regulations
and governmental directions, and provided that there is no interference with the
Easement Rights, the Owner shall have the right to use and enjoy the Lands. In
addition, EPCOR hereby grants permission to the Owner to cross the buried
Pipeline with ordinary farming vehicles as necessary in connection with ordinary
cultivation, as such vehicles are defined by EPCOR from time to time and
communicated in writing to the Owner at the address set out in Clause 9.
6. ENVIRONMENTAL OBLIGATIONS
6.1 EPCOR and the Owner shall comply with all applicable legislation, regulations and
governmental direction dealing with environmental issues, including the
Hazardous Materials (the"Environmental Laws"), related to the Lands.
6.2 The Owner represents and warrants that the Lands have not been used for the
storage of the Hazardous Materials. If EPCOR encounters any Hazardous
Materials in undertaking any work within the Lands, it shall give notice to the
Owner. At the expense of the Owner, EPCOR (or, at EPCOR's option,the Owner)
shall effect the removal of such Hazardous Materials in accordance with the
Environmental Laws.
-5 -
6.3 The responsibility of EPCOR and the Owner with respect to environmental
obligations, as required by this Agreement, shall continue to be enforceable during
and after the termination of this Agreement.
7. INDEMNITY AND COMPENSATION
7.1 EPCOR acknowledges and agrees that, in exercising any of its rights under this
Easement Agreement, it shall do so at its own risk and expense. Unless the loss
or damage is directly attributable to the gross negligence or willful misconduct of
the Owner, its elected officials, officers, employees and agents and those persons
for whom the Owner is responsible in law, EPCOR shell not have a claim against
the Owner for any loss or damage by whomsoever caused to EPCOR's property.
Except for the gross negligence or willful misconduct of the Owner, its employees,
agents, contractors, subcontractors and those persons for whom the Owner is
responsible in law, EPCOR shall:
(a) be liable to the Owner for; and
(b) indemnify and save harmless the Owner, its employees, agents,
contractors, subcontractors and those persons for whom the Owner is
responsible in law from and against
any and all claims, suits, actions, demands, expenses, damages and costs which
may be brought or made against the Owner or which the Owner may pay or incur
by reason of any breach,violation or non-performance by EPCOR of any covenant,
term or provision of this Agreement or by reason of the gross negligence or willful
misconduct of EPCOR, its agents, employees, contractors, subcontractors and
those persons for whom EPCOR is responsible in law, in the exercise of the rights
as granted to EPCOR under this Agreement. This indemnity shall be in addition to
and not in lieu of any insurance to be provided by EPCOR in accordance with this
Easement Agreement and shall survive this Easement Agreement.
8. QUIET ENJOYMENT
8.1 EPCOR by performing and observing the terms and conditions of this Agreement
shall and may peaceably hold and enjoy all the rights granted under this
Agreement,without hindrance, molestation or interruption on the part of the Owner
or any person claiming by, through, under, from or in trust for, the Owner.
9. ADDRESS FOR CONSENT OR NOTICE
9.1 Any written consent required to be obtained from, and any notices to be given to,
EPCOR or the Owner, as the case may be, pursuant to this Agreement shall be in
writing and obtained or effected by delivering the request or notice to EPCOR or
the Owner in person or by email, registered mail, postage prepaid, addressed as
follows:
-6 -
To EPCOR:
EPCOR Natural Gas Limited Partnership
Attention: General Manager
39 Beech Street East
Alymer ON N5H 3J6
Email:
To the Owner:
The Corporation of the Municipality of Kincardine
1475 Concession 5
Kincardine, ON
N2Z 2X6
Attention: Clerk
Email: jlawrieCa�kincardine.ca
A notice will be effective on: (i) the other party's receipt of it; or (ii) if sent by
registered mail, on the earlier of the other party's receipt of it and the seventh day
after mailing it.
10. DISPUTE RESOLUTION
10.1 In the event of a determination by either party in regard to a matter in dispute
between EPCOR and the Owner as to the interpretation or effect of any of the
terms or conditions of this Agreement, and where notice of such determination has
been delivered to EPCOR or the Owner, as the case may be, the determination
shall be conclusively deemed to have been accepted by the parties, unless,within
ten (10) days of the receipt of notice of the determination the party receiving the
notice gives written notice to the other party (the "Arbitration Notice") of their
desire to have the matter in dispute resolved by arbitration.
10.2 Within seven (7)days of receipt of the Arbitration Notice, the parties shall mutually
appoint an arbitrator (the "Arbitrator"). In the event that the parties shall fail to
agree on the appointment of the Arbitrator, then either party may, on written notice
to the other, apply to the Ontario Superior Court of Justice for the appointment of
the Arbitrator, pursuant to the Arbitration Act, 1991, S.O. 1991, c. 17, as amended
(the "Arbitration Act").
10.3 The seat of arbitration shall be Kincardine, Ontario.
10.4 The Arbitrator shall be directed to make its determination on the basis of a
presumption that this Agreement does not require amendments. Any
determination of the Arbitrator shall include a determination as to payment of the
costs of the arbitration. The determination of the Arbitrator shall be final and
binding on the parties and there shall be no right to appeal of such decision to the
courts.
-7 -
10.5 Except as modified by this Agreement, the provisions of the Arbitration Act and its
regulations or any successive legislation shall apply.
11. GENERAL
11.1 Entire Agreement
There are no conditions, either subsequent or precedent, except as stated in this
Agreement and in the letter of understanding between the Parties dated November
5, 2020(the"LOU"). This Agreement and the LOU represent the entire agreement
between EPCOR and the Owner and no representations or warranties have been
made by EPCOR, except as stated in this Agreement and the LOU.
11.2 Governing Law
This Agreement shall be governed by and construed in accordance with the laws
in force in the Province of Ontario and the laws of Canada applicable therein.
11.3 Easement in Gross
The rights granted under this Agreement, including the Easement Rights, are
declared to be an easement in gross.
11.4 Further Assurances
The parties hereto will execute such further assurances of the Lands and the rights
granted under this Agreement as may be required.
11.5 Assignment
EPCOR shall, without the consent of the Owner, but upon seven (7) days prior
written notice, have the right to assign, in whole or in part, to any person,
partnership, trust, government, agency or corporation, the rights granted,
transferred and conveyed under this Agreement, including the Easement Rights,
provided that the assignee shall execute and deliver an assignment agreement in
a form to be provided by EPCOR, whereby the assignee agrees to assume and be
bound by the terms and conditions of this Agreement. Such notice shall include
the notice particulars as required by Clause 9.1.
17.6 EPCOR's use of Lands
EPCOR shall, without the consent of the Owner, have the right to grant the right to
use the Lands, in whole or in part, in accordance with the terms and conditions
contained in this Agreement to any person, partnership,trust, government, agency
or corporation.
1'1.7 Enurement
This Agreement, including all covenants contained herein and all rights granted
hereunder, is and shall be of the same force and effect for all intents and purposes
as a covenant running with the Lands and shall extend to, be binding upon and
-8 -
enure for the benefit of the heirs, executors,administrators, successors-in-title and
assigns of the parties respectively.
11.8 Severability
If any term or condition of this Agreement is invalid or unenforceable under any
applicable statute or is declared invalid or unenforceable by a court of competent
jurisdiction, then such term or condition shall be deemed to be severed from this
Agreement, provided however, that the remainder of this Agreement shall not be
affected, shall continue in full force and effect and each remaining term and
condition shall be valid and be enforced to the fullest extent permitted by law.
11.9 Additional Taxes
EPCOR agrees that no taxes, rates, assessments, charges, levies or impositions
of any kind or nature of any governmental authority. Including without limitation
prope�ty taxes on the pipeline, shall be payable by or placed upon the Owner in
relation to any use of the Lands by EPCOR pursuant to this Agreement, and if any
such taxes, rates, assessments, charges, levies or impositions shall be levied,
imposed, or placed, EPCOR shall make payment thereof. All taxes or
assessments in the nature of sales taxes, good and services taxes or value added
taxes which may be charged, levied or assessed as a result of this Agreement,
whether or not such taxes are charged, levied or assessed as against the Owner,
shall be the responsibility of EPCOR, and EPCOR shall on written demand by the
Owner, pay to the Owner any and all such taxes.
11.10 Outstanding Charges, Taxes, Liens, etc.
Notwithstanding any other provision in this Agreement, if EPCOR determines that:
(a) there are outstanding charges, taxes, builders' liens, writs of execution,
judgments or other encumbrances which are registered against the Lands;
or
(b) there are any overdue amounts outstanding under any agreement for sale,
mortgage or other financial encumbrance that is registered against the
Lands;
EPCOR may, but is not obligated to, pay all or a portion of the compensation or
other amounts payable under this Agreement to the holder of such charge, lien,
writ of execution,judgment, mortgage or other financial encumbrance, or to such
vendor or mortgagee to satisfy and discharge such encumbrance or to obtain a
postponement from the encumbrance holder. The payment of any amount to such
third party shall be deemed to be payment of such amount to the Owner. For
greater certainty, EPCOR shall not be required to obtain the Owner's consent prior
to making such payment. EPCOR shall provide to the Owner written confirmation
of any such payments within thirty(30)days of making such payments.
_ _ . _
-9 -
11.11 Sole Remedy
It is understood and agreed that notwithstanding any other provision in this
Agreement and notwithstanding any rights that any person having an interest may
have in law or in equity, should EPCOR fail to pay any payments payable
hereunder, the sole remedy of any such person having an interest shall be to
recover from EPCOR such amount and any interest payable thereon, and in no
event shall such person having an interest for whatever reason, interfere with,
hinder, molest or interrupt EPCOR in its enjoyment of any of the rights granted,
transferred and conveyed under this Agreement, including the Easement Rights.
11.12 Personallnformation
The Owner consents to the collection and use of its personal information within
this Agreement. EPCOR collects this type of personal information for the purposes
of general land rights acquisition and regulatory disclosure. The Owner consents
to the collection, use and disclosure of its pe�sonal information for these legitimate
business purposes in relation to land matters of EPCOR. The Owner is a municipal
corporation incorporated pursuant to the Municipal Act, 2001, S.O. 2001, c. 25, as
amended and is subject to the Municipal Freedom of Informafion and Protection of
PrivacyAct, R.S.O. 1990, c. M.56, as amended ("MIFFPA"). EPCOR agrees that
MIFFPA applies to all information or records within EPCOR's custody or control
that are collected or created specifically for the purposes of this Agreement.
11.13 Survival of Obligations
Any term or provision in this Agreement, which, in order to be given its fullest
intended effect, must extend past the expiration or termination of this Agreement
will survive the expiration or termination of this Agreement, including Articles 6, 7
and 10.
11.14 Insurance
Throughout the term of this Agreement, the Owner shall maintain in full force and
effect insurance coverage to the levels of a reasonable owner.
Throughout the term of this Agreement, EPCOR will maintain in full force and effect
the following insurance:
(a) Commercial General Liability insurance in an amount of not less than
$10,000,000.00 per occurrence for bodily injury including death and/or
property damage, which will include the following extensions: contractual
liability, non-owned automobile, products and completed operations,
broad form property damage, sudden and accidental pollution liability,
cross liability and/or severability of interest, contingent employer's liability,
and where applicable no exclusion for excavation, collapse, shoring and
underpinning; and
(b) Commercial Automobile Liability insurance covering all owned, leased or hired
licensed motor vehicles used in connection with the Lands with a combined
- 10 -
limit of not less than $10,000,000.00 per occurrence for bodily injury including
death and/or property damage.
(c) An environmental impairment liability policy with a limit of ten million dollars
($10,000,000) per occurrence to include the following:
(i) physical damage to property including Ioss of use and the prevention,
control and clean-up of land, the atmosphere or any watercourse or body
of water;
(ii) gradual or sudden and accidental pollution for events such as fire,
explosion or a sudden spill, as well as seepage over time; and
(iii) first and third-party clean-up expenses, bodily injury and property
damage arising from a pollution event.
All insurance policies required to be held by EPCOR under this Agreement:
(a) must provide the Owner with 30 days written notice of cancellation;
(b) where applicable, must be primary and not contributory with, or in excess
of, any other insurance carried by the Owner;
(c) may use primary and/or umbrella liability insurance to achieve required
limits; and
(d) EPCOR will be responsible for payment of all premiums and deductible
amounts relating to the insurance policies required to be held by EPCOR
under this Agreement.
11.15 Costs of Registration
Any costs related to the registration of document with the appropriate land registry
office shall be the sole responsibility of EPCOR.
11.16 Minor Changes for Reference Plan
The parties agree that the Agreement may be executed without completion of the
Reference Plan in Section 1.1 hereof. Upon completion of the Reference Plan,the
parties agree that this Agreement may be modified to include insertion of the
Reference Plan.
11.17 In this Agreement:
11.17.1 the word "shall" is to be read and interpreted as mandatory;
11.17.2 the word "may" is to be read and interpreted as permissive; and
11.17.3 the word "Owner" shall be read and interpreted as meaning an
individual, a partnership, a corporation, a trust, an unincorporated
organization, a government, or any department or agency thereof, and
- 11 -
the heirs, executors, administrators or other legal representatives of
any individual.
11.18 Counterparts
This Agreement may be executed in any number of counterparts and all of which
taken together will constitute one and the same instrument. All parties agree that
this Agreement may be transmitted by telecopier or electronic transmission via
email and that the reproduction of signatures by way of telecopier or electronic
transmission via email were executed originals will be treated as though such
reproduction were executed originals and each party undertakes to provide the
other with a copy of this Agreement bearing original signatures within a reasonable
time after written request therefore.
IN WITNESS WHEREOF EPCOR AND THE OWNER HAVE EXECUTED THIS AGREEMENT
ON THE�DAY OF ��C , 2021.
EPCOR: EPCOR NATURAL GAS LIMITED
PARTNERSHIP, by its general partner
EPCOR ONTARIO UTILITIES INC.
L� 4 � ti�
Per: `����`�..,"�' c/s
Name:/ ,�� ���-�'�`�c--�—�",�;c�L-
Position:C1�.,�-rt�. r'�'`s����2j ��h��
4.�'� c,`y`�j/fi'Ls'
I have authority to bind the Corporation
OWNER: THE CORPORATION OF THE
MUNICIPALITY OF KINCARDINE
r--
Per:
Gerr GI ver, Mayor
Per.
Sharon Chambers, CAO
We have authority to bind the Corporation.
SCHEDULE "A"
LANDS
PCL PLAN-2 SEC M2; BLK O PL M2; KINCARDINE being PIN 33293—01 33(LT�
EPCOR UTILITIES N
PRELIMINARY PROPERTY SKETCH
EPC�R SOUTHBRUCENA CEDULEAIPELINEPROJECT W E
PIN 33293-0133
PCL PLAN-2 SEC M2,BLK 0 PL M2�,KINCARDINE S
SURFACE LANDAGENT� OWNER(S). AI3EA(S).
PROPERTY AREA 5.�28 Ae 2t,561 m2
THECORPORATIONOFTHETOWNSMIPOFpNCAROWE AREAREWIIRED� 0.073Ac 2YSm7
SIGNED ON
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Comments/Notes:
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LEG E N D NOTE:
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Non-Maintenance Easement Agreement
PIPELINE EASEMENT
THIS AGREEMENT made the_day of , 2�21.
BETWEEN:
EPCOR NATURAL GAS LIMITED PARTNERSHIP
("EPCOR")
- and -
THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE (the "Owner")
WHEREAS:
A. The Owner is the registered owner of an estate in fee simpie, subject to such
encumbrances, liens and interests as are at the date hereof set forth in the parcel register,
in the lands situated in the Province of Ontario and legally described as:
PIN 33293-0634
PCL 47-6 SEC TWP OF KINCARDINE CON A; PT LT 48 CON A KINCARDINE PT 2, 3R7842;
KINCARDINE
B, The Owner has agreed to grant to EPCOR a right-of-way and easement across all or a
portion of the Lands (as defined below) in accordance with the terms and conditions
contained in this Agreement.
IN CONSIDERATION OF the mutual covenants and agreements set forth herein and for other
good and valuable consideration, the receipt and sufficiency of which is acknowledged by each
of the parties, and in consideration of the payment of the Fee (as defined below) by EPCOR to
the Owner, EPCOR and the Owner agree as follows:
1. GRANT
1.1 The Owner hereby grants, conveys and transfers unto EPCOR a non-exclusive
right, license, liberty, privilege and easement for a term of 21 years' less a day on,
over, across, along, in, under and through that portion of the Lands (as defined
below) outlined in red and/or shown as cross-hatched on the attached Schedule
"A" and described as follows those parts of:
PIN 33293-0634
PCL 47-6 SEC TWP OF KINCARDINE CON A; PT LT 48 CON A KINCARDINE PT 2,
3R7842; KINCARDINE;
being parts • on Reference Plan •](the"Lands").
to lay down, construct, operate, maintain, inspect, patrol (including aerial patrol),
alter, relocate, remove, replace, reconstruct and repai�a line of pipe together with
all facilities or works of EPCOR useful in connection with or incidental to its
undertaking, including, but without limiting the generality of the foregoing, all such
pipes, drips, valves, fittings, connections, meters, cathodic protection equipment
-2 -
and other equipment and appurtenances, whether or not similar to the foregoing,
as may be useful or convenient in connection therewith or incidental thereto for the
carriage,transmission, conveyance, transportation and handling of oil, natural and
a�tificial gas and other gaseous or liquid hydrocarbons and any p�oduct or by-
product thereof (such line of pipe together with such related facilities or works
being referred to collectively as the "Pipeline"). Notwithstanding anything else
herein, the Owner shall not grant any of the foregoing rights to any other person
without the prior written consent of EPCOR which shall not be unreasonably
withheld.
2. FEE
2.1 Upon the execution of this Agreement by EPCOR and the Owner, EPCOR shall
pay to the Owner the sum of One Dollar ($1.00) exclusive of Harmonized Sales
Tax (the"Fee"), the receipt of which is acknowledged by the Owner. The payment
of the Fee by EPCOR is the sole consideration and inducement for the execution
by the Owner of this Agreement and is the total compensation payable by EPCOR
to the Owner for the right to use the Lands as stated in this Agreement.
3. RIGHT OF ACCESS
3.1 EPCOR shall have the right at any time and from time to time to do whatever may
be required for the enjoyment of the rights granted under this Agreement, including
the removal of any boulder or rock or the trimming and removal of all trees, shrubs
and other vegetation on, over, across, along, in, under and through the Lands.
3.2 Upon execution of this Agreement by EPCOR and the Owner, EPCOR may
ingress and egress at any and all times on, over, along, across, along, in, under
and through the Lands with its servants, agents, employees, contractors and
subcontractors (collectively, the "Authorized Representatives"), on foot and/or
with vehicles, supplies, machinery and equipment, for all purposes useful or
convenient in connection with or incidental to the exercise and enjoyment of the
rights granted pursuant to this Agreement.
3.3 EPCOR and its Authorized Representatives shall have the right of ingress and
egress from the Lands at any and all times on, over across, along, in, under and
through the Lands for the purposes of exercising the rights granted under this
Agreement. This right of access shall be used only in cases of necessity or
emergency, as determined by EPCOR in EPCOR's sole and absolute discretion.
EPCOR shall pay reasonable compensation to the Owner of the Lands for any
damage caused by EPCOR and its Authorized Representatives in the exercise of
the right of access as granted to EPCOR under this Clause 3.3.
3.4 The rights, licenses, liberties, privileges and easements specifically described in
Clauses 1 and 3 are being referred to collectively as the "Easement Rights".
4. PIPELINE
4.1 Nofirvithstanding any rule of law or equity to the contrary, the Pipeline shall at all
times remain a chattel and the personal property of EPCOR or its assigns and shall
-3 -
not become part of the Lands, notwithstanding that it may be annexed or affixed
to the Lands or abandoned by EPCOR.
4.2 EPCOR shall install, construct, operate and maintain the Pipeline in a responsible
manner so as to minimize damage to the Lands and shall, where practicable, after
any such work restore the Lands to substantially its original level and condition,
sav;e and except for any soil rise above grade to allow for soil settlement (the
"Restoration Work"). EPCOR shall not be responsible for any damages caused
by subsidence after levelling is completed, provided the subsidence does not occur
as a result of negligence on the part of EPCOR. Notwithstanding the foregoing, or
Clause 7.1, EPCOR shall only be obligated to compensate the Owner for damage
to buildings or improvements that may be placed within the Lands, and arising from
the exercise by EPCOR of its rights under this Agreement, if EPCOR has given its
prior written consent pursuant to Clause 5.2 to the placement of such buildings or
improvements within the Lands.
4.3 If EPCOR has not commenced the Restoration Work within a period of ninety(90)
days following completion of the Pipeline,the Owner may after thirty(30)days prior
written notice, complete the Restoration Work, in accordance with all applicable
requirements including TSSA requirements and if such requirements must be
completed by a natural gas utility the Owner shall not complete any portion of the
Restoration Work governed by those requirements, provided there is no
interference with the Easement Rights. EPCOR shall pay to the Owner within
fifteen (15) business days following demand, all reasonable amounts paid by the
Owner in respect of such Restoration Work.
4.4 EPCOR shall have the right to temporarily fence and use such portions of the
Lands as may in its opinion be required. If at any time EPCOR shall require
temporary fencing for maintenance or operational reasons, such fencing shall be
temporary and EPCOR shall obtain the prior written consent of the Owner, acting
reasonably, as to the type, term and location of any fencing and shall locate such
temporary fencing insofar as may be practicable so to do, in such a fashion as to
provide a minimum of inconvenience to the Owner. EPCOR shall fumish to the
Owner a plan of the intended location. EPCOR shall within a period of thirty (30)
days following completion of the Pipeline, compensate the Owner for any
inconvenience caused to the Owner and for all damage occurring as a result of
fencing any such portion of the Lands.
4.5 EPCOR may at any time for whatsoever reason or cause abandon the Pipeline in
accordance with the then-applicable legislation, regulations and govemmental
directions. In the event of the abandonment of the Pipeline, EPCOR may, at its
option, either leave the Pipeline in place or remove it provided this option remains
in accordarice with the then-applicable legislation. If EPCOR leaves the Pipeline
in place EPCOR shall complete decommissioning procedures and comply with all
applicable legislation. In the event of removal, EPCOR shall conserve, reclaim
and remediate the portion of the Lands affected by the exercise of the rights herein
granted, insofar as it is practicable to do so and in accordance with the then-
applicable legislation, regulations and governmental directions. In the event of
removal or decommissioning, as the case may be, and subject to the then-
applicable legislation, EPCOR agrees to discharge this Agreement and the
Easement Rights in the appropriate Land Registry Office within 180 days from the
-4 -
effective date of the removal of the Pipeline or the completion of the
decommissioning of the Pipeline.
5. OWNER'S USE OF LANDS
5.1 The Owner shall not use the Lands in any manner which may conflict with the
rights of EPCOR as granted to EPCOR pursuant to this Agreement.
5.2 The Owner shall not, without the prior written consent of EPCOR which consent
shall not be unreasonably withheld, stockpile, excavate, drill, install, erect,
construct or place above, through, on or under the Lands any pavement, building,
fence, pit, well, pipe, foundation, sidewalk, or other structure or improvement, or
do or permit to be done any mining, quarrying, land levelling or other work or
activity of any like or similar nature on, in or under the Lands. The Owner shall not
permit any of these activities to occur by others.
5.3 The Owner shall not alter the surface grade level of the Lands in any manner which
would affect the rights granted to EPCOR pursuant to this Agreement.
5.4 The Owner shall not plant any trees within the Lands. Existing trees on the Lands
shall not be removed without the prior written consent of the Owner.
5.5 The Owner shall not store or otherwise place toxic, hazardous, dangerous,
flammable, potentially explosive, noxious or waste substances or contaminants
(the "Hazardous Materials") within the Lands, nor shall the Owner permit the
storage or placement by a third party of such substances within the Lands.
5.6 The Owner shall not be responsible for the maintenance of the Lands which will
allow EPCOR to utilize the rights granted in this Agreement and EPCOR is
authorized to maintain that portion of the Lands which it requires for its enjoyment
of the rights granted hereunder.
5.7 Subject to the foregoing and to the provisions of applicable legislation, regulations
and govemmental directions, and provided that there is no interference with the
Easement Rights, the Owner shall have the right to use and enjoy the Lands. In
addition, EPCOR hereby grants permission to the Owner to cross the buried
Pipeline with ordinary farming vehicles as necessary in connection with ordinary
cultivation, as such vehicles are defined by EPCOR from time to time and
communicated in writing to the Owner at the address set out in Clause 9.
6. ENVIRONMENTAL OBLIGATIONS
6.1 EPCOR and the Owner shall comply with all applicable legislation, regulations and
governmental direction dealing with environmental issues, including the
Hazardous Materials (the"Environmental Laws"), related to the Lands.
6.2 The Owner represents and warrants that the Lands have not been used for the
storage of the Hazardous Materials. If EPCOR encounters any Hazardous
Materials in undertaking any work within the Lands, it shall give notice to the
Owner. At the expense of the Owner, EPCOR (or, at EPCOR's option,the Owner)
- 5 -
shall effect the removal of such Hazardous Materials in accordance with the
Environmental Laws.
6.3 The responsibility of EPCOR and the Owner with respect to environmental
obligations, as required by this Agreement,shall continue to be enforceable during
and after the termination of this Agreement.
7. INDEMNITY AND COMPENSATION
7.1 EPCOR acknowledges and agrees that, in exercising any of its rights under this
Easement Agreement, it shall do so at its own risk and expense. Unless the loss
or damage is directly attributable to the gross negligence or willful misconduct of
the Owner, its elected officials, officers, employees and agents and those persons
for whom the Owner is responsible in law, EPCOR shall not have a claim against
the Owner for any loss or damage by whomsoever caused to EPCOR's property.
Except for the gross negligence or willful misconduct of the Owner, its employees,
agents, contractors, subcontractors and those persons for whom the Owner is
responsible in law, EPCOR shall:
(a) be liable to the Owner for; and
(b) indemnify and save harmless the Owner, its employees, agents,
contractors, subcontractors and those persons for whom the Owner is
responsible in law from and against
any and all claims, suits, actions, demands, expenses, damages and costs which
may be brought or made against the Owner or which the Owner may pay or incur
by reason of any breach,violation or non-performance by EPCOR of any covenant,
term or provision of this Agreement or by reason of the gross negligence or willful
misconduct of EPCOR, its agents, employees, contractors, subcontractors and
those persons for whom EPCOR is responsible in law, in the exercise of the rights
as granted to EPCOR under this Agreement. This indemnity shall be in addition to
and not in lieu of any insurance to be provided by EPCOR in accordance with this
Easement Agreement and shall survive this Easement Agreement.
8. QUIET ENJOYMENT
8.1 EPCOR by performing and observing the terms and conditions of this Agreement
shall and may peaceably hold and enjoy all the rights granted under this
Agreement,without hindrance, molestation or interruption on the part of the Owner
or any person claiming by, through, under, from or in trust for, the Owner.
9. ADDRESS FOR CONSENT OR NOTICE
9.1 Any written consent required to be obtained from, and any notices to be given to,
EPCOR or the Owner, as the case may be, pursuant to this Agreement shall be in
writing and obtained or effected by delivering the request or notice to EPCOR or
the Owner in person or by email, registered mail, postage prepaid, addressed as
follows:
-6 -
To EPCOR:
EPCOR Natural Gas Limited Partnership
Attention: General Manager
39 Beech Street East
Alymer ON N5H 3J6
Email:
To the Owner:
The Corporation of the Municipaliry of Kincardine
1475 Concession 5
Kincardine, ON
N2Z 2X6
Attention: Clerk
Email: jlawrieCcr�.kincardine.ca
A notice will be effective on: (i) the other party's receipt of it; or (ii) if sent by
registered mail, on the earlier of the other party's receipt of it and the seventh day
after mailing it.
10. DISPUTE RESOLUTION
10.1 In the event of a determination by either party in regard to a matter in dispute
between EPCOR and the Owner as to the interpretation or effect of any of the
terms or conditions of this Agreement, and where notice of such determination has
been delivered to EPCOR or the Owner, as the case may be, the deteRnination
shall be conclusively deemed to have been accepted by the parties, unless,within
ten (10) days of the receipt of notice of the determination the party receiving the
notice gives written notice to the other party (the "Arbitration Notice") of their
desire to have the matter in dispute resolved by arbitration.
10.2 Within seven (7)days of receipt of the Arbitration Notice, the parties shall mutually
appoint an arbitrator (the "Arbitrator"). In the event that the parties shall fail to
agree on the appointment of the Arbitrator, then either party may, on written notice
to the other, apply to the Ontario Superior Court of Justice for the appointment of
the Arbitrator, pursuant to the Arbitration Act, 1991, S.O. 1991, c. 17, as amended
{the "Arbitration Act").
10.3 The seat of arbitration shall be Kincardine, Ontario.
10.4 The Arbitrator shall be directed to make its determination on the basis of a
presumption that this Agreement does not require amendments. Any
determination of the Arbitrator shall include a determination as to payment of the
costs of the arbitration. The determination of the Arbitrator shall be final and
binding on the parties and there shall be no right to appeal of such decision to the
courts.
-7 -
10.5 Except as modified by this Agreement, the provisions of the Arbitration Act and its
regulations or any successive legislation shall apply.
11. GENERAL
11.1 Entire Agreement
There are no conditions, either subsequent or precedent, except as stated in this
Agreement and in the letter of understanding between the Parties dated November
5, 2020(the"LOU"). This Agreement and the LOU represent the entire agreement
between EPCOR and the Owner and no representations or warranties have been
made by EPCOR, except as stated in this Agreement and the LOU.
11.2 Governing Law
This Agreement shall be governed by and construed in accordance with the laws
in force in the Province of Ontario and the laws of Canada applicable therein.
11.3 Easement in Gross �
The rights granted under this Agreement, including the Easement Rights, are
declared to be an easement in gross.
11.4 Further Assurances
The parties hereto will execute such further assurances of the Lands and the rights
granted under this Agreement as may be required.
11.5 Assignment
EPCOR shall, without the c�nsent of the Owner, but upon seven (7) days prior
written notice, have the right to assign, in whole or in part, to any person,
partnership, trust, government, agency or corporation, the rights granted,
transferred and conveyed under this Agreement, including the Easement Rights,
provided that the assignee shall execute and deliver an assignment agreement in
a form to be provided by EPCOR, whereby the assignee agrees to assume and be
bound by the terms and conditions of this Agreement. Such notice shall include
the notice particulars as required by Clause 9.1.
11.6 EPCOR's use of Lands
EPCOR shall, without the consent of the Owner, have the right to grant the right to
use the Lands, in whole or in part, in accordance with the terms and conditions
contained in this Agreement to any person, partnership,trust, government,agency
or corporation.
11.7 Enurement
This Agreement, including all covenants contained herein and all rights granted
hereunder, is and shall be of the same force and effect for all intents and purposes
as a covenant running with the Lands and shall extend to, be binding upon and
-8 -
enure for the benefit of the heirs, executors, administrators, successors-in-title and
assigns of the parties respectively.
11.8 Severability
If any term or condition of this Agreement is invalid or unenforceable under any
applicable statute or is declared invalid or unenforceable by a court of competent
jurisdiction, then such term or condition shall be deemed to be severed from this
Agreement, provided however, that the remainder of this Agreement shall not be
affected, shall continue in full force and effect and each remaining term and
condition shall be valid and be enforced to the fullest extent permitted by law.
11.9 Additional Taxes
EPCOR agrees that no taxes, rates, assessments, charges, levies or impositions
of any kind or nature of any governmental authority. Including without limitation
property taxes on the pipeline, shall be payable by or placed upon the Owner in
relation to any use of the Lands by EPCOR pursuant to this Agreement, and if any
such taxes, rates, assessments, charges, levies or impositions shall be levied,
imposed, or placed, EPCOR shall make payment thereof. All taxes or
assessments in the nature of sales taxes, good and services taxes or value added
taxes which may be charged, levied or assessed as a result of this Agreement,
whether or not such taxes are charged, levied or assessed as against the Owner,
shall be the responsibility of EPCOR, and EPCOR shall on written demand by the
Owner, pay to the Owner any and all such taxes.
11.10 Outstanding Charges, Taxes, Liens, etc.
Notwithstanding any other provision in this Agreement, if EPCOR determines that:
{a) there are outstanding charges, taxes, builders' liens, writs of execution,
judgments or other encumbrances which are registered against the Lands;
or
(b) there are any overdue amounts outstanding under any agreement for sale,
mortgage or other financial encumbrance that is registered against the
Lands;
EPCOR may, but is not obligated to, pay all or a portion of the compensation or
other amounts payable under this Agreement to the holder of such charge, lien,
writ of execution, judgment, mortgage or other financial encumbrance, or to such
vendor or mortgagee to satisfy and discharge such encumbrance or to obtain a
postponement from the encumbrance holder. The payment of any amount to such
third party shall be deemed to be payment of such amount to the Owner. For
greater certainty, EPCOR shall not be required to obtain the Owner's consent prior
to making such payment. EPCOR shall provide to the Owner written confirmation
of any such payments within thirty(30)days of making such payments.
-9 -
11.11 Sole Remedy
It is understood and agreed that notwithstanding any other provision in this
Agreement and notwithstanding any rights that any person having an interest may
have in law or in equity, should EPCOR fail to pay any payments payable
hereunder, the sole remedy of any such person having an interest shall be to
recover from EPCOR such amount and any interest payable thereon, and in no
event shall such person having an interest for whatever reason, interfere with,
hinder, molest or interrupt EPCOR in its enjoyment of any of the rights granted,
transferred and conveyed under this Agreement, including the Easement Rights.
11.12 Personallnformation
The Owner consents to the collection and use of its personal information within
this Agreement. EPCOR collects this type of personal information for the purposes
of general land rights acquisition and regulatory disclosure. The Owner consents
to the collection, use and disclosure of its personal information for these legitimate
business purposes in relation to land matters of EPCOR. The Owner is a municipal
corporation incorporated pursuant to the Municipal Act, 2001, S.O. 2001, c. 25, as
amended and is subject to the Municipal Freedom of Information and Protecfion of
Privacy Act, R.S.O. 1990, c. M.56, as amended ("MIFFPA"). EPCOR agrees that
MIFFPA applies to all information or records within EPCOR's custody or control
that are collected or created specifically for the purposes of this Agreement.
11.13 Survival of Obligations
Any term or provision in this Agreement, which, in order to be given its fullest
intended effect, must extend past the expiration or termination of this Agreement
will survive the expiration or termination of this Agreement, including Articles 6, 7
and 10.
11.14 Insurance
Throughout the term of this Agreement, the Owner shall maintain in full force and
effect insurance coverage to the levels of a reasonable owner.
Throughout the term of this Agreement, EPCOR will maintain in full force and effect
the following insurance:
(a) Commercial General Liability insurance in an amount of not less than
$10,000,000.00 per occurrence for bodily injury including death and/or
property damage, which will include the following extensions: contractual
liability, non-owned automobile, products and completed operations,
broad form property damage, sudden and accidental pollution liability,
cross liability and/or severability of interest, contingent employer's liability,
and where applicable no exclusion for excavation, collapse, shoring and
underpinning; and
(b) Commercial Automobile Liability insurance covering all owned, leased or hired
licensed motor vehicles used in connection with the Lands with a combined
- 10 -
limit of not less than $10,000,000.00 per occurrence for bodily injury including
death and/or property damage.
(c) An environmental impairment liability policy with a limit of ten million dollars
($10,000,000) per occurrence to inClude the following:
(i) physical damage to property including loss of use and the prevention,
control and clean-up of land,the atmosphere or any watercourse or body
of water;
(ii) gradual or sudden and accidental pollution for events such as fire,
explosion or a sudden spill, as well as seepage over time; and
(iii) first and third-party clean-up expenses, bodily injury and property
damage arising from a pollution event.
All insurance policies required to be held by EPCOR under this Agreement:
(a) must provide the Owner with 30 days written notice of cancellation;
(b) where applicable, must be primary and not contributory with, or in excess
of, any other insurance carried by the Owner;
(c) may use primary and/or umbrella liability insurance to achieve required
limits; and .
(d) EPCOR will be responsible for payment of all premiums and deductible
amounts relating to the insurance policies required to be held by EPCOR
under this Agreement.
11.15 Costs of Registration
Any costs related to the registration of document with the appropriate land registry
� office shall be the sole responsibility of EPCOR.
11.16 Minor Changes for Reference Plan
The parties agree that the Agreement may be executed without completion of the
Reference Plan in Section 1.1 herevf. Upon completi�n of the Reference Plan, the
parties agree that this Agreement may be modified to include insertion of the
Reference Plan.
11.17 In this Agreement:
11.17.1 the word "shall" is to be read and interpreted as mandatory;
11.17.2 the word "may" is to be read and interpreted as permissive; and
11.17.3 the word "Owner" shall be read and interpreted as meaning an
individual, a partnership, a corporation, a trust, an unincorporated
organization, a govemment, or any department or agency thereof, and
- 11 -
the heirs, executors, administrators or other legal representatives of
any individual.
11.18 Counterparts
This Agreement may be executed in any number of counterparts and all of which
taken together will constitute one and the same instrument. All parties agree that
this Agreement may be transmitted by telecopier or electronic transmission via
email and that the reproduction of signatures by way of telecopier or electronic
transmission via email were executed originals will be treated as though such
reproduction were executed originals and each party undertakes to provide the
other with a copy of this Agreement bearing original signatures within a reasonable
time after written request therefore.
IN WITNESS WHEREOF EPC�OR AIV,D THE OWNER HAVE EXECUTED THIS AGREEMENT
ON THE ?i DAY OF ,1�'`�� , 2021.
EPCOR: EPCOR NATURAL GAS LIMITED
PARTNERSHIP, by its general partner
EPCOR ONTARIO UTILITIES INC.
�
Per. �' ��,'"`^^-.`�'_� c/s
Name:h'�/�-�� ^ ,�('"`fl-- �-�w��a'�
Position:�.�;y;�;� ;�..�,���� �f�t ��/}�
�?6 C`x-+r�'�'�,G
I have authority to bind the Corporation
OWNER: THE CORPORATION OF THE
MUNICIPALITY OF KINCARDINE
Per:
��
Ger r,Mayor
P
Sharon Chambers, CAO
We have authority to bind the Corporation.
SCHEDULE "A"
LANDS
PCL 47-6 SEC TWP OF KINCARDINE CON A; PT LT 48 CON A KINCARDINE PT 2, 3R7842;
KINCARDINE being PIN 33293-0634(LT)
EPCOR UTILITIES N
PRELIMINARY PROPERTY SKETCH
EPC�R �UTH BRUCE NA CHEDULEpiPEUNE PROJECT W E
PIN 33283-0634
PCL 4)�8 SEC TWP Of KINCARDINE CON f�PT LT�8 CON A S
KINCARDINE PT 2,3R7842;KINCARDINE
SURFACE LANDAGENT OWNER�S). AREA(S)-
VROPERTY MFA 0.172 Ae EY6 m2
THE CORPORATION OF THE MUNICIPALRY OF pNCARDINE ��REGUIRED: 0.01!Ae 74 m2
SIGNED ON
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Maintenance Easement Agreement
PIPELINE EASEMENT
THIS AGREEMENT made the_day of , 2021.
BETWEEN:
EPCOR NATURAL GAS LIMITED PARTNERSHIP
("EPCOR")
- and -
THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE (the"Owner")
WHEREAS:
A. The Owner is the registered owner of an estate in fee simple, subject to such
encumbrances, liens and interests as are at the date hereof set forth in the parcel register,
in the lands situated in the Province of Ontario and legally described as:
PIN 33309-0270
PT LT 1 DURHAM MARKET BLK PL KINCARDINE PT 1 & 2, 3R2988; KINCARDINE
B. The Owner has agreed to grant to EPCOR a right-of-way and easement across all or a
portion of the Lands (as defined below) in accordance with the terms and conditions
contained in this Agreement.
IN CONSIDERATION OF the mutual covenants and agreements set forth herein and for other
good and valuable consideration, the receipt and sufficiency of which is acknowledged by each
of the parties, and in consideration of the payment of the Fee (as defined below) by EPCOR to
the Owner, EPCOR and the Owner agree as follows:
1. GRANT
1.1 The Owner hereby grants, conveys and transfers unto EPCOR a non-exclusive
right, license, liberty, privilege and easement for a term of 21 years' less a day on,
over, across, along, in, under and through that portion of the Lands (as defined
below) outlined in red and/or shown as cross-hatched on the attached Schedule
"A" and described as follows those parts of:
PIN 33309-0270
PT LT 1 DURHAM MARKET BLK PL KINCARDINE PT 1 &2, 3R2988; KINCARDINE;
being parts • on Reference Plan •](the"�ands").
to lay down, construct, operate, maintain, inspect, patrol (including aerial patrol),
alter, relocate, remove, replace, reconstruct and repair a line of pipe together with
all facilities or works of EPCOR useful in connection with or incidental to its
undertaking, including, but without limiting the generality of the foregoing, all such
pipes, drips, valves, fittings, connections, meters, cathodic protection equipment
and other equipment and appurtenances, whether or not similar to the foregoing,
as may be useful or convenient in connection therewith or incidental thereto for the
carriage, transmission, conveyance, transportation and handling of oil, natural and
-z -
artificial gas and other gaseous or liquid hydrocarbons and any product or by-
product thereof (such line of pipe together with such related facilities or works
being referred to collectively as the "Pipeline"). Notwithstanding anything else
herein, the Owner shall not grant any of the foregoing rights to any other person
without the prior written consent of EPCOR which shall not be unreasonably
withheld.
2. FEE
2.1 Upon the execution of this Agreement by EPCOR and the Owner, EPCOR shall
pay to the Owner the sum of One Dollar ($1.00) exclusive of Harmonized Sales
Tax (the"Fee"), the receipt of which is acknowledged by the Owner. The payment
of the Fee by EPCOR is the sole consideration and inducement for the execution
by the Owner of this Agreement and is the total compensation payable by EPCOR
to the Owner for the right to use the Lands as stated in this Agreement.
3. RIGHT OF ACCESS
3.1 EPCOR shall have the right at any time and from time to time to do whatever may
be required for the enjoyment of the rights granted under this Agreement, including
the removal of any boulder or rock or the trimming and removal of all trees, shrubs
and other vegetation on, over, across, along, in, under and through the Lands.
3.2 Upon execution of this Agreement by EPCOR and the Owner, EPCOR may
ingress and egress at any and all times on, over, along, across, along, in, under
and through the Lands with its servants, agents, employees, contractors and
subcontractors (collectively, the "Authorized Representatives"), on foot and/or
with vehicles, supplies, machinery and equipment, for all purposes useful or
convenient in connection with or incidental to the exercise and enjoyment of the
rights granted pursuant to this Agreement.
3.3 EPCOR and its Authorized Representatives shall have the right of ingress and
egress from the Lands at any and all times on, over across, along, in, under and
through the Lands for the purposes of exercising the rights granted under this
Agreement. This right of access shall be used only in cases of necessity or
emergency, as determined by EPCOR in EPCOR's sole and absolute discretion.
EPCOR shall pay reasonable compensation to the Owner of the Lands for any
damage caused by EPCOR and its Authorized Representatives in the exercise of
the right of access as granted to EPCOR under this Clause 3.3.
3.4 The rights, licenses, liberties, privileges and easements specifically described in
Clauses 1 and 3 are being referred to collectively as the "Easement Rights°.
4. PIPELINE
4.1 Notwithstanding any rule of law or equity to the contrary, the Pipeline shall at all
times remain a chattel and the personal property of EPCOR or its assigns and shall
not become part of the Lands, notwithstanding that it may be annexed or a�xed
to the Lands or abandoned by EPCOR.
4.2 EPCOR shall install, construct, operate and maintain the Pipeline in a responsible
� manner so as to minimize damage to the Lands and shall, where practicable, after
- 3 -
any such work restore the Lands to substantially its original level and condition,
save and except for any soil rise above grade to allow for soil settlement (the
"Restoration Work"). EPCOR shall not be responsible for any damages caused
by subsidence after levelling is completed, provided the subsidence does not occur
as a result of negligence on the part of EPCOR. Notwithstanding the foregoing, or
Clause 7.1, EPCOR shall only be obligated to compensate the Owner for damage
to buildings or improvements that may be placed within the Lands, and arising from
the exercise by EPCOR of its rights under this Agreement, if EPCOR has given its
prior written consent pursuant to Clause 5.2 to the placement of such buildings or
improvements within the Lands.
4.3 If EPCOR has not commenced the Restoration Work within a period of ninety(90)
days following completion of the Pipeline,the Owner may after thirty(30)days prior
written notice, complete the Restoration Work, in accordance with all applicable
requirements including TSSA requirements and if such requirements must be
completed by a natural gas utility the Owner shall not complete any portion of the
Restoration Work governed by those requirements, provided there is no
interference with the Easement Rights. EPCOR shall pay to the Owner within
fifteen (15) business days following demand, all reasonable amounts paid by the
Owner in respect of such Restoration Work.
4.4 EPCOR shall have the right to temporarily fence and use such portions of the
Lands as may in its opinion be required. If at any time EPCOR shall require
temporary fencing for maintenance or operational reasons, such fencing shall be
temporary and EPCOR shall obtain the prior written consent of the Owner, acting
reasonably, as to the type, term and location of any fencing and shall locate such
temporary fencing insofar as may be practicable so to do, in such a fashion as to
provide a minimum of inconvenience to the Owner. EPCOR shall furnish to the
Owner a plan of the intended location. EPCOR shall within a period of thirty (30)
days following completion of the Pipeline, compensate the Owner for any
inconvenience caused to the Owner and for all damage occurring as a result of
fencing any such portion of the Lands.
4.5 EPCOR may at any time for whatsoever reason or cause abandon the Pipeline in
accordance with the then-applicable legislation, regulations and governmental
directions. In the event of the abandonment of the Pipeline, EPCOR may, at its
option, either leave the Pipeline in place or remove it provided this option remains
in accordance with the then-applicable legislation. If EPCOR leaves the Pipeline
in place EPCOR shall complete decommissioning procedures and comply with all
applicable legislation. In the event of removal, EPCOR shall conserve, reclaim
and remediate the portion of the Lands affected by the exercise of the rights herein
granted, insofar as it is practicable to do so and in accordance with the then-
applicable legislation, regulations and governmental directions. In the event of
removal or decommissioning, as the case may be, and subject to the then-
applicable legislation, EPCOR agrees to discharge this Agreement and the
Easement Rights in the appropriate Land Registry Office within 180 days from the
effective date of the removal of the Pipeline or the completion of the
decommissioning of the Pipeline.
-4-
5. OWNER'S USE OF LANDS
5.1 The Owner shali not use the Lands in any manner which may conflict with the
rights of EPCOR as granted to EPCOR pursuant to this Agreement.
5.2 The Owner shall not, without the prior written consent of EPCOR which consent
shall not be unreasonably withheld, stockpile, excavate, drill, install, erect,
construct or place above, through, on or under the Lands any pavement, building,
fence, pit, well, pipe, foundation, sidewalk, or other structure or improvement, or
do or permit to be done any mining, quarrying, land leveliing or other work or
activity of any like or similar nature on, in or under the Lands. The Owner shall not
permit any of these activities to occur by others.
5.3 The Owner shall not alter the surface grade level of the Lands in any manner which
would affect the rights granted to EPCOR pursuant to this Agreement.
5.4 The Owner shall not plant any trees within the Lands. Existing trees on the Lands
shall not be removed without the prior written consent of the Owner.
5.5 The Owner shall not store or otherwise place toxic, hazardous, dangerous,
flammable, potentially explosive, noxious or waste substances or contaminants
(the °Hazardous Materials") within the Lands, nor shall the Owner permit the
storage or placement by a third pa�ty of such substances within the Lands.
5.6 The Owner shall be responsible for the maintenance of the Lands, including but
not limited to such items as grass cutting and clean-up, replacement and repair of
the Lands in such a manner that it shall be suitable at all times for EPCOR's use
as permitted by this Agreement. The Owner shall undertake any maintenance
directed by EPCOR to maintain the said Lands within sixty (60) days of receiving
written notification.
5.7 Subject to the foregoing and to the provisions of applicable legislation, regulations
and govemmental directions, and provided that there is no interference with the
Easement Rights, the Owner shall have the right to use and enjoy the Lands. In
addition, EPCOR hereby grants permission to the Owner to cross the buried
Pipeline with ordinary farming vehicles as necessary in connection with ordinary
cultivation, as such vehicles are defined by EPCOR from time to time and
communicated in writing to the Owner at the address set out in Clause 9.
6. ENVIRONMENTAL OBLIGATIONS
6.1 EPCOR and the Owner shall comply with all applicable legislation, regulations and
governmental direction dealing with environmental issues, including the
Hazardous Materials (the "Environmental Laws"), related to the Lands.
6.2 The Owner represents and warrants that the Lands have not been used for the
storage of the Hazardous Materials. If EPCOR encounters any Hazardous
Materials in undertaking any work within the Lands, it shall give notice to the
Owner. At the expense of the Owner, EPCOR (or, at EPCOR's option, the Owner)
shall effect the removal of such Hazardous Materials in accordance with the
Environmental Laws.
-5 -
6.3 The responsibility of EPCOR and the Owner with respect to environmental
obligations, as required by this Agreement, shall continue to be enforceable during
and after the termination of this Agreement.
7. INDEMNITY AND COMPENSATION
7.1 EPCOR acknowledges and agrees that, in exercising any of its rights under this
Easement Agreement, it shall do so at its own risk and expense. Unless the loss
or damage is directly attributable to the gross negligence or willful misconduct of
the Owner, its elected officials, officers, employees and agents and those persons
for whom the Owner is responsible in law, EPCOR shall not have a claim against
the Owner for any loss or damage by whomsoever caused to EPCOR's property.
Except for the gross negligence or willful misconduct of the Owner, its employees,
agents, contractors, subcontractors and those persons for whom the Owner is
responsible in law, EPCOR shall:
(a) be liable to the Owner for; and
(b) indemnify and save harmless the Owner, its employees, agents,
contractors, subcontractors and those persons for whom the Owner is
responsible in law from and against
any and all claims, suits, actions, demands, expenses, damages and costs which
may be brought or made against the Owner or which the Owner may pay or incur
by reason of any breach,violation or non-perFormance by EPCOR of any covenant,
term or provision of this Agreement or by reason of the gross negligence or willful
misconduct of EPCOR, its agents, employees, contractors, subcontractors and
those persons for whom EPCOR is responsible in law, in the exercise of the rights
as granted to EPCOR under this Agreement. This indemnity shall be in addition to
and not in lieu of any insurance to be provided by EPCOR in accordance with this
Easement Agreement and shall survive this Easement Agreement.
8. QUIET ENJOYMENT
8.1 EPCOR by perForming and observing the terms and conditions of this Agreement
shall and may peaceably hold and enjoy all the rights granted under this
Agreement, without hindrance, molestation or interruption on the part of the Owner
or any person claiming by, through, under, from or in trust for, the Owner.
9. ADDRESS FOR CONSENT OR NOTICE
9.1 Any written consent required to be obtained from, and any notices to be given to,
EPCOR or the Owner, as the case may be, pursuant to this Agreement shall be in
writing and obtained or effected by delivering the request or notice to EPCOR or
the Owner in person or by email, registered mail, postage prepaid, addressed as
follows:
-6 -
To EPCOR:
EPCOR Natural Gas Limited Partnership
Attention: General Manager
39 Beech Street East
Alymer ON N5H 3J6
Email:
To the Owner:
The Corporation of the Municipality of Kincardine
1475 Concession 5
Kincardine, ON
N2Z 2X6
Attention: Clerk
Email: jlawrie ,,,,kincardine.ca
A notice will be effective on: (i) the other party's receipt of it; or (ii) if sent by
registered mail, on the earlier of the other party's receipt of it and the seventh day
after mailing it.
10. DISPUTE RESOLUTION
10.1 In the event of a determination by either party in regard to a matter in dispute
between EPCOR and the Owner as to the interpretation or effect of any of the
terms or conditions of this Agreement, and where notice of such determination has
been delivered to EPCOR or the Owner, as the case may be, the determination
shall be conclusively deemed to have been accepted by the parties, unless,within
ten (10) days of the receipt of notice of the determination the party receiving the
notice gives written notice to the other party (the "Arbitration Notice") of their
desire to have the matter in dispute resolved by arbitration.
10.2 Within seven(7)days of receipt of the Arbitration Notice, the parties shall mutually
appoint an arbitrator (the "Arbitrator"). In the event that the parties shall fail to
agree on the appointment of the Arbitrator, then either party may, on written notice
to the other, apply to the Ontario Superior Court of Justice for the appointment of
the Arbitrator, pursuant to the Arbitration Acf, 1991, S.O. 1991, c. 17, as amended
(the "Arbitration Act").
10.3 The seat of arbitration shall be Kincardine, Ontario.
10.4 The Arbitrator shall be directed to make its determination on the basis of a
presumption that this Agreement does not require amendments. Any
determination of the Arbitrator shall include a determination as to payment of the
costs of the arbitration. The determination of the Arbitrator shall be final and
binding on the parties and there shall be no right to appeal of such decision to the
courts.
-7 -
10.5 Except as modified by this Agreement, the provisions of the Arbitration Act and its
regulations or any successive legislation shall apply.
11. GENERAL
11.1 Entire Agreement
There are no conditions, either subsequent or precedent, except as stated in this
Agreement and in the letter of understanding between the Parties dated November
5, 2020 (the"LOU"). This Agreement and the LOU represent the entire agreement
between EPCOR and the Owner and no representations or warranties have been
made by EPCOR, except as stated in this Agreement and the LOU.
11.2 Governing Law
This Agreement shall be governed by and construed in accordance with the laws
in force in the Province of Ontario and the laws of Canada applicable therein.
11.3 Easement in Gross
The rights granted under this Agreement, including the Easement Rights, are
declared to be an easement in gross.
11.4 Further Assurances
The parties hereto will execute such further assurances of the Lands and the rights
granted under this Agreement as may be required.
11.5 Assignment
EPCOR shall, without the consent of the Owner, but upon seven (7) days prior
written notice, have the right to assign, in whole or in part, to any person,
partnership, trust, government, agency or corporation, the rights granted,
transferred and conveyed under this Agreement, including the Easement Rights,
provided that the assignee shall execute and deliver an assignment agreement in
a form to be provided by EPCOR, whereby the assignee agrees to assume and be
bound by the terms and conditions of this Agreement. Such notice shall include
the notice particulars as required by Clause 9.1.
11.6 EPCOR's use of Lands
EPCOR shall, without the consent of the Owner, have the right to grant the right to
use the Lands, in whole or in part, in accordance with the terms and conditions
contained in this Agreement to any person, partnership, trust, government, agency
or corporation.
11.7 Enurement
This Agreement, including all covenants contained herein and all rights granted
hereunder, is and shall be of the same force and effect for all intents and purposes
as a covenant running with the Lands and shall extend to, be binding upon and
-8 -
enure for the benefit of the heirs, executors,administrators, successors-in-title and
assigns of the parties respectively.
11.8 Severability
If any term or condition of this Agreement is invalid or unenforceable under any
applicable statute or is declared invalid or unenforceable by a court of competent
jurisdiction, then such term or condition shall be deemed to be severed from this
Agreement, provided however, that the remainder of this Agreement shall not be
affected, shall continue in full force and effect and each remaining term and
condition shall be valid and be enforced to the fullest extent permitted by law.
11.9 Additional Taxes
EPCOR agrees that no taxes, rates, assessments, charges, levies or impositions
of any kind or nature of any governmental authority. Including without limitation
property taxes on the pipeline, shall be payable by or placed upon the Owner in
relation to any use of the Lands by EPCOR pursuant to this Agreement, and if any
such taxes, rates, assessments, charges, levies or impositions shall be levied,
imposed, or placed, EPCOR shall make payment thereof. All taxes or
assessments in the nature of sales taxes, good and services taxes or value added
taxes which may be charged, levied or assessed as a result of this Agreement,
whether or not such taxes are charged, levied or assessed as against the Owner,
shall be the responsibility of EPCOR, and EPCOR shall on written demand by the
Owner, pay to the Owner any and all such taxes.
11.10 Outstanding Charges, Taxes, Liens, etc.
Notwithstanding any other provision in this Agreement, if EPCOR determines that:
(a) there are outstanding charges, taxes, builders' liens, writs of execution,
judgments or othe�encumbrances which are registered against the Lands;
or
(b) there are any overdue amounts outstanding under any agreement for sale,
mortgage or other financial encumbrance that is registered against the
Lands;
EPCOR may, but is not obligated to, pay all or a portion of the compensation or
other amounts payable under this Agreement to the holder of such charge, lien,
writ of execution, judgment, mortgage or other financial encumbrance, or to such
vendor or mortgagee to satisfy and discharge such encumbrance or to obtain a
postponement from the encumbrance holder. The payment of any amount to such
third party shall be deemed to be payment of such amount to the Owner. For
greater certainty, EPCOR shall not be required to obtain the Owner's consent prior
to making such payment. EPCOR shall provide to the Owner written confirmation
of any such payments within thirty(30)days of making such payments.
11.11 Sole Remedy
It is understood and agreed that notwithstanding any other provision in this
Agreement and notwithstanding any rights that any person having an interest may
-9 -
have in law or in equiry, should EPCOR fail to pay any payments payable
hereunder, the sole remedy of any such person having an interest shall be to
recover from EPCOR such amount and any interest payable thereon, and in no
event shall such person having an interest for whatever reason, interfere with,
hinder, molest or interrupt EPCOR in its enjoyment of any of the rights granted,
transferred and conveyed under this Agreement, including the Easement Rights.
11.12 Personallnformation
The Owner consents to the collection and use of its personal information within
this Agreement. EPCOR collects this type of personal information for the purposes
of general land rights acquisition and regulatory disclosure. The Owner consents
to the collection, use and disclosure of its personal information for these legitimate
business purposes in relation to land matters of EPCOR. The Owner is a municipal
corporation incorporated pursuant to the Municipal Act, 2001, S.O. 2001, c. 25, as
amended and is subject to the Municipal Freedom of Information and Protection
of Privacy Act, R.S.O. 1990, c. M.56, as amended ("MIFFPA"). EPCOR agrees
that MIFFPA applies to all information or records within EPCOR's custody or
control that are collected or created specifically for the purposes of this Agreement.
11.13 Survival of Obligations
Any term or provision in this Agreement, which, in order to be given its fullest
intended effect, must extend past the expiration or termination of this Agreement
will survive the expiration or termination of this Agreement, including Articles 6, 7
and 10.
11.14 Insurance
Throughout the term of this Agreement, the Owner shall maintain in full force and
effect insurance coverage to the levels of a reasonable owner.
Throughout the term of this Agreement, EPCOR will maintain in full force and effect
the following insurance:
(a) Commercial General Liability insurance in an amount of not less than
$10,000,000.00 per occurrence for bodily injury including death and/or
property damage, which will include the following extensions: contractual
liability, non-owned automobile, products and completed operations,
broad form property damage, sudden and accidental pollution liability,
cross liability and/or severability of interest, contingent employer's liability,
and where applicable no exclusion for excavation, collapse, shoring and
underpinning; and
(b) Commercial Automobile Liability insurance covering all owned, leased or
hired licensed motor vehicles used in connection with the Lands with a
combined limit of not less than $10,000,000.00 per occurrence for bodily
injury including death and/or property damage.
(c) An environmental impairment liability policy with a limit of ten million dollars
($10,000,000) per occurrence to include the following:
- 10 -
(i) physical damage to property including loss of use and the prevention,
control and clean-up of land,the atmosphere or any watercourse or body
of water;
(ii) gradual or sudden and accidental pollution for events such as fire,
explosion or a sudden spill, as well as seepage over time; and
(iii) first and third-party clean-up expenses, bodily injury and property
damage arising from a pollution event.
All insurance policies required to be held by EPCOR under this Agreement:
(a) must provide the Owner with 30 days written notice of cancellation;
(b) where applicable, must be primary and not contributory with, or in excess
of, any other insurance carried by the Owner;
(c) may use primary and/or umbrella liability insurance to achieve required
limits; and
(d) EPCOR will be responsible for payment of all premiums and deductible
amounts relating to the insurance policies required to be held by EPCOR
under this Agreement.
. 91.15 Costs of Registration
Any costs related to the registration of document with the appropriate land registry
office shall be the sole responsibility of EPCOR.
11.16 Minor Changes for Reference Plan
The parties agree that the Agreement may be executed without completion of the
Reference Plan in Section 1.1 hereof. Upon completion of the Reference Plan,the
parties agree that this Agreement may be modified to include insertion of the
Reference Plan.
11.17 In this Agreement:
11.17.1 the word "shall" is to be read and interpreted as mandatory;
11.17.2 the word "may" is to be read and interpreted as permissive; and
11.17.3 the word "Owner" shall be read and interpreted as meaning an
individual, a partnership, a corporation, a trust, an unincorporated
organization, a government, or any department or agency thereof, and
- 11 -
the heirs, executors, administrators or other legal representatives of
any individual.
11.18 Counterparts
This Agreement may be executed in any number of counterparts and all of which
taken together will constitute one and the same instrument. All parties agree that
this Agreement may be transmitted by telecopier or electronic transmission via
email and that the reproduction of signatures by way of telecopier or electronic
transmission via email were executed originals will be treated as though such
reproduction were executed originals and each party undertakes to provide the
otherwith a copy of this Agreement bearing original signatures within a reasonable
time after written request therefore.
IN WITNE�S WHEREOF EPCOR AND THE OWNER HAVE EXECUTED THIS AGREEMENT
ON THE�DAY OF J�-t��=- , 2021.
EPCOR: EPCOR NATURAL GAS LIMITED
PARTNERSHIP, by its general partner
EPCOR ONTARIO UTILITIES INC.
. ��{f� �����
Per. `�``^'�\ c/s
Name:M�L �����-1t- ���'z--
Position:C,��,�,� ,����,�;ti, �y�'1.,,1t�
�:� :�,��p
I have authority to bind the Corporation
OWNER: THE CORPORATION OF THE
MUNICIPALITY OF KINCARDINE
Per: �ZMti`��' �
Gerry lover, May
r:
haron Chambers, CAO
We have authority to bind the Corporation.
SCHEDULE "A"
LANDS
PT LT 1 DURHAM MARKET BLK PL KINCARDINE PT 1 &2, 3R2988; KINCARDINE
being PIN 33309-0270(LT)
EPCOR UTILITIES N
PRELIMINARY PROPERTY SKETCH
EPC�R SOUTH BRUCE�SC EDULE AIPELINE PROJECT W E
PIN 33309-0270
PT LT 1 OURHAM MARKET BlK PL KINCARDINE PT 1 8 2, S.
3R2988;KINCARDINE
SURFACE LAND AGENT OWNER(S): AREA(S)
PROPERTY AREA: 0.176 Ac 707 m2
THE CORPORATION OF THE AIUNICIPALITY OF qNCARDINE ��REOUIRED: D01E Ac 67 rtQ
SIGNED ON
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Maintenance Easement Agreement
PIPELINE EASEMENT
THIS AGREEMENT made the_day of , 2021.
BETWEEN:
EPCOR NATURAL GAS LIMITED PARTNERSHIP
("EPCOR")
-and -
THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE (the "Owner")
WHEREAS:
A. The Owner is the registered owner of an estate in fee simple, subject to such
encumbrances, liens and interests as are at the date hereof set forth in the parcel register,
in the lands situated in the Province of Ontario and legally described as:
PIN 33309-0226
PT LT 3 E/S QUEEN ST PL KINCARDINE PT 1, 3R993; KINCARDINE
B. The Owner has agreed to grant to EPCOR a right-of-way and easement across all or a
portion of the Lands (as defined below) in accordance with the terms and conditions
contained in this Agreement.
IN CONSIDERATION OF the mutual covenants and agreements set forth herein and for other
g�od and valuable consideration, the receipt and sufficiency of which is acknowledged by each
of the parties, and in consideration of the payment of the Fee (as defined below) by EPCOR to
the Owner, EPCOR and the Owner agree as follows:
1. GRANT
1.1 The Owner hereby grants, conveys and transfers unto EPCOR a non-exclusive
right, license, liberty, privilege and easement for a term of 21 years' less a day on,
over, across, along, in, under and through that portion of the Lands (as defined
below) outlined in red and/or shown as cross-hatched on the attached Schedule
"A" and described as follows those parts of:
PIN 33309-0226
PT LT 3 E/S QUEEN ST PL KINCARDINE PT 1, 3R993; KINCARDINE;
being parts • on Reference Plan �](the"Lands").
to lay down, construct, operate, maintain, inspect, patrol (including aerial patrol),
alter, relocate, remove, replace, reconstruct and repair a line of pipe together with
all facilities or works of EPCOR useful in connection with or incidental to its
undertaking, including, but without limiting the generality of the foregoing, all such
pipes, drips, valves, fittings, connections, meters, cathodic protection equipment
and other equipment and appurtenances, whether or not similar to the foregoing,
as may be useful or convenient in connection therewith or incidental thereto for the
-2 -
carriage, transmission, conveyance, transportation and handling of oil, natural and
artificial gas and other gaseous or liquid hydrocarbons and any product or by-
product thereof (such line of pipe together with such related facilities or works
being referred to collectively as the "Pipeline"). Notwithstanding anything else
herein, the Owner shall not grant any of the foregoing rights to any other person
without the prior written consent of EPCOR which shall not be unreasonably
withheld.
2. FEE
2.1 Upon the execution of this Ag�eement by EPCOR and the Owner, EPCOR shall
pay to the Owner the sum of One Dollar ($1.00) exclusive of Harmonized Sales
Tax(the"Fee"), the receipt of which is acknowledged by the Owner. The payment
of the Fee by EPCOR is the sole consideration and inducement for the execution
by the Owner of this Agreement and is the total compensation payable by EPCOR
to the Owner for the right to use the Lands as stated in this Agreement.
3. RIGHT OF ACCESS
3.1 EPCOR shall have the right at any time and from time to time to do whatever may
be required for the enjoyment of the rights granted under this Agreement, including
the removal of any boulder or rock or the trimming and removal of all trees, shrubs
and other vegetation on, over, across, along, in, under and through the Lands.
3.2 Upon execution of this Agreement by EPCOR and the Owner, EPCOR may
ingress and egress at any and all times on, over, along, across, along, in, under
and through the Lands with its servants, agents, employees, contractors and
subcontractors (collectively, the "Authorized Representatives'), on foot and/or
with vehicles, supplies, machinery and equipment, for all purposes useful or
convenient in connection with or incidental to the exercise and enjoyment of the
rights granted pursuant to this Agreement.
3.3 EPCOR and its Authorized Representatives shall have the right of ingress and
egress from the Lands at any and all times on, over across, along, in, under and
through the Lands for the purposes of exercising the rights granted under this
Agreement. This right of access shall be used only in cases of necessity or
emergency, as determined by EPCOR in EPCOR's sole and absolute discretion.
EPCOR shall pay reasonable compensation to the Owner of the Lands for any
damage caused by EPCOR and its Authorized Representatives in the exercise of
the right of access as granted to EPCOR under this Clause 3.3.
3.4 The rights, licenses, liberties, privileges and easements specifically described in
Clauses 1 and 3 are being referred to collectively as the°Easement Rights".
4. PIPELINE
4.1 Notwithstanding any rule of law or equity to the contrary, the Pipeline shall at all
times remain a chattel and the personal property of EPCOR or its assigns and shall
not become part of the Lands, notwithstanding that it may be annexed or affixed
to the Lands or abandoned by EPCOR.
-3 -
4.2 EPCOR shall install, construct, operate and maintain the Pipeline in a responsible
manner so as to minimize damage to the Lands and shall, where practicable, after
any such work restore the Lands to substantially �its original level and condition,
save and except for any soil rise above grade to allow for soil settlement (the
"Restoration Work"). EPCOR shall not be responsible for any damages caused
by subsidence after levelling is completed, provided the subsidence does not occur
as a result of negligence on the part of EPCOR. Notwithstanding the foregoing, or
Clause 7.1, EPCOR shall only be obligated to compensate the Owner for damage
to buildings or improvements that may be placed within the Lands,and arising from
the exercise by EPCOR of its rights under this Agreement, if EPCOR has given its
prior written consent pursuant to Clause 5.2 to the placement of such buildings or
improvements within the Lands.
4.3 If EPCOR has not commenced the Restoration Work within a period of ninety(90)
days following completion of the Pipeline,the Owner may after thirty(30)days prior
written notice, complete the Restoration Work, in accordance with all applicable
requirements including TSSA requirements and if such requirements must be
completed by a natural gas utility the Owner shall not complete any portion of the
Restoration Work governed by those requirements, provided there is no
interference with the Easement Rights. EPCOR shall pay to the Owner within
fifteen (15) business days following demand, all reasonable amounts paid by the
Owner in respect of such Restoration Work.
4.4 EPCOR shall have the right to temporarily fence and use such portions of the
Lands as may in its opinion be required. If at any time EPCOR shall require
temporary fencing for maintenance or operational reasons, such fencing shall be
temporary and EPCOR shall obtain the prior written consent of the Owner, acting
reasonably, as to the type, term and location of any fencing and shall locate such
temporary fencing insofar as may be practicable so to do, in such a fashion as to
provide a minimum of inconvenience to the Owner. EPCOR shall furnish to the
Qwner a plan of the intended location. EPCOR shall within a period of thirty (30)
days following completion of the Pipeline, compensate the Owner for any
inconvenience caused to the Owner and for all damage occurring as a result of
fencing any such portion of the Lands.
4.5 EPCOR may at any time for whatsoever reason or cause abandon the Pipeline in
accordance with the then-applicable legislation, regulations and governmental
directions. In the event of the abandonment of the Pipeline, EPCOR may, at its
option, either leave the Pipeline in place or remove it provided this option remains
in accordance with the then-applicable legislation. If EPCOR leaves the Pipeline
in place EPCOR shall complete decommissioning procedures and comply with all
applicable legislation. In the event of removal, EPCOR shall conserve, reclaim
and remediate the portion of the Lands affected by the exercise of the rights herein
granted, insofar as it is practicable to do so and in accordance with the then-
applicable legislation, regulations and governmental directions. In the event of
removal or decommissioning, as the case may be, and subject to the then-
applicable legislation, EPCOR agrees to discharge this Agreement and the
Easement Rights in the appropriate Land Registry Office within 180 days from the
effective date of the removal of the Pipeline or the completion of the
decommissioning of the Pipeline.
-4 -
5. OWNER'S USE OF LANDS
5.1 The Owner shall not use the Lands in any manner which may conflict with the
rights of EPCOR as granted to EPCOR pursuant to this Agreement.
5.2 The Owner shall not, without the prior written consent of EPCOR which consent
shall not be unreasonably withheld, stockpile, excavate, drill, install, erect,
construct or place above, through, on or under the Lands any pavement, building,
fence, pit, well, pipe, foundation, sidewalk, or other structure or improvement, or
do or permit to be done any mining, quarrying, land levelling or other work or
activity of any like or similar nature on, in or under the Lands. The Owner shall not
permit any of these activities to occur by others.
5.3 The Owner shall not alter the surface grade level of the Lands in any manner which
would affect the rights granted to EPCOR pursuant to this Agreement.
5.4 The Owner shall not plant any trees within the Lands. Existing trees on the Lands
shall not be removed without the prior written consent of the Owner.
5.5 The Owner shall not store or otherwise place toxic, hazardous, dangerous,
flammable, potentially explosive, noxious or waste substances or contaminants
(the "Hazardous Materials") withi� the Lands, nor shall the Owner permit the
storage or placement by a third party of such substances within the Lands.
5.6 The Owner shall be responsible for the maintenance of the Lands, including but
not limited to such items as grass cutting and clean-up, replacement and repair of
the Lands in such a manner that it shall be suitable at all times for EPCOR's use
as permitted by this Agreement. The Owner shall undertake any maintenance
directed by EPCOR to maintain the said Lands within sixty (60) days of receiving
written notification.
5.7 Subject to the foregoing and to the provisions of applicable legislation, regulations
and governmental directions, and provided that there is no interference with the
Easement Rights, the Owner shall have the right to use and enjoy the Lands. In
addition, EPCOR hereby grants permission to the Owner to cross the buried
Pipeline with ordinary farming vehicles as necessary in connection with ordinary
cultivation, as such vehicles are defined by EPCOR from time to time and
communicated in writing to the Owner at the address set out in Clause 9.
6. ENVIRONMENTAL OBLIGATIONS
6.1 EPCOR and the Owner shall comply with all applicable legislation, regulations and
governmental direction dealing with environmental issues, including the
Hazardous Materials (the "Environmental Laws"), related to the Lands.
6.2 The Owner represents and warrants that the Lands have not been used for the
storage of the Hazardous Materials. If EPCOR encounters any Hazardous
Materials in undertaking any work within the Lands, it shall give notice to the
Owner. At the expense of the Owner, EPCOR(or, at EPCOR's option, the Owner)
shall effect the removal of such Hazardous Materials in accordance with the
-5 -
Environmental Laws.
6.3 The responsibility of EPCOR and the Owner with respect to environmental
obligations, as required by this Agreement, shall continue to be enforceable during
and after the termination of this Agreement.
7. INDEMNITY AND COMPENSATION
7.1 EPCOR acknowledges and agrees that, in exercising any of its rights under this
Easement Agreement, it shall do so at its own risk and expense. Unless the loss
or damage is directly attributable to the gross negligence or willful misconduct of
the Owner, its elected officials, officers, employees and agents and those persons
for whom the Owner is responsible in law, EPCOR shall not have a claim against
the Owner for any loss or damage by whomsoever caused to EPCOR's property.
Except for the gross negligence or willful misconduct of the Owner, its employees,
agents, contractors, subcontractors and those persons for whom the Owner is
responsible in law, EPCOR shall:
(a) be liable to the Owner for; and
(b) indemnify and save harmless the Owner, its employees, agents,
contractors, subcontractors and those persons for whom the Owner is
responsible in law from and against
any and all claims, suits, actions, demands, expenses, damages and costs which
may be brought or made against the Owner or which the Owner may pay or incur
by reason of any breach,violation or non-performance by EPCOR of any covenant,
term or provision of this Agreement or by reason of the gross negligence or willful
misconduct of EPCOR, its agents, employees, contractors, subcontractors and
those persons for whom EPCOR is responsible in law, in the exercise of the rights
as granted to EPCOR under this Agreement. This indemnity shall be in addition to
and not in lieu of any insurance to be provided by EPCOR in accordance with this
Easement Agreement and shall survive this Easement Agreement.
8. QUIET ENJOYMENT
8.1 EPCOR by performing and observing the terms and conditions of this Agreement
shall and may peaceably hold and enjoy all the rights granted under this
Agreement,without hindrance, molestation or interruption on the pa�t of the Owner
or any person claiming by, through, under, from or in trust for, the Owner.
9. ADDRESS FOR CONSENT OR NOTICE
9.1 Any written consent required to be obtained from, and any notices to be given to,
EPCOR or the Owner, as the case may be, pursuant to this Agreement shall be in
writing and obtained or effected by delivering the request or notice to EPCOR or
the Owner in person or by email, registered mail, postage prepaid, addressed as
follows:
-6 -
To EPCOR:
EPCOR Natural Gas Limited Partnership
Attention: General Manager
39 Beech Street East
Alymer ON N5H 3J6
Email:
To the Owner:
The Corporation of the Municipality of Kincardine
1475 Concession 5
Kincardine, ON
N2Z 2X6
Attention: Clerk
Email: ilawriena.kincardine.ca
A notice will be effective on: (i) the other party's receipt of it; or (ii) if sent by
registered mail, on the earlier of the other party's receipt of it and the seventh day
after mailing it.
10. DISPUTE RESOLUTION
10.1 In the event of a determination by either party in regard to a matter in dispute
between EPCOR and the Owner as to the interpretation or effect of any of the
terms or conditions of this Agreement, and where notice of such determination has
been delivered to EPCOR or the Owner, as the case may be, the determination
shall be conclusively deemed to have been accepted by the parties, unless,within
ten (10) days of the receipt of notice of the determination the party receiving the
notice gives written notice to the other party (the "Arbitration Notice") of their
desire to have the matter in dispute resolved by arbitration.
10.2 Within seven (7)days of receipt of the Arbitration Notice, the parties shall mutually
appoint an arbitrator (the "Arbitrator"). In the event that the parties shall fail to
agree on the appointment of the Arbitrator, then either party may, on written notice
to the other, apply to the Ontario Superior Court of Justice for the appointment of
the Arbitrator, pursuant to the Arbitration Act, 1991, S.O. 1991, c. 17, as amended
(the °Arbitration Act").
10.3 The seat of arbitration shall be Kincardine, Ontario.
10.4 The Arbitrator shall be directed to make its determination on the basis of a
presumption that this Agreement does not require amendments. Any
determination of the Arbitrator shall include a determination as to payment of the
costs of the arbitration. The determination of the Arbitrator shall be final and
binding on the parties and there shall be no right to appeal of such decision to the
courts.
- 7 -
10.5 Except as modified by this Agreement, the provisions of the Arbitration Act and its
regulations or any successive legislation shall apply.
11. GENERAL �
91.1 Entire Agreement
There are no conditions, either subsequent or precedent, except as stated in this
Agreement and in the letter of understanding between the Parties dated November
5, 2020(the"LOU"). This Agreement and the LOU represent the entire agreement
between EPCOR and the Owner and no representations or warranties have been
made by EPCOR, except as stated in this Agreement and the LOU.
11.2 Governing Law
This Agreement shall be governed by and construed in accordance with the laws
in force in the Province of Ontario and the laws of Canada applicable therein.
11.3 Easement in Gross
The rights granted under this Agreement, including the Easement Rights, are
declared to be an easement in gross.
11.4 Further Assurances
The parties hereto will execute such further assurances of the Lands and the rights
granted under this Agreement as may be required.
11.5 Assignment
EPCOR shall, without the consent of the Owner, but upon seven (7) days prior
written notice, have the right to assign, in whole or in part, to any person,
partnership, trust, government, agency or corporation, the rights granted,
transferred and conveyed under this Agreement, including the Easement Rights,
provided that the assignee shall execute and deliver an assignment agreement in
a form to be provided by EPCOR, whereby the assignee agrees to assume and be
bound by the terms and conditions of this Agreement. Such notice shall include
the notice particulars as required by Clause 9.1.
11.6 EPCOR's use of Lands
EPCOR shall, without the consent of the Owner, have the right to grant the right to
use the Lands, in whole or in part, in accordance with the terms and conditions
contained in this Agreement to any person, partnership,trust,govemment,agency
or corporation.
11.7 Enurement
This Agreement, including all covenants contained herein and all rights granted
hereunder, is and shall be of the same force and effect for all intents and purposes
as a covenant running with the Lands and shall extend to, be binding upon and
-8 -
enure for the benefit of the heirs, executors,administrators, successors-in-title and
assigns of the parties respectively.
11.8 Severability
If any term or condition of this Agreement is invalid or unenforceable under any
applicable statute or is declared invalid or unenforceable by a court of competent
jurisdiction, then such term or condition shall be deemed to be severed from this
Agreement, provided however, that the remainder of this Agreement shall not be
affected, shall continue in full force and effect and each remaining term and
condition shall be valid and be enforced to the fullest extent permitted by law.
11.9 Additionat Taxes
EPCOR agrees that no taxes, rates, assessments, charges, levies or impositions
of any kind or nature of any governmental authority: Including without limitation
property taxes on the pipeline, shall be payable by or placed upon the Owner in
relation to any use of the Lands by EPCOR pursuant to this Agreement, and if any
such taxes, rates, assessments, charges, levies or impositions shall be levied,
imposed, or placed, EPCOR shall make payment thereof. All taxes or
assessments in the nature of sales taxes, good and services taxes or value added
taxes which may be charged, levied or assessed as a result of this Agreement,
whether or not such taxes are charged, levied or assessed as against the Owner,
shall be the responsibility of EPCOR, and EPCOR shall on written demand by the
Owner, pay to the Owner any and all such taxes.
11.10 Outstanding Charges, Taxes, Liens, etc.
Notwithstanding any other provision in this Agreement, if EPCOR determines that:
(a) there are outstanding charges, taxes, builders' liens, writs of execution,
judgments or other encumbrances which are registered against the Lands;
or
(b) there are any overdue amounts outstanding under any agreement for sale,
mortgage or other financial encumbrance that is registered against the
Lands;
EPCOR may, but is not obligated to, pay all or a portion of the compensation or
other amounts payable under this Agreement to the holder of such charge, lien,
writ of execution, judgment, mortgage or other financial encumbrance, or to such
vendor or mortgagee to satisfy and discharge such encumbrance or to obtain a
postponement from the encumbrance holder. The payment of any amount to such
third party shall be deemed to be payment of such amount to the Owner. For
greater certainty, EPCOR shall not be required to obtain the Owner's consent prior
to making such payment. EPCOR shall provide to the Owner written confirmation
of any such payments within thirty(30)days of making such payments.
-9 -
11.11 Sole Remedy
It is understood and agreed that notwithstanding any other provision in this
Agreement and notwithstanding any rights that any person having an interest may �
have in law or in equity, should EPCOR fail to pay any payments payable
hereunder, the sole remedy of any such person having an interest shall be to
recover from EPCOR such amount and any interest payable thereon, and in no
event shall such person having an interest for whatever reason, interfere with,
hinder, molest or interrupt EPCOR in its enjoyment of any of the rights granted,
transferred and conveyed under this Agreement, including the Easement Rights.
11.12 Personallnformation
The Owner consents to the collection and use of its personal information within
this Agreement. EPCOR collects this type of personal information for the purposes
of general land rights acquisition and regulatory disclosure. The Owner consents
to the collection, use and disclosure of its personal information for these legitimate
business purposes in relation to land matters of EPCOR. The Owner is a municipal
corporation incorporated pursuant to the Municipal Act, 2001, S.O. 2001, c. 25, as
amended and is subject to the Municipal Freedom of Informafion and Protecfion of
Privacy Act, R.S.O. 1990, c. M.56, as amended ("MIFFPA"). EPCOR agrees that
MIFFPA applies to all information or records within EPCOR's custody or control
that are collected or created specifically for the purposes of this Agreement.
11.13 Survival of Obligations
Any term or provision in this Agreement, which, in order to be given its fullest
intended effect, must extend past the expiration or te�rnination of this Agreement
will survive the expiration or termination of this Agreement, including Articles 6, 7
and 10.
11.14 Insurance
Throughout the term of this Agreement, the Owner shall maintain in full force and
effect insurance coverage to the levels of a reasonable owner.
Throughout the term of this Agreement, EPCOR will maintain in full force and effect
the following insurance:
(a) Commercial General Liability insurance in an amount of not less than
$10,000,000.00 per occurrence for bodily injury including death and/or
property damage, which will include the following extensions: contractual
liability, non-owned automobile, products and completed operations,
broad form property damage, sudden and accidental pollution liability,
cross liability and/or severability of interest, contingent employer's liability,
and where applicable no exclusion for excavation, collapse, shoring and
underpinning; and
(b) Commercial Automobile Liability insurance covering all owned, leased or
hired licensed motor vehicles used in connection with the Lands with a
- 10 -
combined limit of not less than $10,000,000.00 per occurrence for bodily
injury including death andlor property damage.
(c) An environmental impairment liability policy with a limit of ten million dollars
($10,000,000) per occurrence to include the following:
(i) physical damage to prope�ty including loss of use and the p�evention,
control and clean-up of land, the atmosphere or any watercourse or body
of water;
(ii) gradual or sudden and accidental pollution for events such as fire,
explosion or a sudden spill, as well as seepage over time; and
(iii) first and third-party ctean-up expenses, bodily injury and property
damage arising from a pollution event.
All insurance policies required to be held by EPCOR under this Agreement:
(a) must provide the Owner with 30 days written notice of cancellation;
(b) where applicable, must be primary and not contributory with, or in excess
of, any other insurance carried by the Owner;
(c) may use primary and/or umbrella liability insurance to achieve required
limits; and
(d} EPCOR will be responsible for payment of all premiums and deductible
amounts relating to the insurance policies required to be held by EPCOR
under this Agreement.
11.15 Costs of Registration
Any costs related to the registration of document with the appropriate land registry
office shall be the sole responsibility of EPCOR.
11.16 Minor Changes for Reference Plan
The parties agree that the Agreement may be executed without completion of the
Reference Plan in Section 1.1 hereof. Upon completion of the Reference Plan, the
parties agree that this Agreement may be modified to include insertion of the
Reference Plan.
11.17 In this Agreement:
11.17.1 the word "shall" is to be read and interpreted as mandatory;
11.17.2 the word "may" is to be read and interpreted as permissive; and
11.17.3 the word "Owner" shall be read and interpreted as meaning an
individual, a partnership, a corporation, a trust, an unincorporated
organization, a government, or any department or agency thereof, and
- 11 -
the heirs, executors, administrators or other legal representatives of
any individual.
11.18 Counterparts
This Agreement may be executed in any number of counterparts and all of which
taken together will constitute one and the same instrument. All parties agree that
this Agreement may be transmitted by telecopier or electronic transmission via
email and that the reproduction of signatures by way of telecopier or electronic
transmission via email were executed originals will be treated as though such
reproduction were executed originals and each party unde�takes to provide the
other with a copy of this Agreement bearing original signatures within a reasonable
time after written request therefore.
IN WITNESS WHEREOF EPCOR AND THE OWNER HAVE EXECUTED THIS AGREEMENT
ON THE� ,�f DAY OF J�"t� , 2021.
EPCOR: EPCOR NATURAL GAS LIMITED
PARTNERSHIP, by its general partner
EPCOR ONTARIO UTILITIES INC.
;
� �
Per: �� ��- c/s
�
Name:I'`�iM-cC-- ,3��C--�(t- ._sti��.w��-t ,
Position:�'t����i'f-L :'�t.�,{+-t�i�� Q.fl��'�/�'�
Ci�S i 0�+--��Zc� -
I have authority to bind the Corporation
OWNER: THE CORPORATION OF THE
MUNICIPALITY OF KINCARDINE
Per:
��^�"�^
Gerry GI er,May
Pe :
Sharon Chambers, CAO
We have authority to bind the Corporation.
SCHEDULE "A"
LANDS
PT LT 3 E/S QUEEN ST PL KINCARDINE PT 1,3R993; KINCARDINE being PIN 33309-0226(LT)
EPCOR UTILITIES N
PRELIMINARY PROPERTY SKETCH
EPC�i�R SOUTH BRUCE NASCEDULEAIPELINE PROJECT W E
PIN 33309-0226
PT LT 3 E/5 DUEEN ST PL KINCARDINE PT 7,3R993; S
KINCARDINE
SURFACE LANO AGENT OWNER(S). AREA(S)
PROPERTVAREA 0232Ac 939m2
MCORqMTIONOIMTOW110I1UK�1110iME qREAREQUIRED�. 0.021Ac.93m2
SIGNED ON
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Comments/Notes:
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1
Maintenance Easement Agreement
PIPELINE EASEMENT
THIS AGREEMENT made the_day of , 2021.
BETWEEN:
EPCOR NATURAL GAS LIMITED PARTNERSHIP
("EPCOR")
- and-
THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE (the "Owner")
WHEREAS:
A. The Owner is the registered owner of an estate in fee simpie, subject to such
encumbrances, liens and interests as are at the date hereof set forth in the parcel register,
in the lands situated in the Province of Ontario and legally described as:
PIN 33309-0261
PT LT 1 PL 61 (SUBDIVISION OF LT 6 E/S QUEEN ST); PT LT 2 PL 61 (SUBDIVISION OF LT 6
E/S QUEEN ST); PT LT 4 E/S QUEEN ST, 5 E/S QUEEN ST, 4 W/S
PRINCES ST, 5 W/S PRINCES ST PL KINCARDINE PT 2, 3R993;T/W R103615&S/T R103615
PARTIALLY RELEASED AS TO PT 2 3R9459 AS IN BR78676; MUNICIPALITY OF
KINCARDINE
B. The Owner has agreed to grant to EPCOR a right-of-way and easement across all or a
portion of the Lands (as defined below) in accordance with the terms and conditions
contained in this Agreement.
IN CONSIDERATION OF the mutual covenants and agreements set forth herein and for other
good and valuable consideration, the receipt and sufficiency of which is acknowledged by each
of the parties, and in consideration of the payment of the Fee (as defined below) by EPCOR to
the Owner, EPCOR and the Owner agree as follows:
1. GRANT
1.1 The Owner hereby grants, conveys and transfers unto EPCOR a non-exclusive
right, license, liberty, privilege and easement for a term of 21 years' less a day on,
over, across, along, in, under and through that portion of the Lands (as defined
below) outlined in red and/or shown as cross-hatched on the attached Schedule
"A" and described as follows those parts of:
PIN 33309-0261
PT LT 1 PL 61 (SUBDIVISION OF LT 6 E/S QUEEN ST); PT LT 2 PL 61 (SUBDIVISION
OF LT 6 E/S QUEEN ST); PT LT 4 E/S QUEEN ST, 5 E/S QUEEN ST, 4 W/S
PRINCES ST, 5 W/S PRINCES ST PL KINCARDINE PT 2, 3R993; T/W R103615 & S/T
R103615 PARTIALLY RELEASED AS TO PT 2 3R9459 AS IN BR78676; MUNICIPALITY
OF KINCARDINE;
being parts • on Reference Plan �](the"Lands").
�
-2 -
to lay down, construct, operate, maintain, inspect, patrol (including aerial patrol),
alter, relocate, remove, replace, reconstruct and repair a line of pipe together with
all facilities or works of EPCOR useful in connection with or incidental to its
undertaking, including, but without limiting the generality of the foregoing, all such
pipes, drips, valves, fittings, connections, meters, cathodic protection equipment
and other equipment and appurtenances, whether or not similar to the foregoing,
as may be useful or convenient in connection therewith or incidental thereto for the
carriage,transmission, conveyance,transportation and handling of oil, natural and
artificial gas and other gaseous or liquid hydrocarbons and any product or by-
product thereof (such line of pipe together with such related facilities or works
being referred to collectively as the "Pipeline"). Nofinrithstanding anything else
herein, the Owner shall not grant any of the foregoing rights to any other person
without the prior written consent of EPCOR which shall not be unreasonably
withheld.
2. FEE
2.1 Upon the execution of this Agreement by EPCOR and the Owner, EPCOR shall
pay to the Owner the sum of One Dollar ($1.00) exclusive of Harmonized Sales
Tax(the"Fee"), the receipt of which is acknowledged by the Owner. The payment
of the Fee by EPCOR is the sole consideration and inducement for the execution
by the Owner of this Agreement and is the total compensation payable by EPCOR
to the Owner for the right to use the Lands as stated in this Agreement.
3. RIGHT OF ACCESS
3.1 EPCOR 5hall have the right at any time and from time to time to do whatever may
be required for the enjoyment of the rights granted under this Agreement, including
the removal of any boulder or rock or the trimming and removal of all trees, shrubs
and other vegetation on, over, across, along, in, under and through the Lands.
3.2 Upon execution of this Agreement by EPCOR and the Owner, EPCOR may
ingress and egress at any and all times on, over, along, across, along, in, under
and through the Lands with its servants, agents, employees, contractors and
subcontractors (collectively, the "Authorized Representatives"), on foot and/or
with vehicles, supplies, machinery and equipment, for all purposes useful or
convenient in connection with or incidental to the exercise and enjoyment of the
rights granted pursuant to this Agreement.
3.3 EPCOR and its Authorized Representatives shall have the right of ingress and
egress from the Lands at any and all times on, aver across, along, in, under and
through the Lands for the purposes of exercising the rights granted under this
Agreement. This right of access shall be used only in cases of necessity or
emergency, as determined by EPCOR in EPCOR's sole and absolute discretion.
EPCOR shall pay reasonable compensation to the Owner of the Lands for any
damage caused by EPCOR and its Authorized Representatives in the exercise of
the right of access as granted to EPCOR under this Clause 3.3.
3.4 The rights, licenses, liberties, privileges and easements specifically described in
Clauses 1 and 3 are being referred to collectively as the"Easement Rights".
✓"
-3 -
4. PIPELINE
4.1 Notwithstanding any rule of law or equity to the contrary, the Pipeline shall at all
times remain a chattel and the personal property of EPCOR or its assigns and shall
not become part of the Lands, notwithstanding that it may be annexed or affixed
to the Lands or abandoned by EPCOR.
4.2 EPCOR shall install, construct, operate and maintain the Pipeline in a responsible
manner so as to minimize damage to the Lands and shall, where practicable, after
any such work restore the Lands to substantially its original level and condition,
save and except for any soil rise above grade to allow for soil settfement (the
"Restoration Work"). EPCOR shall not be responsible for any damages caused
by subsidence after levelling is completed, provided the subsidence does not occur
as a result of negligence on the part of EPCOR. Notwithstanding the foregoing, or
Clause 7.1, EPCOR shall only be obligated to compensate the Owner for damage
to buildings or improvements that may be placed within the Lands,and arising from
the exercise by EPCOR of its rights under this Agreement, if EPCOR has given its
prior written consent pursuant to Clause 5.2 to the placement of such buildings or
improvements within the Lands.
4.3 If EPCOR has not commenced the Restoration Work within a period of ninety(90)
days following completion of the Pipeline,the Owner may after thirty(30}days prior
written notice, complete the Restoration Work, in accordance with all applicable
requirements including TSSA requirements and if such requirements must be
completed by a natural gas utility the Owner shall not complete any portion of the
Restoration Work governed by those requirements, provided there is no
interference with the Easement Rights. EPCOR shall pay to the Owner within
fifteen (15) business days following demand, all reasonable amounts paid by the
Owner in respect of such Restoration Work.
4.4 EPCOR shall have the right to temporarily fence and use such portions of the
Lands as may in its opinion be required. If at any time EPCOR shall require
temporary fencing for maintenance or operational reasons, such fencing shall be
temporary and EPCOR shall obtain the prior written consent of the Owner, acting
reasonably, as to the type, term and location of any fencing and shall locate such
temporary fencing insofar as may be practicable so to do, in such a fashion as to
provide a minimum of inconvenience to the Owner. EPCOR shall furnish to the
Owner a plan of the intended location. EPCOR shall within a period of thirty (30)
days following completion of the Pipeline, compensate the Owner for any
inconvenience caused to the Owner and for all damage occurring as a result of
fencing any such portion of the Lands.
4.5 EPCOR may at any time for whatsoever reason or cause abandon the Pipeline in
accordance with the then-applicable legislation, regulations and govemmental
directions. In the event of the abandonment of the Pipeline, EPCOR may, at its
option, either leave the Pipeline in place or remove it provided this option remains
in accordance with the then-applicable legislation. If EPCOR leaves the Pipeline
in place EPCOR shall complete decommissioning procedures and comply with all
applicable legislation. In the event of removal, EPCOR shall consenre, reclaim
and remediate the portion of the Lands affected by the exercise of the rights herein
granted, insofar as it is practicable to do so and in accordance with the then-
�
-4-
applicable legislation, regulations and governmental directions, In the event of
removal or decommissioning, as the case may be, and subject to the then-
applicable legislation, EPCOR agrees to discharge this Agreement and the
Easement Rights in the appropriate Land Registry Office within 180 days from the
effective date of the removal of the Pipeline or the completion of the
decommissioning of the Pipeline.
5. OWNER'S USE OF LANDS
5.1 The Owner shall not use the Lands in any manner which may conflict with the
rights of EPCOR as granted to EPCOR pursuant to this Agreement.
5.2 The Owner shall not, without the prior written consent of EPCOR which consent
shall not be unreasonably withheld, stockpile, excavate, drill, install, erect,
construct or place above, through, on or under the Lands any pavement, building,
fence, pit, well, pipe, foundation, sidewalk, or other structure or improvement, or
do or permit to be done any mining, quarrying, land levelling or other work or
activity of any like or similar nature on, in or under the Lands. The Owner shall not
permit any of these activities to occur by others.
5.3 The Owner shall not alter the surface grade level of the Lands in any manner which
would affect the rights granted to EPCOR pursuant to this Agreement.
5.4 The Owner shall not plant any trees within the Lands. Existing trees on the Lands
shall not be removed without the prior written consent of the Owner.
5.5 The Owner shall not store or otherwise place toxic, hazardous, dangerous,
flammable, potentially explosive, noxious or waste substances or contaminants
(the "Hazardous Materials") within the Lands, nor shall the Owner permit the
storage or placement by a third party of such substances within the Lands.
5.6 The Owner shall be responsible for the maintenance of the Lands, including but
not limited to such items as grass cutting and clean-up, replacement and repair of
the Lands in such a manner that it shall be suitable at all times for EPCOR's use
as permitted by this Agreement. The Owner shall undertake any maintenance
directed by EPCOR to maintain the said Lands within sixty(80) days of receiving
written notification.
5.7 Subject to the foregoing and to the provisions of applicable legislation, regulations
and governmental directions, and provided that there is no interference with the
Easement Rights, the Owner shall have the right to use and enjoy the Lands. In
addition, EPCOR hereby grants permission to the Owner to cross the buried
Pipeline with ordinary farming vehicles as necessary in connection with ordinary
cultivation, as such vehicles are defined by EPCOR from time to time and
communicated in writing to the Owner at the address set out in Clause 9.
6. ENVIRONMENTAL OBLIGATIONS
6.1 EPCOR and the Owner shall comply with all applicable legislation, regulations and
governmental direction dealing with environmental issues, including the
Hazardous Materials (the "Environmental Laws"), related to the Lands.
r
-5 -
6.2 The Owner represents and warrants that the Lands have not been used for the
storage of the Hazardous Materials. If EPCOR encounters any Hazardous
Materials in undertaking any work within the Lands, it shall give notice to the
Owner. At the expense of the Owner, EPCOR (or, at EPCOR's option, the Owner)
shall effect the removal of such Hazardous Materials in accordance with the
Environmental Laws.
6.3 The responsibility of EPCOR and the Owner with respect to environmental
obligations, as required by this Agreement, shall continue to be enforceable during
and after the termination of this Agreement.
7. INDEMNITY AND COMPENSATION
7.1 EPCOR acknowledges and agrees that, in exercising any of its rights under this
Easement Agreement, it shall do so at its own risk and expense. Unless the loss
or damage is directly attributable to the gross negligence or willful misconduct of
the Owner, its elected officials, officers, employees and agents and those persons
for whom the Owner is responsible in law, EPCOR shall not have a claim against
the Owner for any loss or damage by whomsoever caused to EPCOR's property.
Except for the gross negligence or willful misconduct of the Owner, its employees,
agents, contractors, subcontractors and those persons for whom the Owner is
responsible in law, EPCOR shall:
(a) be liable to the Owner for; and
(b) indemnify and save harmless the Owner, its employees, agents,
contractors, subcontractors and those persons for whom the Owner is
responsible in law from and against
any and all claims, suits, actions, demands, expenses, damages and costs which
may be brought or made against the Owner or which the Owner may pay or incur
by reason of any breach,violation or non-performance by EPCOR of any covenant,
term or provision of this Agreement or by reason of the gross negligence or willful
misconduct of EPCOR, its agents, employees, contractors, subcontractors and
those persons for whom EPCOR is responsible in law, in the exercise of the rights
as granted to EPCOR under this Agreement. This indemnity shall be in addition to
and not in lieu of any insurance to be provided by EPCOR in accordance with this
Easement Agreement and shall survive this Easement Agreement.
8. QUIET ENJOYMENT
8.1 EPCOR by performing and observing the terms and conditions of this Agreement
shall and may peaceably hold and enjoy all the rights granted under this
Agreement,without hindrance, molestation or interruption on the part of the Owner
or any person claiming by, through, under, from or in trust for, the Owner.
9. ADDRESS FOR CONSENT OR NOTICE
9.1 Any written consent required to be obtained from, and any notices to be given to,
EPCOR or the Owner, as the case may be, pursuant to this Agreement shall be in
writing and obtained or effected by delivering the request or notice to EPCOR or
the Owner in person or by email, registered mail, postage prepaid, addressed as
-6 -
follows:
To EPCOR:
EPCOR Natural Gas Limited Partnership
Attention: General Manager
39 Beech Street East
Alymer ON N5H 3J6
Email:
To the Owner:
The Corporation of the Municipality of Kincardine
1475 Concession 5
Kincardine, ON
N2Z 2X6
Attention: Clerk
Email: jlawrieCa�kincardine.ca
A notice will be effective on: (i) the other party's receipt of it; or (ii) if sent by
registered mail, on the earlier of the other party's receipt of it and the seventh day
after mailing it.
10. DISPUTE RESOLUTION
10.1 In the event of a determination by either party in regard to a matter in dispute
between EPCOR and the Owner as to the interpretation or effect of any of the
terms or conditions of this Agreement, and where notice of such determination has
been delivered to EPCOR or the Owner, as the case may be, the determination
shall be conclusively deemed to have been accepted by the parties, unless,within
ten (10) days of the receipt of notice of the determination the party receiving the
notice gives written notice to the other party (the "Arbitration Notice") of their
desire to have the matter in dispute resolved by arbitration.
10.2 Within seven (7)days of receipt of the Arbitration Notice, the parties shall mutually
appoint an arbitrator (the "Arbitrator"). In the event that the parties shall fail to
agree on the appointment of the Arbitrator, then either party may, on written notice
to the other, apply to the Ontario Superior Court of Justice for the appointment of
the Arbitrator, pursuant to the Arbitration Act, 1991, S.O. 1991, c. 17, as amended
(the "Arbitration AcY').
10.3 The seat of arbitration shall be Kincardine, Ontario.
10.4 The Arbitrator shall be directed to make its determination on the basis of a
presumption that this Agreement does not require amendments. Any
determination of the Arbitrator shall include a determination as to payment of the
costs of the arbitration. The determination of the Arbitrator shall be final and
binding on the parties and there shall be no right to appeal of such decision to the
courts.
ic
'7 '
10.5 Except as modified by this Agreement, the provisions of the Arbitration Act and its
regulations or any successive legislation shall apply.
11. GENERAL
11.1 Entire Agreement
There are no conditions, either subsequent or precedent, except as stated in this
Agreement and in the letter of understanding between the Parties dated November
5, 2020 (the"LOU"). This Agreement and the LOU represent the entire agreement
between EPCOR and the Owner and no representations or warranties have been
made by EPCOR, except as stated in this Agreement and the LOU.
11.2 Governing Law
This Agreement shall be governed by and construed in accordance with the laws
in force in the Province of Ontario and the laws of Canada applicable therein.
11.3 Easement in Gross
The rights granted under this Agreement, including the Easement Rights, are
declared to be an easement in gross.
11.4 Further Assurances
The parties hereto will execute such further assurances of the Lands and the rights
granted under this Agreement as may be required.
11.5 Assignment
EPCOR shall, without the consent of the Owner, but upon seven (7) days prior
written notice, have the right to assign, in whole or in part, to any person,
partnership, trust, government, agency or corporation, the rights granted,
transferred and conveyed under this Agreement, including the Easement Rights,
provided that the assignee shall execute and deliver an assignment agreement in
a form to be provided by EPCOR, whereby the assignee agrees to assume and be
bound by the terms and conditions of this Agreement. Such notice shall include
the notice particulars as required by Clause 9.1.
11.6 EPCOR's use of Lands
EPCOR shall, without the consent of the Owner, have the right to grant the right to
use the Lands, in whole or in part, in accordance with the terms and conditions
contained in this Agreement to any person, partnership,trust, government, agency
or corporation.
11.7 Enurement
This Agreement, including all covenants contained herein and all rights granted
hereunder, is and shall be of the same force and effect for all intents and purposes
as a covenant running with the Lands and shall extend to, be binding upon and
-8 -
enure for the benefit of the heirs, executors, administrators, successors-in-title and
assigns of the parties respectively.
11.8 Severability
If any term or condition of this Agreement is invalid or unenforceable under any
applicable statute or is declared invalid or unenforceable by a court of competent
jurisdiction, then such term or condition shall be deemed to be severed from this
Agreement, provided however, that the remainder of this Agreement shall not be
affected, shall continue in full force and effect and each remaining term and
condition shall be valid and be enforced to the fullest extent permitted by law.
11.9 Additional Taxes
EPCOR agrees that no taxes, rates, assessments, charges, levies or impositions
of any kind or nature of any governmental authority. Including without limitation
property taxes on the pipeline, shall be payable by or placed upon the Owner in
relation to any use of the Lands by EPCOR pursuant to this Agreement, and if any
such taxes, rates, assessments, charges, levies or impositions shall be levied,
imposed, or placed, EPCOR shall make payment thereof. All taxes or
assessments in the nature of sales taxes, good and services taxes or value added
taxes which may be charged, levied or assessed as a result of this Agreement,
whether or not such taxes are charged, levied or assessed as against the Owner,
shall be the responsibility of EPCOR, and EPCOR shall on written demand by the
Owner, pay to the Owner any and all such taxes.
11.10 Outstanding Charges, Taxes, Liens, etc.
Notwithstanding any other provision in this Agreement, if EPCOR determines that:
(a) there are outstanding charges, taxes, builders' liens, writs of execution,
judgments or other encumbrances which are registered against the Lands;
or
(b) there are any overdue amounts outstanding under any agreement for sale,
mortgage or other financial encumbrance that is registered against the
Lands;
EPCOR may, but is not obligated to, pay all or a portion of the compensation or
other amounts payable under this Agreement to the holder of such charge, lien,
writ of execution, judgment, mortgage or other financial encumbrance, or to such
vendor or mortgagee to satisfy and discharge such encumbrance or to obtain a
postponement from the encumbrance holder. The payment of any amount to such
third party shall be deemed to be payment of such amount to the Owner. For
greater certainty, EPCOR shall not be required to obtain the Owner's consent prior
to making such payment. EPCOR shall provide to the Owner written confirmation
of any such payments within thirty(30)days of making such payments.
11.11 Sole Remedy
It is understood and agreed that notwithstanding any other provision in this
Agreement and notwithstanding any rights that any person having an interest may
-9 -
have in law or in equity, should EPCOR fail to pay any payments payable
hereunder, the sole remedy of any such person having an interest shall be to
recover from EPCOR such amount and any interest payable thereon, and in no
event shall such person having an interest for whatever reason, interfere with,
hinder, molest or interrupt EPCOR in its enjoyment of any of the rights granted,
transferred and conveyed under this Agreement, including the Easement Rights.
11.12 Personallnformation
The Owner consents to the collection and use of its personal information within
this Agreement. EPCOR collects this type of personal information for the purposes
of general land rights acquisition and regulatory disclosure. The Owner consents
to the collection, use and disclosure of its personal information for these legitimate
business purposes in relation to land matters of EPCOR. The Owner is a municipal
corporation incorporated pursuant to the Municipal Act, 2001, S.O. 2001, c. 25, as
amended and is subject to the Municipal Freedom of lnformation and Protection
of Privacy Acf, R.S.O. 1990, c. M.56, as amended ("MIFFPA"). EPCOR agrees
that MIFFPA applies to all information or records within EPCOR's custody or
control that are collected or created specifically for the purposes of this Agreement.
11.13 Survival of Obligations
Any term or provision in this Agreement, which, in order to be given its fullest
intended effect, must extend past the expiration or termination of this Agreement
will survive the expiration or termination of this Agreement, including Articles 6, 7
and 10.
11.14 Insurance
Throughout the term of this Agreement, the Owner shall maintain in full force and
effect insurance coverage to the levels of a reasonable owner.
Throughout the term of this Agreement, EPCOR will maintain in full force and effect
the following insurance:
(a) Commercial General Liability insurance in an amount of not less than
$10,000,000.00 per occurrence for bodily injury including death and/or
p�operty damage, which will include the following extensions: contractual
liability, non-owned automobile, products and completed operations,
broad form property damage, sudden and accidental pollution liability,
cross liability and/or severability of interest, contingent employer's liability,
and where applicable no exclusion for excavation, collapse, shoring and
underpinning; and
(b) Commercial Automobile Liability insurance covering all owned, leased or
hired licensed motor vehicles used in connection with the Lands with a
combined limit of not less than $10,000,000.00 per occurrence for bodily
injury including death and/or property damage.
(c) An environmental impairment liability policy with a limit of ten million dollars
($10,000,000) per occurrence to include the following:
,,
- 10 -
(i) physical damage to property including loss of use and the prevention,
control and clean-up of land,the atmosphere or any watercourse or body
of water;
(ii) gradual or sudden and accidental pollution for events such as fire,
explosion or a sudden spill, as well as seepage over time; and
(iii) first and third-party clean-up expenses, bodily injury and property
damage arising from a pollution event.
All insurance policies required to be held by EPCOR under this Agreement:
(a) must provide the Owner with 30 days written notice of cancellation;
(b) where applicable, must be primary and not contributory with, or in excess
of, any other insurance carried by the Owner;
(c) may use primary and/or umbrella liability insurance to achieve required
limits; and
(d) EPCOR will be responsible for payment of all premiums and deductible
amounts relating to the insurance policies required to be held by EPCOR
under this Agreement.
11.15 Costs of Registration
Any costs related to the registration of document with the appropriate land registry
office shall be the sole responsibility of EPCOR.
11.16 Minor Changes for Reference Plan
The parties agree that the Agreement may be executed without completion of the
Reference Plan in Section 1.1 hereof. Upon completion of the Reference Plan, the
parties agree that this Agreement may be modified to include insertion of the
Reference Plan.
11.17 In this Agreement:
11.17.1 the word "shall" is to be read and interpreted as mandatory;
11.17.2 the word "may" is to be read and interpreted as permissive; and
11.17.3 the word "Owner" shall be read and interpreted as meaning an
individual, a partnership, a corporation, a trust, an unincorporated
organization, a government, or any department or agency thereof, and
, �
- 11 -
the heirs, executors, administrators or other legal representatives of
any individual.
11.18 Counterparts
This Agreement may be executed in any number of counterparts and all of which
taken together will constitute one and the same instrument. All parties agree that
this Agreement may be transmitted by telecopier or electronic transmission via
email and that the reproduction of signatures by way of telecopier or electronic
transmission via email were executed originals will be treated as though such
reproduction were executed originals and each party undertakes to provide the
other with a copy of this Agreement bearing original signatures within a reasonable
time after written request therefore.
IN WITNESS WHEREOF EPCOR AND THE OWNER HAVE EXECUTED THIS AGREEMENT
ON THE ��' DAY OF �N��� , 2021.
EPCOR: EPCOR NATURAL GAS LIMITED
PARTNERSHIP, by its general partner
EPCOR ONTARIO UTILITIES INC.
���� ���
Per. ��.. �� c/s
Name: I` h2i� � ��..�Y�.,� w.�.�-�c��
Position:C,��r�xRL���:��i"�� ��`��'��
C r'�Si �� ��fvt��
I have authority to bind the Corporation
OWNER: THE CORPORATION OF THE
MUNICIPALITY OF KINCARDINE
Per:
Gerry GI r, Mayor
P
Sharon Chambers, CAO
We have authority to bind the Corporation.
J � ,
SCHEDULE "A"
LANDS
PT LT 1 PL 61 (SUBDIVISION OF LT 6 E/S QUEEN ST); PT LT 2 PL 61 (SUBDIVISION OF LT 6
E/S QUEEN ST); PT LT 4 E/S CIUEEN ST, 5 E/S QUEEN ST, 4 W/S
PRINCES ST, 5 W/S PRINCES ST PL KINCARDINE PT 2, 3R993;T/W R103615&S/T R903615
PARTIALLY RELEASED AS TO PT 2 3R9459 AS IN BR78676; MUNICIPALITY OF
KINCARDINE being PIN 33309-0261 (LT)
� r
EPCOR UTILITIES N
PRELIMINARY PROPERTY SKETCH
EPC�� SOUTH BRUCE NASCHEDULE p'PEIiNE PROJECT W E
PIN 33309-0261
PT LT 1 PL 61(SUBDNISION OF LT 6 E/S QUEEN ST);P7 LT 2 S
PL 61(SUBDNISION OF LT 6 E/S QUEEN ST);PT LT 4 E/S
SURFACE LAND AGENT OWNER(S) AREA(S)
PROPERTY MEA 1.731 Ac 6987 m2
mecaeroiurar�an�euw�c�w��mor.e�c�uau� �pEpRE�UIRED: 0.103Ae.418m2
SIGNED ON
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Commenls/Notes:
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LE G E N D NOTE:
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LANDSOLUTIONS oA,�: Zo2o-o��s
�_- Easement Area
201416 Urislea RoaO
Vau¢han,0�ta•ioL�LBSS siTE�o: KCP4
� Properly Llne Ofl�ce(905�851-B88D Faa(�03)190-DO50
w•.�v.landsolutions.ca
Maintenance Easement Agreement
PIPELINE EASEMENT
THIS AGREEMENT made the_day of , 2021.
BETWEEN:
EPCOR NATURAL GAS LIMITED PARTNERSHIP
("EPCOR")
- and -
THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE (the "Owner")
WHEREAS:
A. The Owner is the registered owner of an estate in fee simple, subject to such
encumbrances, liens and interests as are at the date hereof set forth in the parcel register,
in the lands situated in the Province of Ontario and legally described as:
PIN 33309-0417
LT 1 & PT LT 2 PL 61(SUBDIVISION OF LT 7 W/S PRINCES ST), PTS 1 & 3 3R9459; PT LT 7 E/S
QUEEN ST PL KINCARDINE & PT LT D PL 246, PT 4 3R9459; S/T EASEMENT OVER PTS 3 & 4
3R9459 AS IN R64332; T/W R64332; SUBJECT TO AN EASEMENT OVER PT LTS 1 & 2 PL fi1
(SUBDIVISION OF LT 7 W/S PRINCES ST)&PT LT 7 E/S QUEEN ST PL KINCARDINE&PT LT D PL
246, PT5 1 &4 3R9459 IN FAVOUR OF PT LTS 1 &2 PL 61 (SUBDIVISION OF LT 6 E/S QUEEN ST)
AS IN BR76861; MUNICIPALITY OF KINCARDINE
B. The Owner has agreed to grant to EPCOR a right-of-way and easement across afl or a
portion of the Lands (as defined below) in accordance with the terms and conditions
contained in this Agreement.
IN CONSIDERATION OF the mutual covenants and agreements set forth herein and for other
good and valuable consideration, the receipt and sufficiency of which is acknowledged by each
of the parties, and in consideration of the payment of the Fee (as defined below) by EPCOR to
the Owner, EPCOR and the Owner agree as follows:
1. GRANT
1.1 The Owner hereby grants, conveys and transfers unto EPCOR a non-exclusive
right, license, liberty, privilege and easement for a term of 21 years' less a day on,
over, across, along, in, under and through that portion of the Lands (as defined
below) outlined in red and/or shown as cross-hatched on the attached Schedule
"A" and described as follows those parts of:
PIN 33309-0417
LT 1 & PT LT 2 PL 61(SUBDIVISION OF LT 7 W/S PRINCES ST), PTS 1 &3 3R9459; PT LT
7 E/S QUEEN ST PL KINCARDINE & PT LT D PL 246, PT 4 3R9459; S/T
EASEMENT OVER PTS 3 & 4 3R9459 AS IN R64332; T/W R64332; SUBJECT TO AN
EASEMENT OVER PT LTS 1 &2 PL 61 (SUBDIVISION OF LT 7 W/S PRINCES ST)8� PT LT
7 E/S QUEEN ST PL KINCARDINE&PT LT D PL 246, PTS 1 &4 3R9459 IN FAVOUR OF PT
LTS 1 & 2 PL 61 (SUBDIVISION OF LT 6 E/S QUEEN ST) AS IN BR76861;
MUNICIPALITY OF KINCARDINE;
being parts • on Reference Plan �](the"Lands").
t
'2 '
to lay down, construct, operate, maintain, inspect, patrol (including aerial patrol),
alter, relocate, remove, replace, reconstruct and repair a line of pipe together with
all facilities or works of EPCOR useful in connection with or incidental to its
undertaking, including, but without limiting the generality of the foregoing, all such
pipes, drips, valves, fittings, connections, meters, cathodic protection equipment
and other equipment and appurtenances, whether or not similar to the foregoing,
as may be useful or convenient in connection therewith or incidental thereto for the
carriage,transmission, conveyance,transportation and handling of oil, natural and
artificial gas and other gaseous or liquid hydrocarbons and any product or by-
product thereof (such line of pipe together with such related facilities or works
being referred to collectively as the "Pipeline"). Notwithstanding anything else
herein, the Owner shall not grant any of the foregoing rights to any other person
without the prior written consent of EPCOR which shall not be unreasonably
withheld.
2. FEE
2.1 Upon the execution of this Agreement by EPCOR and the Owner, EPCOR shall
pay to the Owner the sum of One Dollar ($1.00) exclusive of Harmonized Sales
Tax(the"Fee°), the receipt of which is acknowledged by the Owner. The payment
of the Fee by EPCOR is the sole consideration and inducement for the execution
by the Owner of this Agreement and is the total compensation payable by EPCOR
to the Owner for the right to use the Lands as stated in this Agreement.
3. RIGHT OF ACCESS
3.1 EPCOR shall have the right at any time and from time to time to do whatever may
be required for the enjoyment of the rights granted under this Agreement, including
the removal of any boulder or rock or the trimming and removal of all trees,shrubs
and other vegetation on, over, across, along, in, under and through the Lands.
3.2 Upon execution of this Agreement by EPCOR and the Owner, EPCOR may
ingress and egress at any and all times on, over, along, across, along, in, under
and through the Lands with its servants, agents, employees, contractors and
subcontractors (collectively, the "Authorized Representatives"), on foot and/or
with vehicles, supplies, machinery and equipment, for all purposes useful or
convenient in connection with or incidental to the exercise and enjoyment of the
rights granted pursuant to this Agreement.
3.3 EPCOR and its Authorized Representatives shall have the right of ingress and
egress from the Lands at any and all times on, over across, along, in, under and
through the Lands for the purposes of exercising the rights granted under this
Agreement. This right of access shall be used only in cases of necessity or
emergency, as determined by EPCOR in EPCOR's sole and absolute discretion.
EPCOR shall pay reasonable compensation to the Owner of the Lands for any
damage caused by EPCOR and its Authorized Representatives in the exercise of
the right of access as granted to EPCOR under this Clause 3.3.
3.4 The rights, licenses, liberties, privileges and easements speci�cally described in
Clauses 1 and 3 are being referred to collectively as the �Easement Rights�.
-3 -
4. PIPELINE
4.1 Notwithstanding any rule of law or equity to the contrary, the Pipeline shall at ali
times remain a chattel and the personal property of EPCOR or its assigns and shall
not become part of the Lands, notwithstanding that it may be annexed or a�xed
to the Lands or abandoned by EPCOR.
4.2 EPCOR shall install, construct, operate and maintain the Pipeline in a responsible
manner so as to minimize damage to the Lands and shall, where practicable, after
any such work restore the Lands to substantially its original level and condition,
save and except for any soil rise above grade to allow for soil settlement (the
"Restoration Work"). EPCOR shall not be responsible for any damages caused
by subsidence after levelling is completed, provided the subsidence does not occur
as a result of negligence on the part of EPCOR. Notwithstanding the foregoing, or
Clause 7.1, EPCOR shall only be obligated to compensate the Owner for damage
to buildings or improvements that may be placed within the Lands,and arising from
the exercise by EPCOR of its rights under this Agreement, if EPCOR has given its
prior written consent pursuant to Clause 5.2 to the placement of such buildings or
improvements within the Lands.
4.3 If EPCOR has not commenced the Restoration Work within a period of ninety(90)
days following completion of the Pipeline, the Owner may after thirty(30)days prior
written notice, complete the Restoration Work, in accordance with all applicable
requirements including TSSA requirements and if such requirements must be
completed by a natural gas utility the Owner shall not complete any portion of the
Restoration Work governed by those requirements, provided there is no
interference with the Easement Rights. EPCOR shall pay to the Owner within
fifteen (15) business days following demand, all reasonable amounts paid by the
Owner in respect of such Restoration Work.
4.4 EPCOR shall have the right to temporarily fence and use such portions of the
Lands as may in its opinion be required. If at any time EPCOR shall require
temporary fencing for maintenance or operational reasons, such fencing shall be
temporary and EPCOR shall obtain the prior written consent of the Owner, acting
reasonably, as to the type, term and location of any fencing and shall locate such
temporary fencing insofar as may be practicable so to do, in such a fashion as to
provide a minimum of inconvenience to the Owner. EPCOR shall furnish to the
Owner a plan of the intended location. EPCOR shall within a period of thirty (30)
days following completion of the Pipeline, compensate the Owner for any
inconvenience caused to the Owner and for all damage occurring as a result of
fencing any such portion of the Lands.
4.5 EPCOR may at any time for whatsoever reason or cause abandon the Pipeline in
accordance with the then-applicable legislation, regulations and governmental
directions. In the event of the abandonment of the Pipeline, EPCOR may, at its
option, either leave the Pipeline in place or remove it provided this option remains
in accordance with the then-applicable legislation. If EPCOR leaves the Pipeline
in place EPCOR shall complete decommissioning procedures and comply with all
applicable legislation. In the event of removal, EPCOR shall conserve, reclaim
and remediate the portion of the Lands affected by the exercise of the rights herein
granted, insofar as it is practicable to do so and in accordance with the then-
-4 -
applicable legislation, regulations and governmental directions. In the event of
removal or decommissioning, as the case may be, and subject to the then-
applicable legislation, EPCOR agrees to discharge this Agreement and the
Easement Rights in the appropriate Land Registry Office within 180 days from the
effective date of the removal of the Pipeline or the completion of the
decommissioning of the Pipeline.
5. OWNER'S USE OF LANDS
5.1 The Owner shall not use the Lands in any manner which may conflict with the
rights of EPCOR as granted to EPCOR pursuant to this Agreement.
5.2 The Owner shall not, without the prior written consent of EPCOR which consent
shall not be unreasonably withheld, stockpile, excavate, drill, install, erect,
construct or place above, through, on or under the Lands any pavement, building,
fence, pit, well, pipe, foundation, sidewalk, or other structure or improvement, or
do or permit to be done any mining, quarrying, land levelling or other work or
activity of any like or similar nature on, in or under the Lands. The Owner shall not
permit any of these activities to occur by others.
5.3 The Owner shall not alter the surface grade level of the Lands in any manner which
would affect the rights granted to EPCOR pursuant to this Agreement.
5.4 The Owner shall not plant any trees within the Lands. Existing trees on the Lands
shall not be removed without the prior written consent of the Owner.
5.5 The Owner shall not store or otherwise place toxic, hazardous, dangerous,
flammable, potentially explosive, noxious or waste substances or contaminants
(the "Hazardous Materials") within the Lands, nor shall the Owner permit the
storage or placement by a third party of such substances within the Lands.
5.6 The Owner shall be responsible for the maintenance of the Lands, including but
not limited to such items as grass cutting and clean-up, replacement and repair of
the Lands in such a manner that it shall be suitable at all times for EPCOR's use
as permitted by this Agreement. The Owner shall undertake any maintenance
directed by EPCOR to maintain the said Lands within sixty (60) days of receiving
written notification.
5.7 Subject to the foregoing and to the provisions of applicable legislation, regulations
and governmental directions, and provided that there is no interFerence with the
Easement Rights, the Owner shall have the right to use and enjoy the Lands. In
addition, EPCOR hereby grants permission to the Owner to cross the buried
Pipeline with ordinary farming vehicles as necessary in connection with ordinary
cultivation, as such vehicles are defined by EPCOR from time to time and
communicated in writing to the Owner at the address set out in Clause 9.
6. ENVIRONMENTAL OBLIGATIONS
6.1 EPCOR and the Owner shall comply with all applicable legislation, regulations and
governmental direction dealing with environmental issues, including the
Hazardous Materials (the "Environmental Laws"), related to the Lands.
-5 -
6.2 The Owner represents and warrants that the Lands have not been used for the
storage of the Hazardous Materials. If EPCOR encounters any Hazardous
Materials in undertaking any work within the Lands, it shall give notice to the
Owner. At the expense of the Owner, EPCOR(or, at EPCOR's option, the Owner)
shall effect the removal of such Hazardous Materials in accordance with the
Environmental Laws.
6.3 The responsibility of EPCOR and the Owner with respect to environmental
obligations, as required by this Agreement, shall continue to be enforceable during
and after the termination of this Agreement.
7. INDEMNITY AND COMPENSATION
7.1 EPCOR acknowledges and agrees that, in exercising any of its rights under this
Easement Agreement, it shall do so at its own risk and expense. Unless the loss
or damage is directly attributable to the gross negligence or willful misconduct of
the Owner, its elected officials, officers, employees and agents and those persons
for whom the Owner is responsible in law, EPCOR shall not have a claim against
the Owner for any loss or damage by whomsoever caused to EPCOR's property.
Except for the gross negligence or willful misconduct of the Owner, its employees,
agents, contractors, subcontractors and those persons for whom the Owner is
responsible in law, EPCOR shall:
(a) be liable to the Owner for; and
(b) indemnify and save harmless the Owner, its employees, agents,
contractors, subcontractors and those persons for whom the Owner is
responsible in law from and against
any and all claims, suits, actions, demands, expenses, damages and costs which
may be brought or made against the Owner or which the Owner may pay or incur
by reason of any breach,violation or non-performance by EPCOR of any covenant,
term or provision of this Agreement or by reason of the gross negligence or willful
misconduct of EPCOR, its agents, employees, contractors, subcontractors and
those persons for whom EPCOR is responsible in law, in the exercise of the rights
as granted to EPCOR under this Agreement. This indemnity shall be in addition to
and not in lieu of any insurance to be provided by EPCOR in accordance with this
Easement Agreement and shall survive this Easement Agreement.
8. QUIET ENJOYMENT
8.1 EPCOR by performing and observing the terms and conditions of this Agreement
shall and may peaceably hold and enjoy all the rights granted under this
Agreement,without hindrance, molestation or interruption on the part of the Owner
or any person claiming by, through, under, from or in trust for, the Owner.
9. ADDRESS FOR CONSENT OR NOTICE
9.1 Any written consent required to be obtained from, and any notices to be given to,
EPCOR or the Owner, as the case may be, pursuant to this Agreement shall be in
writing and obtained or effected by delivering the request or notice to EPCOR or
the Owner in person or by email, registered mail, postage prepaid, addressed as
-6 -
follows:
To EPCOR:
EPCOR Natural Gas Limited Partnership
Attention: Generai Manager
39 Beech Street East
Alymer ON N5H 3J6
Email:
To the Owner:
The Corporation of the Municipaliry of Kincardine
1475 Concession 5
Kincardine, ON
N2Z 2X6
Attention: Clerk
Email: ilawrieCa�kincardine.ca
A notice will be efFective on: (i) the other party's receipt of it; or (ii) if sent by
registered mail, on the earlier of the other party's receipt of it and the seventh day
after mailing it.
10. DISPUTE RESOLUTION
10.1 In the event of a determination by either party in regard to a matter in dispute
between EPCOR and the Owner as to the interpretation or effect of any of the
terms or conditions of this Agreement, and where notice of such determination has
been delivered to EPCOR or the Owner, as the case may be, the determination
shall be conclusively deemed to have been accepted by the parties, unless,within
ten (1�) days of the receipt of notice of the determination the party receiving the
notice gives written notice to the other party (the "Arbitration Notice") of their
desire to have the matter in dispute resolved by arbitration.
10.2 Within seven(7)days of receipt of the Arbitration Notice, the parties shall mutually
appoint an arbitrator (the "Arbitrator"). In the event that the parties shall fail to
agree on the appointment of the Arbitrator,then either party may, on written notice
to the other, apply to the Ontario Superior Cou�t of Justice for the appointment of
the Arbitrator, pursuant to the Arbitration Act, 1991, S.O. 1991, c. 17, as amended
(the "Arbitration Act").
10.3 The seat of arbitration shall be Kincardine, Ontario.
10.4 The Arbitrator shall be directed to make its determination on the basis of a
presumption that this Agreement does not require amendments. Any
determination of the Arbitrator shall include a determination as to payment of the
costs of the arbitration. The determination of the Arbitrator shall be final and
binding on the parties and there shall be no right to appeal of such decision to the
courts.
-7 -
10.5 Except as modified by this Agreement, the provisions of the Arbitration Act and its
regulations or any successive legislation shall apply.
11. GENERAL
11.1 Entire Agreement
There are no conditions, either subsequent or precedent, except as stated in this
Agreement and in the letter of understanding between the Parties dated November
5, 2020(the"LOU"). This Agreement and the LOU represent the entire agreement
between EPCOR and the Owner and no representations or warranties have been
made by EPCOR, except as stated in this Agreement and the LOU.
11.2 Governing Law
This Agreement shall be governed by and construed in accordance with the laws
in force in the Province of Ontario and the laws of Canada applicable therein.
11.3 Easement in Gross
The rights granted under this Agreement, including the Easement Rights, are
declared to be an easement in gross.
11.4 Further Assurances
The parties hereto will execute such further assurances of the Lands and the rights
granted under this Agreement as may be required.
11.5 Assignment
EPCOR shall, without the consent of the Owner, but upon seven (7) days prior
written notice, have the right to assign, in whole or in part, to any person,
partnership, trust, government, agency or corporation, the rights granted,
transferred and conveyed under this Agreement, including the Easement Rights,
provided that the assignee shall execute and deliver an assignment agreement in
a form to be provided by EPCOR, whereby the assignee agrees to assume and be
bound by the terms and conditions of this Agreement. Such notice shall include
the notice particulars as required by Clause 9.1.
11.6 EPCOR's use of Lands
EPCOR shall, without the consent of the Owner, have the right to grant the right to
use the Lands, in whole or in part, in accordance with the terms and conditions
contained in this Agreement to any person, partnership,trust, govemment, agency
or corporation.
11.7 Enurement
This Agreement, including all covenants contained herein and all rights granted
hereunder, is and shall be of the same force and effect for all intents and purposes
as a covenant running with the Lands and shall extend to, be binding upon and
-8 -
enure for the benefit of the heirs,executors,administrators, successors-in-title and
assigns of the parties respectively.
11.8 Severability
If any term or condition of this Agreement is invalid or unenforceable under any
applicable statute or is declared invalid or unenforceable by a court of competent
jurisdiction, then such term or condition shall be deemed to be severed from this
Agreement, provided however, that the remainder of this Agreement shall not be
affected, shall continue in full force and effect and each remaining term and
condition shatl be valid and be enforced to the fullest extent permitted by law.
11.9 Additional Taxes
EPCOR agrees that no taxes, rates, assessments, charges, levies or impositions
of any kind or nature of any governmental authority. Including without limitation
property taxes on the pipeline, shall bP payable by or placed upon the Owner in
relation to any use of the Lands by EPCOR pursuant to this Agreement, and if any
such taxes, rates, assessments, charges, levies or impositions shall be levied,
imposed, or placed, EPCOR shall make payment thereof. All taxes or
assessments in the nature of sales taxes, good and services taxes or value added
taxes which may be charged, levied or assessed as a result of this Agreement,
whether or not such taxes are charged, levied or assessed as against the Owner,
shall be the responsibility of EPCOR, and EPCOR shall on written demand by the
Owner, pay to the Owner any and all such taxes.
11.10 Outstanding Charges, Taxes, Liens, etc.
Notwithstanding any other provision in this Agreement, if EPCOR determines that:
(a) there are outstanding charges, taxes, builders' liens, writs of execution,
judgments or other encumbrances which are registered against the Lands;
or
(b) there are any overdue amounts outstanding under any agreement for sale,
mortgage or other financial encumbrance that is registered against the
Lands;
EPCOR may, but is not obligated to, pay all or a portion of the compensation or
other amounts payable under this Agreement to the holder of such charge, lien,
writ of execution, judgment, mortgage or other financial encumbrance, or to such
vendor or mortgagee to satisfy and discharge such encumbrance or to obtain a
postponement from the encumbrance holder. The payment of any amount to such
third party shall be deemed to be payment of such amount to the Owner. For
greater certainty, EPCOR shall not be required to obtain the Owner's consent prior
to making such payment. EPCOR shall provide to the Owner written confirmation
of any such payments within thirty (30) days of making such payments.
11.11 Sole Remedy
It is understood and agreed that notwithstanding any other provision in this
Agreement and notwithstanding any rights that any person having an interest may
i
-9 -
I have in law or in equity, should EPCOR fail to pay any payments payable
' hereunder, the sole remedy of any such person having an interest shall be to
recover from EPCOR such amount and any interest payable thereon, and in no
event shall such person having an interest for whatever reason, interfere with,
hinder, molest or interrupt EPCOR in its enjoyment of any of the rights granted,
transferred and conveyed under this Agreement, including the Easement Rights.
11.12 Personallnformation
The Owner consents to the collection and use of its personal information within
I this Agreement. EPCOR collects this type of personal information for the purposes
I of general land rights acquisition and regulatory disclosure. The Owner consents
to the collection, use and disclosure of its personal information for these{egitimate
I business purposes in relation to land matters of EPCOR. The Owner is a municipal
corporation incorporated pursuant to the Municipal Act, 2001, S.O. 2001, c. 25, as
amended and is subject to the Municipal Freedom of lnformation and Protection
of Privacy Act, R.S.O. 1990, c. M.56, as amended ("MIFFPA"). EPCOR agrees
that MIFFPA applies to all information or records within EPCOR's custody or
control that are collected or created specifically for the purposes of this Agreement.
11.13 Survival of Obligations
! Any term or provision in this Agreement, which, in order to be given its fullest
intended effect, must extend past the expiration or termination of this Agreement
� will survive the expiration or termination of this Agreement, including Articles 6, 7
and 10.
11.14 Insurance
Throughout the term of this Agreement, the Owner shall maintain in full force and
effect insurance coverage to the levels of a reasonable owner.
Throughout the term of this Agreement, EPCOR will maintain in full force and effect
the following insurance:
(a) Commercial General Liability insurance in an amount of not less than
$10,000,000.00 per occurrence for bodily injury including death and/or
property damage, which will include the following extensions: contractual
liability, non-owned automobile, products and completed operations,
broad form property damage, sudden and accidental pollution liability,
cross liability and/or severability of interest, contingent employer's liability,
and where applicable no exclusion for excavation, collapse, shoring and
underpinning; and
(b) Commercial Automobile Liability insurance covering all owned, leased or
hired licensed motor vehicles used in connection with the Lands with a
combined limit of not less than $10,000,000.00 per occurrence for bodily
injury including death and/or property damage.
(c) An environmental impairment liability policy with a limit of ten million dollars
($10,000,000) per occurrence to include the following:
- 10 -
(i) physical damage to property including loss of use and the prevention,
control and clean-up of land,the atmosphere or any watercourse or body
of water;
(ii) gradual or sudden and accidental pollution for events such as fire,
explosion or a sudden spill, as well as seepage over time; and
(iii) first and third-parry clean-up expenses, bodily injury and property
damage arising from a pollution event.
All insurance policies required to be held by EPCOR under this Agreement:
(a) must provide the Owner with 30 days written notice of cancellation;
(b) where applicable, must be primary and not contributory with, or in excess
of, any other insurance carried by the Owner;
(c) may use primary and/or umbrella liability insurance to achieve required
limits; and
(d) EPCOR will be responsible for payment of all premiums and deductible
amounts relating to the insurance policies required to be held by EPCOR
under this Agreement.
11.15 Costs of Registration
Any costs related to the registration of document with the appropriate land registry
office shall be the sole responsibility of EPCOR.
11.16 Minor Changes for Reference Plan
The parties agree that the Agreement may be executed without completion of the
Reference Plan in Section 1.1 hereof. Upon completion of the Reference Plan, the
parties agree that this Agreement may be modified to include insertion of the
Reference Plan.
11.17 In this Agreement:
11.17.1 the word "shall" is to be read and interpreted as mandatory;
11.17.2 the word "may" is to be read and interpreted as permissive; and
11.17.3 the word "Owner" shall be read and interpreted as meaning an
individual, a pa�tnership, a corporation, a trust, an unincorporated
organization, a govemment, or any department or agency thereof, and
- 11 -
the heirs, executors, administrators or other legal representatives of
any individual.
11.18 Counterparts
This Agreement may be executed in any number of counterparts and all of which
taken together will constitute one and the same instrument. All parties agree that
this Agreement may be transmitted by telecopier or electronic transmission via
email and that the reproduction of signatures by way of telecopier or electronic
transmission via email were executed originals will be treated as though such
reproduction were executed originals and each party undertakes to provide the
other with a copy of this Agreement bearing original signatures within a reasonable
time after written request therefore.
IN WITNE S WHEREOF EPCOR AND THE OWNER HAVE EXECUTED THIS AGREEMENT
ON THE�DAY OF �J��--�� , 2021.
EPCOR: EPCOR NATURAL GAS LIMITED
PARTNERSHIP, by its general partner
EPCOR ONTARIO UTILITIES INC.
���
'�w��`-'"�� .
`---
Per: c/s
Name: �'�2I� r-��3�'�i Yi -��n,,�-t��-i
Position:C��-,t,� ,u_.�,�+�tY�-,1, �/}���vT2/�cz—��
c0�l�i/l�o •
I have authority to bind the Corporation
OWNER: THE CORPORATION OF THE
MUNICIPALITY OF KINCARDINE
�
Per:
Gerry ver,Ma r
Sharon Chambers, CAO
We have authority to bind the Corporation.
SCHEDULE "A"
LANDS
LT 1 & PT LT 2 PL 61(SUBDIVISION OF LT 7 W/S PRINCES ST), PTS 1 & 3 3R9459; PT LT
7 E/S QUEEN ST PL KINCARDINE & PT LT D PL 246, PT 4 3R9459; S/T
EASEMENT OVER PTS 3 & 4 3R9459 AS IN R64332; TNV R64332; SUBJECT TO AN
EASEMENT OVER PT LTS 1 &2 PL 61 (SUBDIVISION OF LT 7 W/S PRINCES ST)& PT LT
7 E/S QUEEN ST PL KINCARDINE & PT LT D PL 246, PTS 1 & 4 3R9459 IN FAVOUR OF
PT LTS 1 &. 2 PL 61 (SUBDIVISION OF LT 6 E/S QUEEN ST) AS IN BR76861;
MUNICIPALITY OF KINCARDINE being PIN 33309-0417(LT)
EPCOR UTILITIES N
PRELIMINARY PROPERTY SKETCH
EPC�R SOUTH BRUCE NASCHEDULE A PELINE PROJECT w E
PIN 33309-0417
LT 1 8 PT LT 2 PL 61(SUBOIVISION OF LT 7 W/S PRINCES Sn, S
PTS 7&3 3R9459;PT LT 7 E/S QUEEN ST PL KINCARDINE&
SURFACE LAND AGENT OWNER(S) AREA(S)
PROPERTYAREA 0.328Ac 7320 m2
mc coaroiunwi or nE uurir.�mor wwuRane qREA REOUIRED�, 0.010 Ac 40 m2
SIGNED ON
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Comments/Nates:
o ao eo iso n
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LEGEN D "o�:
L�MSquUo�LP and iti aete wOWM WovIE�no
wamiay nperdnp me�ocureq or mmpletenaca
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LANDSOLUTIONS �,�: zozo-os-,s
�_: Easement Area
201-116 C�rnlea Road
Vaughan,O�ta�i0UL855 SITE ID: KCP7
0 Property Line Ofli[e(905)851 8R80 Fax(403)790 0050
a��vw.iandsolutions.ca
Maintenance Easement Agreement
PIPELINE EASEMENT
THIS AGREEMENT made the_day of , 2021.
BETWEEN:
EPCOR NATURAL GAS LIMITED PARTNERSHIP
("EPCOR")
-and -
THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE (the "Owner")
WHEREAS:
A. The Owner is the registered owner of an estate in fee simple, subject to such
encumbrances, liens and interests as are at the date hereof set forth in the parcel register,
in the lands situated in the Province of Ontario and legally described as:
PIN 33309-0426
PT LT 1 DURHAM MARKET BLK PL KINCARDINE, PT 10 3R9688;SUBJECT TO AN EASEMENT
AS IN BR100412; SUBJECT TO AN EASEMENT OVER PT 10 3R9688 IN FAVOUR OF PT
l.T 9 DURHAM MARKET BLK PL KINCARDINE, PTS 1, 6, 7 & 9 3R9688 AS IN BR102141;
MUNICIPALITY OF KINCARDINE
B. The Owner has agreed to grant to EPCOR a right-of-way and easement across all or a
portion of the Lands (as defined below) in accordance with the terms and conditions
contained in this Agreement.
iN CONSIDERATION OF the mutual covenants and agreements set forth herein and for other
good and valuable consideration, the receipt and sufficiency of which is acknowledged by each
of the parties, and in consideration of the payment of the Fee (as defined below) by EPCOR to
the Owner, EPCOR and the Owner agree as follows:
1. GRANT
1.1 The Owner hereby grants, conveys and transfers unto EPCOR a non-exclusive
right, license, liberty, privilege and easement for a term of 21 years' less a day on,
over, across, along, in, under and through that portion of the �ands (as defined
below) outlined in red andlor shown as cross-hatched on the attached Schedule
"A" and described as follows those parts of:
PIN 33309-0426
PT LT 1 DURHAM MARKET BLK PL KINCARDINE, PT 10 3R9688; SUBJECT TO AN
EASEMENT AS IN BR100412; SUBJECT TO AN EASEMENT OVER PT 10 3R9688 1N
FAVOUR OF PT LT 1 DURHAM MARKET BLK PL KINCARDINE, PTS 1,6, 7&9 3R9688
AS IN BR102141; MUNICIPALITY OF KINCARDINE;
being parts •on Reference Plan �](the"Lands").
ta lay down, construct, operate, maintain, inspect, patrol (including aerial patrol),
alter, relocate, remove, replace, reconstruct and repair a line of pipe together with
all facilities or works of EPCOR useful in connection with or incidental to its
-2 -
undertaking, including, but without limiting the generality of the foregoing, all such
pipes, drips, valves, fittings, connections, meters, cathodic protection equipment
and other equipment and appurtenances, whether or not similar to the foregoing,
as may be useful or convenient in connection therewith or incidental thereto for the
carriage, transmission, conveyance,transportation and handling of oil, natural and
artificial gas and other gaseous or liquid hydrocarbons and any product or by-
product thereof (such line of pipe together with such related facilities or works
being referred to collectively as the "Pipeline"). Notwithstanding anything else
herein, the Owner shall not grant any of the foregoing rights to any other person
without the prior written consent of EPCOR which shall not be unreasonably
withheld.
2. FEE
2.1 Upon the execution of this Agreement by EPCOR and the Owner, EPCOR shall
pay to the Owner the sum of One Dollar ($1.00) exclusive of Harmonized Sales
Tax (the"Fee"), the receipt of which is acknowledged by the Owner. The payment
of the Fee by EPCOR is the sole consideration and inducement for the execution
by the Owner of this Agreement and is the total compensation payable by EPCOR
to the Owner for the right to use the Lands as stated in this Agreement.
3. RIGHT OF ACCESS
3.1 . EPCOR shall have the right at any time and from time to time to do whatever may
be required for the enjoyment of the rights granted under this Agreement, including
the removal of any boulder or rock or the trimming and removal of all trees, shrubs
and other vegetation on, over, across, along, in, under and through the Lands.
3.2 Upon execution of this Agreement by EPCOR and the Owner, EPCOR may
ingress and egress at any and all times on, over, along, across, along, in, under
and through the Lands with its servants, agents, employees, contractors and
subcontractors (collectively, the "Authorized Representatives"), on foot and/or
with vehicles, supplies, machinery and equipment, for all purposes useful or
convenient in connection with or incidental to the exercise and enjoyment of the
rights granted pursuant to this Agreement.
3.3 EPCOR and its Authorized Representatives shall have the right of ingress and
egress from the Lands at any and all times on, over across, along, in, under and
through the Lands for the purposes of exercising the rights granted under this
Agreement. This right of access shall be used only in cases of necessity or
emergency, as determined by EPCOR in EPCOR's sole and absolute discretion.
EPCOR shall pay reasonable compensation to the Owner of the Lands for any
damage caused by EPCOR and its Authorized Representatives in the exercise of
the right of access as granted to EPCOR under this Clause 3.3.
3.4 The rights, licenses, liberties, privileges and easements specifically described in
Clauses 1 and 3 are being referred to collectively as the"Easement Rights".
4. PIPELINE
4.1 Notwithstanding any rule of faw or equity to the contrary, the Pipeline shall at all
times remain a chattel and the personal property of EPCOR or its assigns and shall
-3 -
not become part of the Lands, notwithstanding that it may be annexed or affixed
to the Lands or abandoned by EPCOR.
4.2 EPCOR shall install, construct, operate and maintain the Pipeline in a responsible
manner so as to minimize damage to the Lands and shall, where practicable, after
any such work restore the Lands to substantially its original level and condition,
save and except for any soil rise above grade to allow for soil settlement (the
"Restoration Work"). EPCOR shall not be responsible for any damages caused
by subsidence after levelling is completed, provided the subsidence does not occur
as a result of negligence on the part of EPCOR. Notwithstanding the foregoing, or
Clause 7.1, EPCOR shall only be obligated to compensate the Owner for damage
to buildings or improvements that may be placed within the Lands, and arising from
the exercise by EPCOR of its rights under this Agreement, if EPCOR has given its
prior written consent pursuant to Clause 5.2 to the placement of such buildings or
improvements within the Lands.
4.3 If EPCOR has not commenced the Restoration Work within a period of ninety(90)
days following completion of the Pipeline,the Owner may after thirty(30)days prior
written notice, complete the Restoration Work, in accordance with all applicable
requirements including TSSA requirements and if such requirements must be
completed by a natural gas utility the Owner shall not complete any portion of the
Restoration Work governed by those requirements, provided there is no
interference with the Easement Rights. EPCOR shall pay to the Owner within
fifteen (15) business days following demand, all reasonable amounts paid by the
Owner in respect of such Restoration Work.
4.4 EPCOR shall have the right to temporarily fence and use such portions of the
Lands as may in its opinion be required. If at any time EPCOR shall require
temporary fencing for maintenance or operational reasons, such fencing shall be
temporary and EPCOR shall obtain the prior written consent of the Owner, acting
reasonably, as to the type, terrn and location of any fencing and shall locate such
temp�rary fencing insofar as may be practicable so to do, in such a fashion as to
provide a minimum of inconvenience to the Owner. EPCOR shall furnish to the
Owner a plan of the intended location. EPCOR shall within a period of thirty (30)
days following completion of .the Pipeline, compensate the Owner for any
inconvenience caused to the Owner and for all damage occurring as a result of
fencing any such portion of the Lands.
4.5 EPCOR may at any time for whatsoever reason or cause abandon the Pipeline in
accordance with the then-applicable legislation, regulations and governmental
directions. In the event of the abandonment of the Pipeline, EPCOR may, at its
option, either leave the Pipeline in place or remove it provided this option remains
in accordance with the then-applicable legislation. If EPCOR leaves the Pipeline
in place EPCOR shall complete decommissioning procedures and comply with all
applicable legislation. In the event of removal, EPCOR shall conserve, reclaim
and remediate the portion of the Lands affected by the exercise of the rights herein
granted, insofar as it is practicable to do so and in accordance with the then-
applicable legislation, regulations and governmental directions. In the event of
removal or decommissioning, as the case may be, and subject to the then-
applicable legislation, EPCOR agrees to discharge this Agreement and the
Easement Rights in the appropriate Land Registry Office within 180 days from the
-4-
effective date of the removal of the Pipeline or the completion of the
decommissioning of the Pipeline.
5. OWNER'S USE OF LANDS
5.1 The Owner shall not use the Lands in any manner which may conflict with the
rights of EPCOR as granted to EPCOR pursuant to this Agreement.
5.2 The Owner shall not, without the prior written consent of EPCOR which consent
shall not be unreasonably withheld, stockpile, excavate, drill, install, erect,
construct or place above, through, on or under the Lands any pavement, building,
fence, pit, well, pipe, foundation, sidewalk, or other structure or improvement, or
do or permit to be done any mining, quarrying, land levelling or other work or
activity of any like or similar nature on, in or under the Lands. The Owner shall not
permit any of these activities to occur by others.
5.3 The Owner shall not alter the surface grade level of the Lands in any manner which
would affect the rights granted to EPCOR pursuant to this Agreement.
5.4 The Owner shall not plant any trees within the Lands. Existing trees on the Lands
shall not be removed without the prior written consent of the Owner.
5.5 The Owner shall not store or otherwise place toxic, hazardous, dangerous,
flammable, potentially explosive, noxious or waste substances or contaminants
(the "Hazardous Materials") within the Lands, nor shall the Owner permit the
storage or placement by a third party of such substances within the Lands.
5.6 The Owner shall be responsible for the maintenance of the Lands, including but
not limited to such items as grass cutting and clean-up, replacement and repair of
the Lands in such a manner that it shall be suitable at all times for EPCOR's use
as permitted by this Agreement. The Owner shall undertake any maintenance
directed by EPCOR to maintain the said Lands within sixty (60) days of receiving
written notification.
5.7 Subject to the foregoing and to the provisions of applicable legislation, regulations
and governmental directions, and provided that there is no interference with the
Easement Rights, the Owner shall have the right to use and enjoy the Lands. In
addition, EPCOR hereby grants permission to the Owner to cross the buried
Pipeline with ordinary farming vehicles as necessary in connection with ordinary
cultivation, as such vehicles are defined by EPCOR from time to time and
communicated in writing to the Owner at the address set out in Clause 9.
6. ENVIRONMENTAL OBLIGATIONS
6.1 EPCOR and the Owner shall comply with all applicable legislation, regulations and
governmental direction dealing with environmental issues, including the
Hazardous Materials (the"Environmental Laws"), related to the Lands.
6.2 The Owner represents and warrants that the Lands have not been used for the
storage of the Hazardous Materials. If EPCOR encounters any Hazardous
Materials in undertaking any work within the Lands, it shall give notice to the
Owner. At the expense of the Owner, EPCOR(or, at EPCOR's option, the Owner)
-5 -
shall effect the removal of such Hazardous Materials in accordance with the
Environmental Laws.
6.3 The responsibility of EPCOR and the Owner with respect to environmental
obligations, as required by this Agreement, shall continue to be enforceable during
and after the termination of this Agreement.
7. INDEMNITY AND COMPENSATION
7.1 EPCOR acknowledges and agrees that, in exercising any of its rights under this
Easement Agreement, it shall do so at its own risk and expense. Unless the loss
or damage is directly attributable to the gross negligence or willful misconduct of
the Owner, its elected officials, officers, employees and agents and those persons
for whom the Owner is responsible in law, EPCOR shall not have a claim against
the Owner for any loss or damage by whomsoever caused to EPCOR's property.
Except for the gross negligence or willful misconduct of the Owner, its employees,
agents, contractors, subcontractors and those persons for whom the Owner is
responsible in law, EPCOR shall:
(a) be liable to the Owner for; and
(b) indemnify and save harmless the Owner, its employees, agents,
contractors, subcontractors and those persons for whom the Owner is
responsible in law from and against
any and all claims, suits, actions, demands, expenses, damages and costs which
may be brought or made against the Owner or which the Owner may pay or incur
by reason of any breach,violation or non-performance by EPCOR of any covenant,
term or provision of this Agreement or by reason of the gross negligence or willful
misconduct of EPCOR, its agents, employees, contractors, subcontractors and
those persons for whom EPCOR is responsible in law, in the exercise of the rights
as granted to EPCOR under this Agreement. This indemnity shall be in addition to
and not in lieu of any insurance to be provided by EPCOR in accordance with this
Easement Agreement and shall survive this Easement Agreement.
8. QUIET ENJOYMENT
8.1 EPCOR by perForming and observing the terms and conditions of this Agreement
shall and may peaceably hold and enjoy all the rights granted under this
Agreement,without hindrance, molestation or interruption on the part of the Owner
or any person claiming by, through, under, from or in trust for, the Owner.
9. ADDRESS FOR CONSENT OR NOTICE
9.1 Any written consent required to be obtained from, and any notices to be given to,
EPCOR or the Owner, as the case may be, pursuant to this Agreement shall be in
writing and obtained or effected by delivering the request or notice to EPCOR or
the Owner in person or by email, registered mail, postage prepaid, addressed as
follows:
-6 -
To EPCOR:
EPCOR Natural Gas Limited Partnership
Attention: General Manager
39 Beech Street East
Alymer ON N5H 3J6
Emaii:
To the Owner:
The Corporation of the Municipality of Kincardine
1475 Concession 5
Kincardine, ON
N2Z 2X6
Attention: Clerk
Email: Ilawrie(c�kincardine.ca
A notice will be effective on: (i) the other pa�ty's receipt of it; or (ii) if sent by
registered mail, on the earlier of the other party's receipt of it and the seventh day
after mailing it.
10. DISPUTE RESOLUTION
10.1 In the event of a determination by either party in regard to a matter in dispute
between EPCOR and the Owner as to the interpretation or effect of any of the
terms or conditions of this Agreement,and where notice of such determination has
been delivered to EPCOR or the Owner, as the case may be, the determination
shall be conclusively deemed to have been accepted by the parties, unless,within
ten (10) days of the receipt of notice of the determination the party receiving the
notice gives written notice to the other party (the "Arbitration Notice") of their
desire to have the matter in dispute resolved by arbitration.
10.2 Within seven (7)days of receipt of the Arbitration Notice, the parties shall mutually
appoint an arbitrator (the "Arbitrator"). In the event that the parties shall fail to
agree on the appointment of the Arbitrator,then either party may, on written notice
to the other, apply to the Ontario Superior Court of Justice for the appointment of
the Arbitrator, pursuant to the Arbitration Acf, 1991, S.O. 1991, c. 17, as amended
(the "Arbitration Act").
10.3 The seat of arbitration shall be Kincardine, Ontario.
10.4 The Arbitrator shall be directed to make its determination on the basis of a
presumption that this Agreement does not require amendments. Any
determination of the Arbitrator shall include a determination as to payment of the
costs of the arbitration. The determination of the Arbitrator shall be final and
binding on the parties and there shall be no right to appeal of such decision to the
courts.
-7-
10.5 Except as modified by this Agreement, the provisions of the Arbitration Act and its
regulations or any successive legislation shall apply.
11. GENERAL
11.1 Entire Agreement
There are no conditions, either subsequent or precedent, except as stated in this
Agreement and in the letter of understanding between the Parties dated November
5, 2020(the"LOU"). This Agreement and the LOU represent the entire agreement
between EPCOR and the Owner and no representations or warranties have been
made by EPCOR, except as stated in this Agreement and the LOU.
11.2 Governing Law
This Agreement shall be governed by and construed in accordance with the laws
in force in the Province of Ontario and the laws of Canada applicable therein.
11.3 Easement in Gross
The rights granted under this Agreement, including the Easement Rights, are
declared to be an easement in gross.
11.4 Further Assurances
The parties hereto will execute such further assurances of the Lands and the rights
granted under this Agreement as may be required.
11.5 Assignment
EPCOR shall, without the consent of the Owner, but upon seven (7) days prior
written notice, have the right to assign, in whole or in part, to any person,
partnership, trust, government, agency or corporation, the rights granted,
transferred and conveyed under this Agreement, including the Easement Rights,
provided that the assignee shall execute and deliver an assignment agreement in
a form to be provided by EPCOR, whereby the assignee agrees to assume and be
bound by the terms and conditions of this Agreement. Such notice shall include
the notice particulars as required by Clause 9.1.
11.6 EPCOR's use of Lands
EPCOR shall, without the consent of the Owner, have the right to grant the right to
use the Lands, in whole or in part, in accordance with the terms and conditions
contained in this Agreement to any person, partnership,trust, government, agency
or corporation.
11.7 Enurement
This Agreement, including all covenants contained herein and all rights granted
hereunder, is and shall be of the same force and effect for all intents and purposes
as a covenant running with the Lands and shall extend to, be binding upon and
-8 - .
enure for the benefit of the heirs, executors, administrators, successors-in-title and
assigns of the parties respectively.
11.8 Severability
If any term or condition of this Agreement is invalid or unenforceable under any
applicable statute or is declared invalid or unenforceable by a court of competent
jurisdiction, then such term or condition shall be deemed to be severed from this
Agreement, provided however, that the remainder of this Agreement shall not be
affected, shall continue in full force and effect and each remaining term and
condition shall be valid and be enforced to the fullest extent permitted by law.
11.9 Additional Taxes
EPCOR agrees that no taxes, rates, assessments, charges, levies or impositions
of any kind or nature of any governmental authority. Including without limitation
property taxes on the pipeline, shall be payable by or placed upon the Owner in
relation to any use of the Lands by EPCOR pursuant to this Agreement, and if any
such taxes, rates, assessments, charges, levies or impositions shall be levied,
imposed, or placed, EPCOR shall make payment thereof. All taxes or
assessments in the nature of sales taxes, good and services taxes or value added
taxes which may be charged, levied or assessed as a result of this Agreement,
whether or not such taxes are charged, levied or assessed as against the Owner,
shall be the responsibility of EPCOR, and EPCOR shall on written demand by the
Owner, pay to the Owner any and all such taxes.
11.10 Outstanding Charges, Taxes, Liens, etc.
Notwithstanding any other provision in this Agreement, if EPCOR determines that:
(a) there are outstanding charges, taxes, builders' liens, writs of execution,
judgments or other encumbrances which are registered against the Lands;
or
(b) there are any overdue amounts outstanding under any agreement for sale,
mortgage or other financial encumbrance that is registered against the
Lands;
EPCOR may, but is not obligated to, pay all or a portion of the compensation or
other amounts payable under this Agreement to the holder of such charge, lien,
writ of execution, judgment, mortgage or other financial encumbrance, or to such
vendor or mortgagee to satisfy and discharge such encumbrance or to obtain a
postponement from the encumbrance holder. The payment of any amount to such
third party shall be deemed to be payment of such amount to the Owner. For
greater certainty, EPCOR shall not be required to obtain the Owner's consent prior
to making such payment. EPCOR shall provide to the Owner written confirmation
of any such payments within thirty(30)days of making such payments.
11.11 Sole Remedy
It is understood and agreed that notwithstanding any other provision in this
Agreement and notwithstanding any rights that any person having an interest may
-9-
have in law or in equity, should EPCOR fail to pay any payments payable
hereunder, the sole remedy of any such person having an interest shall be to
recover from EPCOR such amount and any interest payable thereon, and in no
event shall such person having an interest for whatever reason, interfere with,
hinder, molest or interrupt EPCOR in its enjoyment of any of the rights granted,
transferred and conveyed under this Agreement, including the Easement Rights.
17.12 Personallnformation
The Owner consents to the collection and use of its personal information within
this Agreement. EPCOR collects this type of personal information for the purposes
of general land rights acquisition and regulatory disclosure. The Owner consents
to the collection, use and disclosure of its personal information for these legitimate
business purposes in retation to land matters of EPC�R. The Owner is a municipal
corporation incorporated pursuant to the Municipal Acf, 2001, S.O. 2001, c. 25, as
amended and is subject to the Municipal Freedom of Information and Protecfion
of Privacy Act, R.S.O. 1990, c. M.56, as amended ("MIFFPA"). EPCOR agrees
that MIFFPA applies to all information or records within EPCOR's custody or
control that are collected or created specifically for the purposes of this Agreement.
11.13 Survival of Obligations
Any term or provision in this Agreement, which, in order to be given its fullest
intended effect, must extend past the expiration or termination of this Agreement
will survive the expiration or termination of this Agreement, including Articles 6, 7
and 10.
11.14 Insurance
Throughout the term of this Agreement, the Owner shall maintain in full force and
effect insurance coverage to the levels of a reasonable owner.
Throughout the term of this Agreement, EPCOR will maintain in full force and effect
the following insurance:
(a) Commercial General Liability insurance in an amount of not less than
$10,000,000.00 per occurrence for bodily injury including death and/or
property damage, which will include the following extensions: contractual
liabi�ity, non-owned automobile, products and completed operations,
broad form property damage, sudden and accidental pollution liability,
cross liability and/or severability of interest, contingent employer's liability,
and where applicable no exclusion for excavation, collapse, shoring and
underpinning; and
(b) Commercial Automobile Liability insurance covering a11 owned, leased or
hired licensed motor vehicles used in connection with the Lands with a
combined limit of not less than $10,000,000.00 per occurrence for bodify
injury including death and/or property damage.
(c) An environmental impairment liability policy with a limit of ten million dollars
($10,000,000) per occurrence to include the following:
- 10-
(i) physical damage to property including loss of use and the prevention,
• control and clean-up of land,the atmosphere or any watercourse or body
of water;
(ii) gradual or sudden and accidental pollution for events such as fire,
explosion or a sudden spill, as well as seepage over time; and
(iii) first and third-party clean-up expenses, bodily injury and property
damage arising from a pol►ution event.
All insurance policies required to be held by EPCOR under this Agreement:
(a) must provide the Owner with 30 days written notice of cancellation;
(b) where applicable, must be primary and not contributory with, or in excess
of, any other insurance carried by the Owner;
(c) may use primary and/or umbrella liability insurance to achieve required
limits; and
(d) EPCOR will be responsible for payment of all premiums and deductible
amounts relating to the insurance policies required to be held by EPCOR
under this Agreement.
11.15 Costs of Registration
Any costs related to the registration of document with the appropriate land registry
office shall be the sole responsibility of EPCOR.
11.16 Minor Changes for Reference Plan
The parties agree that the Agreement may be executed without completion of the
Reference Plan in Section 1.1 hereof. Upon completion of the Reference Plan, the
parties agree that this Agreement may be modified to include insertion of the
Reference Plan.
11.17 In this Agreement:
11.17.1 the word "shall" is to be read and interpreted as mandatory;
11.17.2 the word "may" is to be read and interpreted as permissive; and
11.17.3 the word "Owner" shall be read and interpreted as meaning an
individual, a partnership, a corporation, a trust, an unincorporated
organization, a govemment, or any department or agency thereof, and
- 11 -
the heirs, executors, administrators or other legal representatives of
any individual.
11.18 Counterparts
This Agreement may be executed in any number of counterparts and all of which
taken together will constitute one and the same instrument. All parties agree that
this Agreement may be transmitted by telecopier or electronic transmission via
email and that the reproduction of signatures by way of telecopier or electronic
transmission via email were executed originals will be treated as though such
reproduction were executed originals and each party undertakes to provide the
other with a copy of this Agreement bearing original signatures within a reasonable
time after written request therefore.
IN WITNE�SS WHEREOF EP�OR AND THE OWNER HAVE EXECUTED THIS AGREEMENT
ON THE�'' � DAY OF �`�'`ys= , 2021.
EPCOR: EPCOR NATURAL GAS LIMITED
PARTNERSHIP, by its general partner
EPCOR ONTARIO UTILITIES INC.
�
Per: j �' /�����'��`-'��� c/s
J J'�,
Name:�'"�;�tc_ ����1—�--r^M^"�.-;.�'�-z—
Position: �;rr.�t-��� ,�-t,:�cr���, �.Qry�42�
�;.�5, �'""��1���
I have authority to bind the Corporation
OWNER: THE CORPORATION OF THE
MUNICIPALITY OF KINCARDINE
�
Per:
Gerry lover, Mayor
P r:
Sharon C ambers, CAO
We have authority to bind the Corporation.
SCHEDULE "A"
LANDS
PT LT 1 DURHAM MARKET BLK PL KINCARDINE,PT 10 3R9688;SUBJECT TO AN EASEMENT
AS IN BR100412; SUBJECT TO AN EASEMENT OVER PT 10 3R9688 IN FAVOUR OF PT
LT 1 DURHAM MARKET BLK PL KINCARDINE, PTS 1, 6, 7 & 9 3R9688 AS IN BR102141;
MUNICIPALITY OF KINCARDINE being PIN 33309-0426(LT)
EPCOR UTILITIES N
PRELIMINARY PROPERTY SKETCH
EPC�R SOUTHBRUCENASC EDULEAIPEIINEPROJECT W E
PIN 33309-0426
PT LT 1 DURHAM MARKET BIJC PL KINCARDINE,PT 10 S
3R9688;BUBJECTTOAN EASEMENTAS IN BRtOP412
SURfACE LAND AGENT OWNER(S) AREA(5)
PROVERTVAREA 0.02YAo Y1 m2
mcoonron�iwnorTH[ruearw✓rrwKwuwne uy�REOUIRED�. 0.022Ac. 91 mY
SIGNED ON
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Comments/Notes:
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LEGEND "o�:
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w� H.�aoa:o�allons.c,
Maintenance Easement Agreement
PIPELINE EASEMENT
THIS AGREEMENT made the_day of , 2021.
BETWEEN:
EPCOR NATURAL GAS LIMITED PARTNERSHIP
("EPCOR")
-and-
THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE (the "Owner")
WHEREAS:
A. The Owner is the registered owner of an estate in fee simple, subject to such
encumbrances, liens and interests as are at the date hereof set forth in the parcel register,
in the lands situated in the Province of Ontario and legally described as:
PIN 33312-0048
PT LT 1 PL 61 (SUBDIVISION OF LT 6 W/S QUEEN ST); PT LT 2 PL 61 (SUBDIVISION OF LT 6
W/S QUEEN ST)PT 1 &3, 3R7582 S/T R311084; KINCARDINE
B. The Owner has agreed to grant to EPCOR a right-of-way and easement across all or a
po�tion of the Lands (as defined below) in accordance with the terms and conditions
contained in this Agreement.
IN CONSIDERATION OF the mutual covenants and agreements set forth herein and for other
good and valuable consideration, the receipt and sufficiency of which is acknowledged by each
of the parties, and in consideration of the payment of the Fee (as defined below) by EPCOR to
the Owner, EPCOR and the Owner agree as foUows:
1. GRANT
1.1 The Owner hereby grants, conveys and transfers unto EPCOR a non-exclusive
right, license, liberty, privilege and easement for a term of 21 years' less a day on,
over, across, along, in, under and through that portion of the Lands (as defined
below) outlined in red and/or shown as cross-hatched on the attached Schedule
"A" and described as follows those parts of:
PIN 33312-0048
PT LT 1 PL 61 (SUBDIVISION OF LT 6 W/S GIUEEN ST); PT LT 2 PL 61 (SUBDIVISION
OF LT 6 W/S QUEEN ST) PT 1 &3, 3R7582 S/T R311084; KINCARDINE;
being parts • on Reference Plan •](the"Lands").
to lay down, construct, operate, maintain, inspect, patrol (including aerial patrol),
alter, relocate, remove, replace, reconstruct and repair a line of pipe together with
all facilities or works of EPCOR useful in connection with or incidental to its
undertaking, including, but without limiting the generality of the foregoing, all such
pipes, drips, valves, fittings, connections, meters, cathodic protection equipment
and other equipment and appurtenances, whether or not similar to the foregoing,
-2 -
as may be useful or convenient in connection therewith or incidental thereto for the
carriage, transmission, conveyance, transportation and handling of oil, natural and
artificial gas and other gaseous or liquid hydrocarbons and any product or by-
product thereof (such line of pipe together with such related facilities or works
being referred to collectively as the "Pipeline"). Notwithstanding anything else
herein, the Owner shall not grant any of the foregoing rights to any other person
without the prior written consent of EPCOR which shall not be unreasonably
withheld.
2. FEE
2.1 Upon the execution of this Agreement by EPCOR and the Owner, EPCOR shall
pay to the Owner the sum of One Dollar ($1.00) exclusive of Harmonized Sales
Tax(the"Fee"), the receipt of which is acknowledged by the Owner. The payment
of the Fee by EPCOR is the sole consideration and inducement for the execution
by the Owner of this Agreement and is the total compensation payable by EPCOR
to the Owner for the right to use the Lands as stated in this Agreement.
3. RIGHT OF ACCESS
3.1 EPCOR shall have the right at any time and from time to time to do whatever may
be required for the enjoyment of the rights granted under this Agreement, including
the removal of any boulder or rock or the trimming and removal of all trees, shrubs
and other vegetation on, over, across, along, in, under and through the Lands.
3.2 Upon execution of this Agreement by EPCOR and the Owner, EPCOR may
ingress and egress at any and all times on, over, along, across, along, in, under
and through the Lands with its servants, agents, employees, contractors and
subcontractors (collectively, the "Authorized Representatives"), on foot and/or
with vehicles, supplies, machinery and equipment, for all purposes useful or
convenient in connection with or incidental to the exercise and enjoyment of the
rights granted pursuant to this Agreement.
3.3 EPCOR and its Authorized Representatives shall have the right of ingress and
egress from the Lands at any and all times on, over across, along, in, under and
through the Lands for the purposes of exercising the rights granted under this
Agreement. This right of access shall be used only in cases of necessity or
emergency, as determined by EPCOR in EPCOR's sole and absolute discretion.
EPCOR shall pay reasonable compensation to the Owner of the Lands for any
damage caused by EPCOR and its Authorized Representatives in the exercise of
the right of access as granted to EPCOR under this Clause 3.3.
3.4 The rights, licenses, liberties, privileges and easements speci�ically described in
Clauses 1 and 3 are being refe�red to cotlectively as the "Easement Rights".
4. PIPELINE
4.1 Notwithstanding any rule of law or equity to the contrary, the Pipeline shall at all
times remain a chattel and the personal property of EPCOR or its assigns and shall
not become part of the Lands, notwithstanding that it may be annexed or affixed
to the Lands or abandoned by EPCOR.
-3 -
4.2 EPCOR shall install, construct, operate and maintain the Pipeline in a responsible
manner so as to minimize damage to the Lands and shall, where practicable, after
any such work restore the Lands to substantially its original level and condition,
save and except for any soil rise above grade to allow for soil settlement (the
"Restoration Work"). EPCOR shall not be responsible for any damages caused
by subsidence after levelling is completed, provided the subsidence does not occur
as a result of negligence on the part of EPCOR. Notwithstanding the foregoing, or
Clause 7.1, EPCOR shall only be obligated to compensate the Owner for damage
to buildings or improvements that may be placed within the Lands,and arising from
the exercise by EPCOR of its rights under this Agreement, if EPCOR has given its
prior written consent pursuant to Clause 5.2 to the placement of such buildings or
improvements within the Lands.
4.3 If EPCOR has not commenced the Restoration Work within a period of ninety(90)
days following completion of the Pipeline,the Owner may after thirty(30)days prior
written notice, complete the Restoration Work, in accordance with all applicable
requirements including TSSA requirements and if such requirements must be
completed by a natural gas utility the Owner shall not complete any portion of the
Restoration Work governed by those requirements, provided there is no
interference with the Easement Rights. EPCOR shall pay to the Owner within
fifteen (15) business days following demand, all reasonable amounts paid by the
Owner in respect of such Restoration Work.
4.4 EPCOR shall have the right to temporarily fence and use such portions of the
Lands as may in its opinion be required. If at any time EPCOR shall require
temporary fencing for maintenance or operational reasons, such fencing shall be
temporary and EPCOR shall obtain the prior written consent of the Owner, acting
reasonably, as to the type, term and location of any fencing and shall locate such
temporary fencing insofar as may be practicable so to do, in such a fashion as to
provide a minimum of inconvenience to the Owner. EPCOR shall furnish to the
Owner a plan of the intended location. EPCOR shall within a period of thirty (30)
days following completion of the Pipeline, compensate the Owner for any
inconvenience caused to the Owner and for all damage occurring as a result of
fencing any such portion of the Lands.
4.5 EPCOR may at any time for whatsoever reason or cause abandon the Pipeline in
accordance with the then-applicable legislation, regulations and governmental
directions. In the event of the abandonment of the Pipeline, EPCOR may, at its
option, either leave the Pipeline in place or remove it provided this option remains
in accordance with the then-applicable legislation. If EPCOR leaves the Pipeline
in place EPCOR shall complete decommissioning procedures and comply with all
applicable legislation. In the event of removal, EPCOR shall conserve, reclaim
and remediate the portion of the Lands affected by the exercise of the rights herein
granted, insofar as it is practicable to do so and in accordance with the then-
applicable legislation, regulations and govemmental directions. In the event of
removal or decommissioning, as the case may be, and subject to the then-
applicable legislation, EPCOR agrees to discharge this Agreement and the
Easement Rights in the appropriate Land Registry Office within 180 days from the
effective date of the removal of the Pipeline or the completion of the
decommissioning of the Pipeline.
-4-
5. OWNER'S USE OF LANDS
5.1 The Owner shall not use the Lands in any manner which may conflict with the
rights of EPCOR as granted to EPCOR pursuant to this Agreement.
5.2 The Owner shall not, without the prior written consent of EPCOR which consent
shall not be unreasonably withheld, stockpile, excavate, drill, install, erect,
construct or place above, through, on or under the Lands any pavement, building,
fence, pit, well, pipe, foundation, sidewalk, or other structure or improvement, or
do or permit to be done any mining, quarrying, land levelling or other work or
activity of any like or similar nature on, in or under the Lands. The Owner shall not
permit any of these activities to occur by others.
5.3 The Owner shall not alter the surface grade level of the Lands in any manner which
would affect the rights granted to EPCOR pursuant to this Agreement.
5.4 The Owner shall not plant any trees within the Lands. Existing trees on the Lands
shall not be removed without the prior written consent of the Owner.
5.5 The Owner shall not store or otherwise place toxic, hazardous, dangerous,
flammable, potentially explosive, noxious or waste substances or contaminants
(the "Hazardous Materials") within the Lands, nor shall the Owner permit the
storage or placement by a third party of such substances within the Lands.
5.6 The Owner shall be responsible for the maintenance of the Lands, including but
not limited to such items as grass cutting and clean-up, replacement and repair of
the Lands in such a manner that it shall be suitable at all times for EPCOR's use
as permitted by this Agreement. The Owner shall undertake any maintenance
directed by EPCOR to maintain the said Lands within sixty (60) days of receiving
written notification.
5.7 Subject to the foregoing and to the provisions of applicable legislation, regulations
and governmental directions, and provided that there is no interference with the
Easement Rights, the Owner shall have the right to use and enjoy the Lands. In
addition, EPCOR hereby grants permission to the Owner to cross the buried
Pipeline with ordinary farming vehicles as necessary in connection with ordinary
cultivation, as such vehicles are defined by EPCOR from time to time and
communicated in writing to the Owner at the address set out in Clause 9.
6. ENVIRONMENTA�OBLIGATIONS
6.1 EPCOR and the Owner shall comply with all applicable legislation, regulations and
governmental direction dealing with environmental issues, including the
Hazardous Materials (the "Environmental Laws"), related to the Lands.
6.2 The Owner represents and warrants that the Lands have not been used for the
storage of the Hazardous Materials. If EPCOR encounters any Hazardous
Materials in undertaking any work within the Lands, it shall give notice to the
Owner. At the expense of the Owner, EPCOR(or, at EPCOR's option,the Owner)
shall effect the removal of such Hazardous Materials in accordance with the
Environmental Laws.
-5 -
6.3 The responsibility of EPCOR and the Owner with respect to environmental
obligations, as required by this Agreement, shall continue to be enforceable during
and after the termination of this Agreement.
7. INDEMNITY AND COMPENSATION
7.1 EPCOR acknowledges and agrees that, in exercising any of its rights under this
Easement Agreement, it shall do so at its own risk and expense. Unless the loss
or damage is directly attributable to the gross negligence or willful misconduct of
the Owner, its elected officials, officers, employees and agents and those persons
for whom the Owner is responsible in law, EPCOR shall not have a claim against
the Owner for any loss or damage by whomsoever caused to EPCOR's property.
Except for the gross negligence or willful misconduct of the Owner, its employees,
agents, contractors, subcontractors and those persons for whom the Owner is
responsible in law, EPCOR shall:
(a) be liable to the Owner for; and
(b) indemnify and save harmless the Owner, its employees, agents,
contractors, subcontractors and those persons for whom the Owner is
responsible in law from and against
any and all claims, suits, actions, demands, expenses, damages and costs which
may be brought or made against the Owner or which the Owner may pay or incur
by reason of any breach,violation or non-performance by EPCOR of any covenant,
term or provision of this Agreement or by reason of the gross negligence or willful
misconduct of EPCOR, its agents, employees, contractors, subcontractors and
those persons for whom EPCOR is responsible in law, in the exercise of the rights
as granted to EPCOR under this Agreement. This indemnity shall be in addition to
and not in lieu of any insurance to be provided by EPCOR in accordance with this
Easement Agreement and shall survive this Easement Agreement.
8. QUIET ENJOYMENT
8.1 EPCOR by performing and observing the terms and conditions of this Agreement
shall and may peaceably hold and enjoy all the rights granted under this
Agreement,without hindrance, molestation or interruption on the pa�t of the Owner
or any person claiming by, through, under, from or in trust for, the Owner.
9. ADDRESS FOR CONSENT OR NOTICE
9.1 Any written consent required to be obtained from, and any notices to be given to,
EPCOR or the Owner, as the case may be, pursuant to this Agreement shall be in
writing and obtained or effected by delivering the request or notice to EPCOR or
the Owner in person or by email, registered mail, postage prepaid, addressed as
follows:
-6 -
To EPCOR:
EPCOR Natural Gas Limited Partnership
Attention: General Manager
39 Beech Street East
Alymer ON N5H 3J6
Email:
To the Owner:
The Corporation of the Municipality of Kincardine
1475 Concession 5
Kincardine, ON
N2Z 2X6
Attention: Clerk
Email: 'LawrieCa�kincardine.ca
A notice will be effective on: (i) the other party's receipt of it; or (ii) if sent by
registered mail, on the earlier of the other party's receipt of it and the seventh day
after mailing it.
10. DISPUTE RESOLUTION
10.1 In the event of a determination by either party in regard to a matter in dispute
between EPCOR and the Owner as to the interpretation or effect of any of the
terms or conditions of this Agreement, and where notice of such determination has
been delivered to EPCOR or the Owner, as the case may be, the determination
shall be conclusively deemed to have been accepted by the parties, unless,within
ten (10) days of the receipt of notice of the determination the party receiving the
notice gives written notice to the other party (the "Arbitration Notice°) of their
desire to have the matter in dispute resolved by arbitration.
10.2 Within seven (7)days of receipt of the Arbitration Notice,the parties shall mutually
appoint an arbitrator (the "Arbitrator"). In the event that the parties shall fail to
agree on the appointment of the Arbitrator,then either party may, on written notice
to the other, apply to the Ontario Superior Court of Justice for the appointment of
the Arbitrator, pursuant to the Arbitration Act, 1991, S.O. 1991, c. 17, as amended
(the"Arbitration Act").
10.3 The seat of arbitration shall be Kincardine, Ontario.
10.4 The Arbitrator shall be directed to make its determination on the basis of a
presumption that this Agreement does not require amendments. Any
dete�rnination of the Arbitrator shall include a determination as to payment of the
costs of the arbitration. The determination of the Arbitrator shall be final and
binding on the parties and there shall be no right to appeal of such decision to the
courts.
- 7 -
10.5 Except as modified by this Agreement, the provisions of the Arbitration Act and its
regulations or any successive legislation shall apply.
11. GENERAL
11.1 Entire Agreement
There are no conditions, either subsequent or precedent, except as stated in this
Agreement and in the letter of understanding between the Parties dated November
5, 2020(the"LOU"). This Agreement and the LOU represent the entire agreement
between EPCOR and the Owner and no representations or warranties have been
made by EPCOR, except as stated in this Agreement and the LOU.
11.2 Governing Law
This Agreement shall be governed by and construed in accordance with the laws
in force in the Province of Ontario and the laws of Canada applicable therein.
11.3 Easement in Gross
The rights granted under this Agreement, including the Easement Rights, are
declared to be an easement in gross.
11.4 Further Assurances
The parties hereto will execute such further assurances of the Lands and the rights
granted under this Agreement as may be required.
11.5 Assignment
EPCOR shall, without the consent of the Owner, but upon seven (7) days prior
written notice, have the right to assign, in whole or in part, to any person,
partnership, trust, government, agency or corporation, the rights granted,
transferred and conveyed under this Agreement, including the Easement Rights,
provided that the assignee shall execute and deliver an assignment agreement in
a form to be provided by EPCOR, whereby the assignee agrees to assume and be
bound by the terms and conditions of this Agreement. Such notice shall include
the notice particulars as required by Clause 9.1.
11.6 EPCOR's use of Lands
EPCOR shall, without the consent of the Owner, have the right to grant the right to
use the Lands, in whole or in part, in accordance with the terms and conditions
contained in this Agreement to any person, pa�tnership,trust, government, agency
or corporation.
11.7 Enurement
This Agreement, including all covenants contained herein and all rights granted
hereunder, is and shall be of the same force and effect for all intents and purposes
as a covenant running with the Lands and shall extend to, be binding upon and
-8-
enure for the benefit of the heirs, executors,administrators, successors-in-title and
assigns of the parties respectively.
11.8 Severability
If any term or condition of this Agreement is invalid or unenforceable under any
applicable statute or is declared invalid or unenforceable by a court of competent
ju�isdiction, then such term or condition shall be deemed to be severed from this
Agreement, provided however, that the remainder of this Agreement shall not be
affected, shall continue in full force and effect and each remaining term and
condition shall be valid and be enforced to the fullest extent permitted by law.
11.9 Additional Taxes
EPCOR agrees that no taxes, rates, assessments, charges, levies or impositions
of any kind or nature of any governmental authority. Including without limitation
property taxes on the pipeline, shall be payable by or placed upon the Owner in
relation to any use of the Lands by EPCOR pursuant to this Agreement, and if any
such taxes, rates, assessments, charges, levies or impositions shall be levied,
imposed, or placed, EPCOR shall make payment thereof. All taxes or
assessments in the nature of sales taxes, good and services taxes or value added
taxes which may be charged, levied or assessed as a result of this Agreement,
whether or not such taxes are charged, levied or assessed as against the Owner,
shall be the responsibility of EPCOR, and EPCOR shall on written demand by the
Owner, pay to the Owner any and all such taxes.
11.10 Outstanding Charges, Taxes, Liens, etc.
Notwithstanding any other provision in this Agreement, if EPCOR determines that:
(a) there are outstanding charges, taxes, builders' liens, writs of execution,
judgments or other encumbrances which are registered against the Lands;
or
(b) there are any overdue amounts outstanding under any agreement for sale,
mortgage or other financial encumbrance that is registered against the
Lands;
EPCOR may, but is not obligated to, pay all or a portion of the compensation or
other amounts payable under this Agreement to the holder of such charge, lien,
writ of execution, judgment, mortgage or other financial encumbrance, or to such
vendor or mortgagee to satisfy and discharge such encumbrance or to obtain a
postponement from the encumbrance holder. The payment of any amount to such
third party shall be deemed to be payment of such amount to the Owner. For
greater certainty, EPCOR shall not be required to obtain the Owner's consent prior
to making such payment. EPCOR shall provide to the Owner written confirmation
of any such payments within thirty (30) days of making such payments.
-9 -
11.11 Sole Remedy
It is understood and agreed that notwithstanding any other provision in this
Agreement and notwithstanding any rights that any person having an interest may
have in law or in equity, should EPCOR fail to pay any payments payable
hereunder, the sole remedy of any such person having an interest shall be to
recover from EPCOR such amount and any interest payable thereon, and in no
event shall such person having an interest for whatever reason, interfere with,
hinder, molest or interrupt EPCOR in its enjoyment of any of the rights granted,
transferred and conveyed under this Agreement, including the Easement Rights.
11.12 Personallnformation
The Owner consents to the collection and use of its personal information within
this Agreement. EPCOR collects this type of personal information for the purposes
of general land rights acquisition and regulatory disclosure. The Owner consents
to the collection, use and disclosure of its personal information for these legitimate
business purposes in relation to land matters of EPCOR. The Owner is a municipal
corporation incorporated pursuant to the Municipal Act, 2001, S.O. 2001, c. 25, as
amended and is subject to the Municipal Freedom of Information and Protecfion
of Privacy Act, R.S.O. 1990, c. M.56, as amended ("MIFFPA"). EPCOR agrees
that MIFFPA applies to all information or records within EPCOR's custody or
control that are collected or created specifically for the purposes of this Agreement.
11.13 Survival of Obligations
Any term or provision in this Agreement, which, in order to be given its fullest
intended effect, must extend past the expiration or termination of this Agreement
will survive the expiration or termination of this Agreement, including Articles 6, 7
and 10.
11.14 Insurance
Throughout the term of this Agreement, the Owner shall maintain in full force and
effect insurance coverage to the levels of a reasonable owner.
Throughout the term of this Agreement, EPCOR will maintain in full force and effect
the following insurance:
(a) Commercial General Liability insurance in an amount of not less than
$10,000,000.00 per occurrence for bodily injury including death and/or
property damage, which will include the following extensions: contractual
liability, non-owned automobile, products and completed operations,
broad form property damage, sudden and accidental pollution liability,
cross liability and/or severability of interest, contingent employer's liability,
and where applicable no exclusion for excavation, collapse, shoring and
underpinning; and
(b) Commercial Automobile Liability insurance covering all owned, leased or
hired licensed motor vehicles used in connection with the Lands with a
- 10 -
combined limit of not less than $10,000,000.00 per occurrence for bodily
injury including death and/or property damage.
(c) An environmental impairment liability policy with a limit of ten million dollars
($10,000,000) per occurrence to include the following:
(i) physical damage to p�operty including loss of use and the prevention,
control and clean-up of land, the atmosphere or any watercourse or body
of water;
(ii) gradual or sudden and accidental pollution for events such as fire,
explosion or a sudden spill, as well as seepage over time; and
(iii) first and third-party clean-up expenses, bodily injury and property
damage arising from a pollution event.
All insurance policies required to be held by EPCOR under this Agreement:
(a) must provide the Owner with 30 days written notice of cancellation;
(b) where applicable, must be primary and not contributory with, or in excess
of, any other insurance carried by the Owner;
(c) may use primary and/or umbrella liability insurance to achieve required
limits; and
(d) EPCOR will be responsible for payment of all premiums and deductible
amounts relating to the insurance policies required to be held by EPCOR
under this Agreement.
11.15 Costs of Registration
Any costs related to the registration of document with the appropriate land registry
office shall be the sole responsibility of EPCOR.
11.16 Minor Changes for Reference Plan
The parties agree that the Agreement may be executed without completion of the
Reference Plan in Section 1.1 hereof. Upon completion of the Reference Plan, the
parties agree that this Agreement may be modified to include insertion of the
Reference Plan.
11.17 In this Agreement:
11.17.1 the word "shall" is to be read and interpreted as mandatory;
11.17.2 the word "may" is to be read and interpreted as permissive; and
11.17.3 the word "Owner" shall be read and interpreted as meaning an
individual, a partnership, a corporation, a trust, an unincorporated
organization, a government, or any department or agency thereof, and
- 11 -
the heirs, executors, administrators or other legal representatives of
any individual.
11.18 Counterparts
This Agreement may be executed in any number of counterparts and all of which
taken together will constitute one and the same instrument. All parties agree that
this Agreement may be transmitted by telecopier or electronic transmission via
email and that the reproduction of signatures by way of telecopier or electronic
transmission via email were executed originals will be treated as though such
reproduction were executed originals and each party undertakes to provide the
other with a copy of this Agreement bearing original signatures within a reasonable
time after written request therefore.
IN WITNESS WHEREOF EP�OR AND THE OWNER HAVE EXECUTED THIS AGREEMENT
ON THE ��DAY OF -1 `�'�'� , 2021.
EPCOR: EPCOR NATURAL GAS LIMITED
PARTNERSHIP, by its general partner
EPCOR ONTARIO UTILITIES INC.
,i
� '�� � � �
Per: ��' �—�,�-�:-� c/
Name: MA�I.t� �---��.�t-���•,���-� i
Position:/'�,r.,cryt.�4L ✓�^�F"��''`i�, b���r�-
!'„�-5 c��-��
I have authority to bind the Corporation
OWNER: THE CORPORATION OF THE
MUNICIPALITY OF KINCARDINE
�
Per:
Gerry Glov r, Ma or
r: �
Sharon Chambers, CAO
We have authority to bind the Corporation.
SCHEDULE "A"
LANDS
PT LT 1 PL 61 (SUBDIVISION OF LT 6 W/S QUEEN ST); PT LT 2 PL 61 (SUBDIVISION
OF LT 6 W/S QUEEN ST) PT 1 & 3, 3R7582 S/T R311084; KINCARDINE being PIN
33312-0048 (LT)
EPCOR UTILITIES N
PRELIMINARY PROPERTY SKEfCH
EPC.�-R SOUTH BRUCE NASCHEDULE AIPELINE PROJECT W E
PIN 33312-0048
PT LT t PL 61(SUBDNISION OF LT 6 W/S�UEEN S��,PT LT 2 S
PL61(SUBDNISION OF LT6 WfS QUEEN ST)PT'I&3,
SURFACELANDAGENT OWNER(S) AREA�S)
PROPERTY AREA� O.MO Ae 76r m2
n2cowvo�.rwaocn<wnxorwnocwr+e�nowc qpEqREOUIkED�. 0.008Ac.2Zm2
SIGNED ON
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Comments/Notes:
0 45 90 180 R
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0 12.5 25 50 m
LEGEND NO�`
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Maintenance Easement Agreement
PIPELINE EASEMENT
THIS AGREEMENT made the_day of , 2021.
BETWEEN:
EPCOR NATURAL GAS LIMITED PARTNERSHIP
("EPCOR")
- and -
THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE (the"Owner")
WHEREAS:
A. The Owner is the registered owner of an estate in fee simple, subject to such
encumbrances, liens and interests as are at the date hereof set forth in the parcel register,
in the lands situated in the Province of Ontario and legally described as:
PIN 33312-0056
PT LT 8 W/S QUEEN ST PL KINCARDINE AS IN R112100; KINCARDINE
B. The Owner has agreed to grant to EPCOR a right-of-way and easement across all or a
portion of the Lands (as defined below) in accordance with the terms and conditions
contained in this Agreement.
IN CONSIDERATION OF the mutual covenants and agreements set forth herein and for other
good and valuable consideration, the receipt and sufficiency of which is acknowledged by each
of the parties, and in consideration of the payment of the Fee (as defined below) by EPCOR to
the Owner, EPCOR and the Owner agree as follows:
1. GRANT
1.1 The Owner hereby grants, conveys and transfers unto EPCOR a non-exclusive
right, license, liberty, privilege and easement for a term of 21 years' less a day on,
over, across, along, in, under and through that portion of the Lands (as defined
below) outlined in red andlor shown as cross-hatched on the attached Schedule
"A" and described as follows those parts of:
PIN 33312-0056
PT LT 8 W/S QUEEN ST PL KINCARDINE AS IN R112100; KINCARDINE;
being parts • on Reference Plan •](the"Lands").
to lay down, construct, operate, maintain, inspect, patrol (including aerial patrol),
alter, relocate, remove, replace, reconstruct and repair a line of pipe together with
all facilities or works of EPCOR useful in connection with or incidental to its
undertaking, including, but without limiting the generality of the foregoing, all such
pipes, drips, valves, fittings, connections, meters, cathodic protection equipment
and other equipment and appurtenances, whether or not similar to the foregoing,
as may be useful or convenient in connection therewith or incidental thereto for the
-2 -
carriage,transmission, conveyance,transportation and handling of oil, natural and
artificial gas and other gaseous or liquid hydrocarbons and any product or by-
product thereof (such line of pipe together with such related facilities or works
being referred to collectively as the "Pipeline"). Notwithstanding anything else
herein, the Owner shall not grant any of the foregoing rights to any other person
without the prior written consent of EPCOR which shall not be unreasonably
withheld.
2. FEE
2.1 Upon the execution of this Agreement by EPCOR and the Owner, EPCOR shall
pay to the Owner the sum of One Dollar ($1.00) exclusive of Harmonized Sales
Tax(the"Fee"), the receipt of which is acknowledged by the Owner. The payment
of the Fee by EPCOR is the sole consideration and inducement for the execution
by the Owner of this Agreement and is the total compensation payable by EPCOR
to the Owner for the right to use the Lands as stated in this Agreement.
3. RIGHT OF ACCESS
3.1 EPCOR shall have the right at any time and from time to time to do whatever may
be required for the enjoyment of the rights granted under this Agreement, including
the removal of any boulder or rock or the trimming and removal of all trees, shrubs
and other vegetation on, over, across, along, in, under and through the Lands.
3.2 Upon execution of this Agreement by EPCOR and the Owner, EPCOR may
ingress and egress at any and all times on, over, along, across, along, in, under
and through the Lands with its servants, agents, employees, contractors and
subcontractors (collectively, the °Authorized Representatives"), on foot and/or
with vehicles, supplies, machinery and equipment, for all purposes useful or
convenient in connection with or incidental to the exercise and enjoyment of the
rights granted pursuant to this Agreement.
3.3 EPCOR and its Authorized Representatives shall have the right of ingress and
egress from the Lands at any and all times on, over across, along, in, under and
through the Lands for the purposes of exercising the rights granted under this
Agreement. This right of access shall be used only in cases of necessity or
emergency, as determined by EPCOR in EPCOR's sole and absolute discretion.
EPCOR shall pay reasonable compensation to the Owner of the Lands for any
damage caused by EPCOR and its Authorized Representatives in the exercise of
the right of access as granted to EPCOR under this Clause 3.3.
3.4 The rights, licenses, liberties, privileges and easements specifically described in
Clauses 1 and 3 are being referred to collectively as the "Easement Rights".
4. PIPELINE
4.1 Notwithstanding any rule of law or equity to the contrary, the Pipeline shall at all
times remain a chattel and the personal property of EPCOR or its assigns and shall
not become part of the Lands, notwithstanding that it may be annexed or affixed
to the Lands or abandoned by EPCOR.
1
-3 -
4.2 EPCOR shall install, construct, operate and maintain the Pipeline in a responsible
manner so as to minimize damage to the Lands and shall, where practicable, after
any such work restore the Lands to substantially its original level and condition,
save and except for any soil rise above grade to allow for soil settlement (the
"Restoration Work"). EPCOR shall not be responsible for any damages caused
by subsidence after levelling is completed, provided the subsidence does not occur
as a result of negligence on the part of EPCOR. Notwithstanding the foregoing, or
Clause 7.1, EPCOR shall only be obligated to compensate the Owner for damage
to buildings or improvements that may be placed within the Lands,and arising from
the exercise by EPCOR of its rights under this Agreement, if EPCOR has given its
prior written consent pursuant to Clause 5.2 to the placement of such buildings or
improvements within the Lands.
4.3 If EPCOR has not commenced the Restoration Work within a period of ninety(90)
days following completion of the Pipeline,the Owner may after thirty(30)days prior
written notice, complete the Restoration Work, in accordance with all applicable
requirements including TSSA requirements and if such requirements must be
completed by a natural gas utiliry the Owner shall not complete any portion of the
Restoration Work governed by those requirements, provided there is no
interference with the Easement Rights. EPCOR shall pay to the Owner within
fifteen (15) business days following demand, all reasonable amounts paid by the
�wner in respect of such Restoration Work.
4.4 EPCOR shall have the right to temporarily fence and use such portions of the
Lands as may in its opinion be required. If at any time EPCOR shall require
temporary fencing for maintenance or operational reasons, such fencing shall be
temporary and EPCOR shall obtain the prior written consent of the Owner, acting
reasonably, as to the type, term and location of any fencing and shall locate such
temporary fencing insofar as may be practicable so to do, in such a fashion as to
provide a minimum of inconvenience to the Owner. EPCOR shall furnish to the
Owner a plan of the intended location. EPCOR shall within a period of thirty (30)
days following completion of the Pipeline, compensate the Owner for any
inconvenience caused to the Owner and for all damage occurring as a result of
fencing any such portion of the Lands.
4.5 EPCOR may at any time for whatsoever reason or cause abandon the Pipeline in
accordance with the then-applicable legislation, regulations and governmental
directions. In the event of the abandonment of the Pipeline, EPCOR may, at its
option, either leave the Pipeline in place or remove it provided this option remains
in accordance with the then-applicable legislation. If EPCOR leaves the Pipeline
in place EPCOR shall complete decommissioning procedures and comply with all
applicable legislation. In the event of removal, EPCOR shall conserve, reclaim
and remediate the portion of the Lands affected by the exercise of the rights herein
granted, insofar as it is practicable to do so and in accordance with the then-
applicable legislation, regulations and govemmental directions. In the event of
removal or decommissioning, as the case may be, and subject to the then-
applicable legislation, EPCOR agrees to discharge this Agreement and the
Easement Rights in the appropriate Land Registry Office within 180 days from the
effective date of the removal of the Pipeline or the completion of the
decommissioning of the Pipeline.
I ,
-4-
5. OWNER'S USE OF LANDS
5.1 The Owner shall not use the Lands in any manner which may conflict with the
rights of EPCOR as granted to EPCOR pursuant to this Agreement.
5.2 The Owner shall not, without the prior written consent of EPCOR which consent
shall not be unreasonably withheld, stockpile, excavate, drill, install, erect,
construct or place above, through, on or under the Lands any pavement, building,
fence, pit, well, pipe, foundation, sidewalk, or other structure or improvement, or
do or permit to be done any mining, quarrying, land levelling or other work or
activity of any like or similar nature on, in or unde�the Lands. The Owner shall not
permit any of these activities to occur by others.
5.3 The Owner shall not alter the surface grade level of the Lands in any manner which
would affect the rights granted to EPCOR pursuant to this Agreement.
5.4 The Owner shall not plant any trees within the Lands. Existing trees on the Lands
shall not be removed without the prior written consent of the Owner.
5.5 The Owner shall not store or otherwise place toxic, hazardous, dangerous,
flammable, potentially explosive, noxious or waste substances or contaminants
(the "Hazardous Materials") within the Lands, nor shall the Owner permit the
storage or placement by a third party of such substances within the Lands.
5.6 The Owner shall be responsible for the maintenance of the Lands, including but
not limited to such items as grass cutting and clean-up, replacement and repair of
the Lands in such a manner that it shall be suitable at all times for EPCOR's use
as permitted by this Agreement. The Owner shall undertake any maintenance
directed by EPCOR to maintain the said Lands within sixty (60) days of receiving
written notification.
5.7 Subject to the foregoing and to the provisions of applicable legislation, regulations
and governmental directions, and provided that there is no interference with the
Easement Rights, the Owner shall have the right to use and enjoy the Lands. In
addition, EPCOR hereby grants perrnission to the Owner to cross the buried
Pipeline with ordinary farming vehicles as necessary in connection with ordinary
cultivation, as such vehicles are defined by EPCOR from time to time and
communicated in writing to the Owner at the address set out in Clause 9.
6. ENVIRONMENTAL OBLIGATIONS
6.1 EPCOR and the Owner shall comply with all applicable legislation, regulations and
governmental direction dealing with environmental issues, including the
Hazardous Materials (the "Environmental Laws"), related to the Lands.
6.2 The Owner represents and warrants that the Lands have not been used for the
storage of the Hazardous Materials. If EPCOR encounters any Hazardous
Materials in undertaking any work within the Lands, it shall give notice to the
Owner. At the expense of the Owner, EPCOR (or, at EPCOR's option, the Owner)
shall effect the removal of such Hazardous Materials in accordance with the
1
-5-
Environmental Laws.
6.3 The responsibility of EPCOR and the Owner with respect to environmental
obligations, as required by this Agreement, shall continue to be enforceable during
and after the termination of this Agreement.
7. INDEMNITY AND COMPENSATION
7.1 EPCOR acknowledges and agrees that, in exercising any of its rights under this
Easement Agreement, it shall do so at its own risk and expense. Unless the loss
or damage is directly attributable to the gross negligence or willful misconduct of
the Owner, its elected officials, officers, employees and agents and those persons
for whom the Owner is responsible in law, EPCOR shall not have a claim against
the Owner for any loss or damage by whomsoever caused to EPCOR's property.
Except for the gross negligence or willful misconduct of the Owner, its employees,
agents, contractors, subcontractors and those persons for whom the Owner is
responsible in law, EPCOR shall:
(a) be liable to the Owner for; and
(b) indemnify and save harmless the Owner, its employees, agents,
contractors, subcontractors and those persons for whom the Owner is
responsible in law from and against
any and all claims, suits, actions, demands, expenses, damages and costs which
may be brought or made against the Owner or which the Owner may pay or incur
by reason of any breach, violation or non-performance by EPCOR of any covenant,
term or provision of this Agreement or by reason of the gross negligence or willful
misconduct of EPCOR, its agents, employees, contractors, subcontractors and
those persons for whom EPCOR is responsible in law, in the exercise of the rights
as granted to EPCOR under this Agreement. This indemnity shall be in addition to
and not in lieu of any insurance to be provided by EPCOR in accordance with this
Easement Agreement and shall survive this Easement Agreement.
8. QUIET ENJOYMENT
8.1 EPCOR by performing and observing the terms and conditions of this Agreement
shall and may peaceably hold and enjoy all the rights granted under this
Agreement,without hindrance, molestation or interruption on the part of the Owner
or any person claiming by, through, under, from or in trust for, the Owner.
9. ADDRESS FOR CONSENT OR NOTICE
9.1 Any written consent required to be obtained from, and any notices to be given to,
EPCOR or the Owner, as the case may be, pursuant to this Agreement shall be in
writing and obtained or effected by delivering the request or notice to EPCOR or
the Owner in person or by email, registered mail, postage prepaid, addressed as
follows:
► ,
-6 -
To EPCOR:
EPCOR Natural Gas Limited Partnership
Attention: General Manager
39 Beech Street East
Alymer ON N5H 3J6
Email:
To the Owner:
The Corporation of the Municipaliry of Kincardine
1475 Concession 5
Kincardine, ON
N2Z 2X6
Attention: Clerk
Email: Ilawrie(a�kincardine.ca
A notice will be effective on: (i) the other party's receipt of it; or (ii) if sent by
registered mail, on the earlier of the other party's receipt of it and the seventh day
after mailing it.
10. DISPUTE RESOLUTION
10.1 In the event of a determination by either party in regard to a matter in dispute
between EPCOR and the Owner as to the interpretation or effecf of any of the
terms or conditions of this Agreement, and where notice of such determination has
been delivered to EPCOR or the Owner, as the case may be, the determination
shall be conclusively deemed to have been accepted by the parties, unless,within
ten (10) days of the receipt of notice of the determination the party receiving the
notice gives written notice to the other party (the "Arbitration Notice") of their
desire to have the matter in dispute resolved by arbitration.
10.2 Within seven(7)days of receipt of the Arbitration Notice, the parties shall mutually
appoint an arbitrator (the "Arbitrator"). In the event that the parties shall fail to
agree on the appointment of the Arbitrator,then either party may, on written notice
to the other, apply to the Ontario Superior Court of Justice for the appointment of
the Arbitrator, pursuant to the Arbitration Act, 1991, S.O. 1991, c. 17, as amended
(the "Arbitration Act").
10.3 The seat of arbitration shall be Kincardine, Ontario.
10.4 The Arbitrator shall be directed to make its determination on the basis of a
presumption that this Agreement does not require amendments. Any
determination of the Arbitrator shall include a determination as to payment of the
costs of the arbitration. The determination of the Arbitrator shall be final and
binding on the parties and there shall be no right to appeal of such decision to the
courts.
-7 -
10.5 Except as modified by this Agreement, the provisions of the Arbitration Act and its
regulations or any successive legislation shall apply.
11. GENERAL
11.1 Entire Agreement
There are no conditions, either subsequent or precedent, except as stated in this
Agreement and in the letter of understanding between the Parties dated November
5, 2020(the"LOU"). This Agreement and the LOU represent the entire agreement
between EPCOR and the Owner and no representations or warranties have been
made by EPCOR, except as stated in this Agreement and the LOU.
11.2 Governing Law
This Agreement shall be governed by and construed in accordance with the laws
in force in the Province of Ontario and the laws of Canada applicable therein.
11.3 Easement in Gross
The rights granted under this Agreement, including the Easement Rights, are
declared to be an easement in gross.
11.4 Further Assurances
The parties hereto will execute such further assurances of the Lands and the rights
granted under this Agreement as may be required.
11.5 Assignment
EPCOR shall, without the consent of the Owner, but upon seven (7) days prior
written notice, have the right to assign, in whole or in part, to any person,
partnership, trust, govemment, agency or corporation, the rights granted,
transfemed and conveyed under this Agreement, including the Easement Rights,
provided that the assignee shall execute and deliver an assignment agreement in
a form to be provided by EPCOR,whereby the assignee agrees to assume and be
bound by the terms and conditions of this Agreement. Such notice shall include
the notice particulars as required by Clause 9.1.
11.6 EPCOR's use of Lands
EPCOR shall,without the consent of the Owner, have the right to grant the right to
use the Lands, in whole or in pa�t, in accordance with the terms and conditions
contained in this Agreement to any person, partnership,trust, government, agency
or corporation.
11.7 Enurement
This Agreement, including all covenants contained herein and all rights granted
hereunder, is and shall be of the same force and effect for all intents and purposes
as a covenant running with the Lands and shall extend to, be binding upon and
-8 -
enure for the benefit of the heirs, executors, administrators, successors-in-title and
assigns of the parties respectively.
11.8 Severability
If any term or condition of this Agreement is invalid or unenforceable under any
applicable statute or is declared invalid or unenforceable by a court of competent
jurisdiction, then such term or condition shall be deemed to be severed from this
Agreement, provided however, that the remainder of this Agreement shall not be
affected, shall continue in full force and effect and each remaining term and
condition shall be valid and be enforced to the fullest extent permitted by law.
11.9 Additional Taxes
EPCOR agrees that no taxes, rates, assessments, charges, levies or impositions
of any kind or nature of any governmental authority. Including without limitation
property taxes on the pipeline, shall be payable by or placed upon the Owner in
relation to any use of the Lands by EPCOR pursuant to this Agreement, and if any
such taxes, rates, assessments, charges, levies or impositions shall be levied,
imposed, or placed, EPCOR shall make payment thereof. All taxes or
assessments in the nature of sales taxes, good and services taxes or value added
taxes which may be charged, levied or assessed as a result of this Agreement,
whether or not such taxes are charged, levied or assessed as against the Owner,
shall be the responsibility of EPCOR, and EPCOR shall on written demand by the
Owner, pay to the Owner any and all such taxes.
11.10 Outstanding Charges, Taxes, Liens, etc.
Notwithstanding any other provision in this Agreement, if EPCOR determines that:
(a) there are outstanding charges, taxes, builders' liens, writs of execution,
judgments or other encumbrances which are registered against the Lands;
or
(b) there are any overdue amounts outstanding under any agreement for sale,
mortgage or other financial encumbrance that is registered against the
Lands;
EPCOR may, but is not obligated to, pay all or a portion of the compensation or
other amounts payable under this Agreement to the holder of such charge, lien,
writ of execution, judgment, mortgage or other financial encumbrance, or to such
vendor or mortgagee to satisfy and discharge such encumbrance or to obtain a
postponement from the encumbrance holder. The payment of any amount to such
third party shall be deemed to be payment of such amount to the Owner. For
greater certainty, EPCOR shall not be required to obtain the Owner's consent prior
to making such payment. EPCOR shall provide to the Owner written confirmation
of any such payments within thirty(30)days of making such payments.
-9 -
11.11 Sole Remedy
It is understood and agreed that notwithstanding any other provision in this
Agreement and notwithstanding any rights that any person having an interest may
have in law or in equity, should EPCOR fail to pay any payments payable
hereunder, the sole remedy of any such person having an interest shall be to
recover from EPCOR such amount and any interest payable thereon, and in no
event shall such person having an interest for whatever reason, interfere with,
hinder, molest or interrupt EPCOR in its enjoyment of any of the rights granted,
transferred and conveyed under this Agreement, including the Easement Rights.
11.12 Personallnformation
The Owner consents to the collection and use of its personal information within
this Agreement. EPCOR collects this type of personal information for the purposes
of general land rights acquisition and regulatory disclosure. The Owner consents
to the collection, use and disclosure of its personal information for these legitimate
business purposes in relation to land matters of EPCOR. The Owner is a municipal
corporation incorporated pursuant to the Municipal Act, 2001, S.O. 2001, c. 25, as
amended and is subject to the Municipal Freedom of Information and Protection of
PrivacyAct, R.S.O. 1990, c. M.56, as amended ("MIFFPA"). EPCOR agrees that
MIFFPA applies to all information or records within EPCOR's custody or control
that are collected or created specifically for the purposes of this Agreement.
11.13 Survival of Obligations
Any term or provision in this Agreement, which, in order to be given its fullest
intended effect, must extend past the expiration or termination of this Agreement
will survive the expiration or termination of this Agreement, including Articles 6, 7
and 10.
11.14 Insurance
Throughout the term of this Agreement, the Owner shall maintain in full force and
effect insurance coverage to the levels of a reasonable owner.
Throughout the term of this Agreement, EPCOR will maintain in full force and effect
the following insurance:
(a) Commercial General Liability insurance in an amount of not less than
$10,000,000.00 per occurrence for bodily injury including death and/or
property damage, which will include the following extensions: contractual
liability, non-owned automobile, products and completed operations,
broad form property damage, sudden and accidental pollution liability,
cross liability and/or severability of interest, contingent employer's liability,
and where applicable no exclusion for excavation, collapse, shoring and
underpinning; and
(b) Commercial Automobile Liability insurance covering all owned, leased or
hired licensed motor vehicles used in connection with the Lands with a
- 10 -
combined limit of not less than $10,000,000.00 per occurrence for bodily
injury including death and/or property damage.
(c) An environmental impairment liability policy with a limit of ten million dollars
($10,000,000) per occurrence to include the following:
(i) physical damage to properry including loss of use and the prevention,
control and clean-up of land,the atmosphere or any watercourse or body
of water;
(ii) gradual or sudden and accidental pollution for events such as fire,
explosion or a sudden spill, as well as seepage over time; and
(iii) first and third-party clean-up expenses, bodily injury and property
damage arising from a pollution event.
All insurance policies required to be held by EPCOR under this Agreement:
(a) must p�ovide the Owner with 30 days written notice of cancellation;
(b) where applicable, must be primary and not contributory with, or in excess
of, any other insurance carried by the Owner;
(c) may use primary and/or umbrella liability insurance to achieve required
limits; and
(d) EPCOR will be responsible for payment of all premiums and deductible
amounts relating to the insurance policies required to be held by EPCOR
under this Agreement.
11.15 Costs of Registration
Any costs related to the registration of document with the appropriate land registry
office shall be the sole responsibility of EPCOR.
11.16 Minor Changes for Reference Plan
The parties agree that the Agreement may be executed without completion of the
Reference Plan in Section 1.1 hereof. Upon completion of the Reference Plan, the
parties agree that this Agreement may be modified to include insertion of the
Reference Plan.
11.17 In this Agreement:
11.17.1 the word "shall" is to be read and interpreted as mandatory;
11.17.2 the word "may" is to be read and interpreted as permissive; and
11.17.3 the word "Owner" shalt be read and interpreted as meaning an
individual, a partnership, a corporation, a trust, an unincorporated
organization, a government, or any department or agency thereof, and
• , r
- 11 -
the heirs, executors, administrators or other legal representatives of
any individual.
11.18 Counterparts
This Agreement may be executed in any number of counterparts and all of which
taken together will constitute one and the same instrument. All parties agree that
this Agreement may be transmitted by telecopier or electronic transmission via
email and that the reproduction of signatures by way of telecopier or electronic
transmission via email were executed originals will be treated as though such
reproduction were executed originals and each pa�ty undertakes to provide the
other with a copy of this Agreement bearing original signatures within a reasonable
time after written request therefore.
IN WITNESS WHEREOF EPCOR AND THE OWNER HAVE EXECUTED THIS AGREEMENT
ON THE��bAY OF �t,��-t f= , 2021.
EPCOR: EPCOR NATURAL GAS LIMITED
PARTNERSHIP, by its general partner
EPCOR ONTARIO UTILITIES INC.
(� �-vllt^ti.�����
Per: �� c/s
Name:lY��� ��t.�'"��^(i -����'i-�-�.�_.-�...
Position:C;�Y.{r�� !�.�.���—irk�t�:� G�'S����l�rt/t2-
�.� �'�--�:h�'1,.� -
I have authority to bind the Corporation
OWNER: THE CORPORATION OF THE
MUNICIPALITY OF KINCARDINE
� -
Per:
Gerry Glov r, May
P
S aron Chambers, CAO
We have authority to bind the Corporation.
r , �
SCHEDULE "A"
LANDS
PT LT 8 W/S QUEEN ST PL KINCARDINE AS IN R112100;KINCARDINE being PIN 33312-0056
(LT)
� �
EPCOR UTILITIES N
PRELIMINARY PROPERTY SKETCH
EPCri•� SOUTHBRUCENASCEDULEAIPELINEPROJECT W E
PIN 33312-0066
PT LT 8 W!S OUEEN ST PL KINCARDINE AS IN R11210D; S
KINCARDINE
SURFACE LAND AGENT�. OWNER(S) AREA(5)
PROPERTY/JiEA: 0.05BAc 438m2
n�soo�.o�unwarm[rowworwrew�ora AREAREQl11RE0: O.00OAc.Sm2
SIGNED ON
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Comments/Notes:
0 IS 90 18011
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4 r
A1632C:3 d/e B= 0G-LAW No. 2020 - 143
MAINTENANCE PIPELINE EASEMENT AGREEMENT
PIPELINE EASEMENT
THIS AGREEMENT made the ___ day of _____________________ , 2020.
BETWEEN:
EPCOR NATURAL GAS LIMITED PARTNERSHIP
d3>1=@e
- and -
THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE \\RO d=_WOZe
WHEREAS:
A. The Owner is the registered owner of an estate in fee simple, subject to such
encumbrances, liens and interests as are at the date hereof set forth in the parcel register,
in the lands situated in the Province of Ontario and legally described as:
PIN \[\]
B. The Owner has agreed to grant to EPCOR a right-of-way and easement across all or a
portion of the Lands (as defined below) in accordance with the terms and conditions
contained in this Agreement.
IN CONSIDERATION OF the mutual covenants and agreements set forth herein and for other
good and valuable consideration, the receipt and sufficiency of which is acknowledged by each
of the parties, and in consideration of the payment of the Fee (as defined below) by EPCOR to
the Owner, EPCOR and the Owner agree as follows:
1. GRANT
1.1 The Owner hereby grants, conveys and transfers unto EPCOR a non-exclusive
right, license, liberty, privilege and easement S\\_ N aR_Z \\S )( fRN_`h YR`` N QNf on,
over, across, along, in, under and through that portion of the Lands (as defined
below) outlined in red and/or shown as cross-hatched on the attached Schedule
i3j N\[Q QR`P_VORQ N` S\\YY\\d` those parts of:
\[\];
being parts on Reference Plan \]!aUR i Lands j"%
to lay down, construct, operate, maintain, inspect, patrol (including aerial patrol),
alter, relocate, remove, replace, reconstruct and repair a line of pipe together with
all facilities or works of EPCOR useful in connection with or incidental to its
undertaking, including, but without limiting the generality of the foregoing, all such
pipes, drips, valves, fittings, connections, meters, cathodic protection equipment
and other equipment and appurtenances, whether or not similar to the foregoing,
as may be useful or convenient in connection therewith or incidental thereto for the
carriage, transmission, conveyance, transportation and handling of oil, natural and
artificial gas and other gaseous or liquid hydrocarbons and any product or by-
product thereof (such line of pipe together with such related facilities or works
ORV\[T _RSR__RQ a\\ P\\YYRPaVcRYf N` aUR i Pipeline j"% Notwithstanding anything else
herein, the Owner shall not grant any of the foregoing rights to any other person
without the prior written consent of EPCOR which shall not be unreasonably
withheld.
2. FEE
2.1 Upon the execution of this Agreement by EPCOR and the Owner, EPCOR shall
pay to the Owner the sum of One Dollar ($1.00) exclusive of Harmonized Sales
ENe !aUR i Fee j"# aUR _RPRV\]a \\S dUVPU V` NPX\[\\dYRQTRQ Of aUR Ad\[R_% The payment
of the Fee by EPCOR is the sole consideration and inducement for the execution
by the Owner of this Agreement and is the total compensation payable by EPCOR
to the Owner for the right to use the Lands as stated in this Agreement.
3. RIGHT OF ACCESS
3.1 EPCOR shall have the right at any time and from time to time to do whatever may
be required for the enjoyment of the rights granted under this Agreement, including
the removal of any boulder or rock or the trimming and removal of all trees, shrubs
and other vegetation on, over, across, along, in, under and through the Lands.
3.2 Upon execution of this Agreement by EPCOR and the Owner, EPCOR may
ingress and egress at any and all times on, over, along, across, along, in, under
and through the Lands with its servants, agents, employees, contractors and
`bOP\\\[a_NPa\\_` !P\\YYRPaVcRYf# aUR i Authorized Representatives j"# \\\[ S\\\\a N\[Q&\\_
with vehicles, supplies, machinery and equipment, for all purposes useful or
convenient in connection with or incidental to the exercise and enjoyment of the
rights granted pursuant to this Agreement.
3.3 EPCOR and its Authorized Representatives shall have the right of ingress and
egress from the Lands at any and all times on, over across, along, in, under and
through the Lands for the purposes of exercising the rights granted under this
Agreement. This right of access shall be used only in cases of necessity or
RZR_TR\[Pf# N` QRaR_ZV\[RQ Of 7B5AC V\[ 7B5ACh` `\\YR N\[Q NO`\\YbaR QV`P_RaV\\\[%
EPCOR shall pay reasonable compensation to the Owner of the Lands for any
damage caused by EPCOR and its Authorized Representatives in the exercise of
the right of access as granted to EPCOR under this Clause 3.3.
3.4 The rights, licenses, liberties, privileges and easements specifically described in
Clauses 1 and 3 N_R ORV\[T _RSR__RQ a\\ P\\YYRPaVcRYf N` aUR i Easement Rights j%
4. PIPELINE
4.1 Notwithstanding any rule of law or equity to the contrary, the Pipeline shall at all
times remain a chattel and the personal property of EPCOR or its assigns and shall
not become part of the Lands, notwithstanding that it may be annexed or affixed
to the Lands or abandoned by EPCOR.
4.2 EPCOR shall install, construct, operate and maintain the Pipeline in a responsible
manner so as to minimize damage to the Lands and shall, where practicable, after
any such work restore the Lands to substantially its original level and condition,
save and except for any soil rise above grade to allow for soil settlement (the
i Restoration Work j". EPCOR shall not be responsible for any damages caused
by subsidence after levelling is completed, provided the subsidence does not occur
as a result of negligence on the part of EPCOR. Notwithstanding the foregoing, or
Clause 7.1, EPCOR shall only be obligated to compensate the Owner for damage
to buildings or improvements that may be placed within the Lands, and arising from
the exercise by EPCOR of its rights under this Agreement, if EPCOR has given its
prior written consent pursuant to Clause 5.2 to the placement of such buildings or
improvements within the Lands.
4.3 If EPCOR has not commenced the Restoration Work within a period of ninety (90)
days following completion of the Pipeline, the Owner may after thirty (30) days prior
written notice, complete the Restoration Work, in accordance with all applicable
requirements including TSSA requirements and if such requirements must be
completed by a natural gas utility the Owner shall not complete any portion of the
Restoration Work governed by those requirements, provided there is no
interference with the Easement Rights. EPCOR shall pay to the Owner within
fifteen (15) business days following demand, all reasonable amounts paid by the
Owner in respect of such Restoration Work.
4.4 EPCOR shall have the right to temporarily fence and use such portions of the
Lands as may in its opinion be required. If at any time EPCOR shall require
temporary fencing for maintenance or operational reasons, such fencing shall be
temporary and EPCOR shall obtain the prior written consent of the Owner, acting
reasonably, as to the type, term and location of any fencing and shall locate such
temporary fencing insofar as may be practicable so to do, in such a fashion as to
provide a minimum of inconvenience to the Owner. EPCOR shall furnish to the
Owner a plan of the intended location. EPCOR shall within a period of thirty (30)
days following completion of the Pipeline, compensate the Owner for any
inconvenience caused to the Owner and for all damage occurring as a result of
fencing any such portion of the Lands.
4.5 EPCOR may at any time for whatsoever reason or cause abandon the Pipeline in
accordance with the then-applicable legislation, regulations and governmental
directions. In the event of the abandonment of the Pipeline, EPCOR may, at its
option, either leave the Pipeline in place or remove it provided this option remains
in accordance with the then-applicable legislation. If EPCOR leaves the Pipeline
in place EPCOR shall complete decommissioning procedures and comply with all
applicable legislation. In the event of removal, EPCOR shall conserve, reclaim
and remediate the portion of the Lands affected by the exercise of the rights herein
granted, insofar as it is practicable to do so and in accordance with the then-
applicable legislation, regulations and governmental directions. In the event of
removal or decommissioning, as the case may be, and subject to the then-
applicable legislation, EPCOR agrees to discharge this Agreement and the
Easement Rights in the appropriate Land Registry Office within 180 days from the
effective date of the removal of the Pipeline or the completion of the
decommissioning of the Pipeline.
5. =E<3@cA CA3 =4 LANDS
5.1 The Owner shall not use the Lands in any manner which may conflict with the
rights of EPCOR as granted to EPCOR pursuant to this Agreement.
5.2 The Owner shall not, without the prior written consent of EPCOR which consent
shall not be unreasonably withheld, stockpile, excavate, drill, install, erect,
construct or place above, through, on or under the Lands any pavement, building,
fence, pit, well, pipe, foundation, sidewalk, or other structure or improvement, or
do or permit to be done any mining, quarrying, land levelling or other work or
activity of any like or similar nature on, in or under the Lands. The Owner shall not
permit any of these activities to occur by others.
5.3 The Owner shall not alter the surface grade level of the Lands in any manner which
would affect the rights granted to EPCOR pursuant to this Agreement.
5.4 The Owner shall not plant any trees within the Lands. Existing trees on the Lands
shall not be removed without the prior written consent of the Owner.
5.5 The Owner shall not store or otherwise place toxic, hazardous, dangerous,
flammable, potentially explosive, noxious or waste substances or contaminants
!aUR i Hazardous Materials j" dVaUV\[ aUR Lands, nor shall the Owner permit the
storage or placement by a third party of such substances within the Lands.
5.6 The Owner shall be responsible for the maintenance of the Lands, including but
not limited to such items as grass cutting and clean-up, replacement and repair of
the Lands in such a manner that it shall be suitable at aYY aVZR` S\\_ 7B5ACh` b`R
as permitted by this Agreement. The Owner shall undertake any maintenance
directed by EPCOR to maintain the said Lands within sixty (60) days of receiving
written notification.
5.7 Subject to the foregoing and to the provisions of applicable legislation, regulations
and governmental directions, and provided that there is no interference with the
Easement Rights, the Owner shall have the right to use and enjoy the Lands. In
addition, EPCOR hereby grants permission to the Owner to cross the buried
Pipeline with ordinary farming vehicles as necessary in connection with ordinary
cultivation, as such vehicles are defined by EPCOR from time to time and
communicated in writing to the Owner at the address set out in Clause 9.
6. ENVIRONMENTAL OBLIGATIONS
6.1 EPCOR and the Owner shall comply with all applicable legislation, regulations and
governmental direction dealing with environmental issues, including the
:NgN_Q\\b` ?NaR_VNY` !aUR i Environmental Laws j"# _RYNaRQ a\\ aUR Lands.
6.2 The Owner represents and warrants that the Lands have not been used for the
storage of the Hazardous Materials. If EPCOR encounters any Hazardous
Materials in undertaking any work within the Lands, it shall give notice to the
Owner. 3a aUR Re\]R\[`R \\S aUR Ad\[R_# 7B5AC !\\_# Na 7B5ACh` \\\]aV\\\[# aUR Ad\[R_"
shall effect the removal of such Hazardous Materials in accordance with the
Environmental Laws.
6.3 The responsibility of EPCOR and the Owner with respect to environmental
obligations, as required by this Agreement, shall continue to be enforceable during
and after the termination of this Agreement.
7. INDEMNITY AND COMPENSATION
7.1 EPCOR acknowledges and agrees that, in exercising any of its rights under this
Easement Agreement, it shall do so at its own risk and expense. Unless the loss
or damage is directly attributable to the gross negligence or willful misconduct of
the Owner, its elected officials, officers, employees and agents and those persons
for whom the Owner is responsible in law, EPCOR shall not have a claim against
the Owner for any loss or damage by whomsoever caused to EB5ACh` \]_\\\]R_af%
Except for the gross negligence or willful misconduct of the Owner,its employees,
agents, contractors, subcontractors and those persons for whom the Owner is
responsible in law, EPCOR shall:
(a) be liable to the Owner for; and
(b) indemnify and save harmless the Owner, its employees, agents,
contractors, subcontractors and those persons for whom the Owner is
responsible in law from and against
any and all claims, suits, actions, demands, expenses, damages and costs which
may be brought or made against the Owner or which the Owner may pay or incur
by reason of any breach, violation or non-performance by EPCOR of any covenant,
term or provision of this Agreement or by reason of the gross negligence or willful
misconduct of EPCOR, its agents, employees, contractors, subcontractors and
those persons for whom EPCOR is responsible in law, in the exercise of the rights
as granted to EPCOR under this Agreement. This indemnity shall be in addition to
and not in lieu of any insurance to be provided by EPCOR in accordance with this
Easement Agreement and shall survive this Easement Agreement.
8. QUIET ENJOYMENT
8.1 EPCOR by performing and observing the terms and conditions of this Agreement
shall and may peaceably hold and enjoy all the rights granted under this
Agreement, without hindrance, molestation or interruption on the part of the Owner
or any person claiming by, through, under, from or in trust for, the Owner.
9. ADDRESS FOR CONSENT OR NOTICE
9.1 Any written consent required to be obtained from, and any notices to be given to,
EPCOR or the Owner, as the case may be, pursuant to this Agreement shall be in
writing and obtained or effected by delivering the request or notice to EPCOR or
the Owner in person or by email, registered mail, postage prepaid, addressed as
follows:
To EPCOR:
EPCOR Natural Gas Limited Partnership
Attention: General Manager
39 Beech Street East
Alymer ON N5H 3J6
Email:________________________________
To the Owner:
The Corporation of the Municipality of Kincardine
1475 Concession 5
Kincardine, ON
N2Z 2X6
Attention: Clerk
Email: _________________________________
A notice will be effective on: (i) the other pN_afh` _RPRV\]a \\S Va2 \\_ !VV" VS `R\[a Of
registered mail, on the earlier of the other pN_afh` _RPRV\]a \\S Va N\[Q aUR seventh day
after mailing it.
10. DISPUTE RESOLUTION
10.1 In the event of a determination by either party in regard to a matter in dispute
between EPCOR and the Owner as to the interpretation or effect of any of the
terms or conditions of this Agreement, and where notice of such determination has
been delivered to EPCOR or the Owner, as the case may be, the determination
shall be conclusively deemed to have been accepted by the parties, unless, within
ten (10) days of the receipt of notice of the determination the party receiving the
notice gives written notice to aUR \\aUR_ \]N_af !aUR i Arbitration Notice j" \\S aURV_
desire to have the matter in dispute resolved by arbitration.
10.2 Within seven (7) days of receipt of the Arbitration Notice, the parties shall mutually
N\]\]\\V\[a N\[ N_OVa_Na\\_ !aUR i Arbitrator j"% In the event that the parties shall fail to
agree on the appointment of the Arbitrator, then either party may, on written notice
to the other, apply to the Ontario Superior Court of Justice for the appointment of
the Arbitrator, pursuant to the Arbitration Act, 1991, S.O. 1991, c. 17, as amended
!aUR i Arbitration Act j"%
10.3 The seat of arbitration shall be Kincardine, Ontario.
10.4 The Arbitrator shall be directed to make its determination on the basis of a
presumption that this Agreement does not require amendments. Any
determination of the Arbitrator shall include a determination as to payment of the
costs of the arbitration. The determination of the Arbitrator shall be final and
binding on the parties and there shall be no right to appeal of such decision to the
courts.
10.5 Except as modified by this Agreement, the provisions of the Arbitration Act and its
regulations or any successive legislation shall apply.
11. GENERAL
11.1 Entire Agreement
There are no conditions, either subsequent or precedent, except as stated in this
Agreement and in the letter of understanding between the Parties dated October
MMMM# )')' !aUR i LOU j". This Agreement and the LOU represent the entire
agreement between EPCOR and the Owner and no representations or warranties
have been made by EPCOR, except as stated in this Agreement and the LOU.
11.2 Governing Law
This Agreement shall be governed by and construed in accordance with the laws
in force in the Province of Ontario and the laws of Canada applicable therein.
11.3 Easement in Gross
The rights granted under this Agreement, including the Easement Rights, are
declared to be an easement in gross.
11.4 Further Assurances
The parties hereto will execute such further assurances of the Lands and the rights
granted under this Agreement as may be required.
11.5 Assignment
EPCOR shall, without the consent of the Owner, but upon seven (7) days prior
written notice, have the right to assign, in whole or in part, to any person,
partnership, trust, government, agency or corporation, the rights granted,
transferred and conveyed under this Agreement, including the Easement Rights,
provided that the assignee shall execute and deliver an assignment agreement in
a form to be provided by EPCOR, whereby the assignee agrees to assume and be
bound by the terms and conditions of this Agreement. Such notice shall include
the notice particulars as required by Clause 9.1.
11.63>1=@c\[ \]\[O XP :KWN\[
EPCOR shall, without the consent of the Owner, have the right to grant the right to
use the Lands, in whole or in part, in accordance with the terms and conditions
contained in this Agreement to any person, partnership, trust, government, agency
or corporation.
11.7 Enurement
This Agreement, including all covenants contained herein and all rights granted
hereunder, is and shall be of the same force and effect for all intents and purposes
as a covenant running with the Lands and shall extend to, be binding upon and
enure for the benefit of the heirs, executors, administrators, successors-in-title and
assigns of the parties respectively.
11.8 Severability
If any term or condition of this Agreement is invalid or unenforceable under any
applicable statute or is declared invalid or unenforceable by a court of competent
jurisdiction, then such term or condition shall be deemed to be severed from this
Agreement, provided however, that the remainder of this Agreement shall not be
affected, shall continue in full force and effect and each remaining term and
condition shall be valid and be enforced to the fullest extent permitted by law.
11.9 Additional Taxes
EPCOR agrees that no taxes, rates, assessments, charges, levies or impositions
of any kind or nature of any governmental authority. Including without limitation
property taxes on the pipeline, shall be payable by or placed upon the Owner in
relation to any use of the Lands by EPCOR pursuant to this Agreement, and if any
such taxes, rates, assessments, charges, levies or impositions shall be levied,
imposed, or placed, EPCOR shall make payment thereof. All taxes or
assessments in the nature of sales taxes, good and services taxes or value added
taxes which may be charged, levied or assessed as a result of this Agreement,
whether or not such taxes are charged, levied or assessed as against the Owner,
shall be the responsibility of EPCOR, and EPCOR shall on written demand by the
Owner, pay to the Owner any and all such taxes.
11.10 Outstanding Charges, Taxes, Liens, etc.
Notwithstanding any other provision in this Agreement, if EPCOR determines that:
(a) aUR_R N_R \\ba`aN\[QV\[T PUN_TR`# aNeR`# ObVYQR_`h YVR\[`# d_Va` \\S execution,
judgments or other encumbrances which are registered against the Lands;
or
(b) there are any overdue amounts outstanding under any agreement for sale,
mortgage or other financial encumbrance that is registered against the
Lands;
EPCOR may, but is not obligated to, pay all or a portion of the compensation or
other amounts payable under this Agreement to the holder of such charge, lien,
writ of execution, judgment, mortgage or other financial encumbrance, or to such
vendor or mortgagee to satisfy and discharge such encumbrance or to obtain a
postponement from the encumbrance holder. The payment of any amount to such
third party shall be deemed to be payment of such amount to the Owner. For
greater certainty, EPCOR shall not be required to \\OaNV\[ aUR Ad\[R_h` P\\\[`R\[a \]_V\\_
to making such payment. EPCOR shall provide to the Owner written confirmation
of any such payments within thirty (30) days of making such payments.
11.11 Sole Remedy
It is understood and agreed that notwithstanding any other provision in this
Agreement and notwithstanding any rights that any person having an interest may
have in law or in equity, should EPCOR fail to pay any payments payable
hereunder, the sole remedy of any such person having an interest shall be to
recover from EPCOR such amount and any interest payable thereon, and in no
event shall such person having an interest for whatever reason, interfere with,
hinder, molest or interrupt EPCOR in its enjoyment of any of the rights granted,
transferred and conveyed under this Agreement, including the Easement Rights.
11.12 Personal Information
The Owner consents to the collection and use of its personal information within
this Agreement. EPCOR collects this type of personal information for the purposes
of general land rights acquisition and regulatory disclosure. The Owner consents
to the collection, use and disclosure of its personal information for these legitimate
business purposes in relation to land matters of EPCOR. The Owner is a municipal
corporation incorporated pursuant to the Municipal Act, 2001, S.O. 2001, c. 25, as
amended and is subject to the Municipal Freedom of Information and Protection
of Privacy Act, R.S.O. 1990, c. M.56, as amended !i?;88B3j"% EPCOR agrees
that MIFFPA applies to all V\[S\\_ZNaV\\\[ \\_ _RP\\_Q` dVaUV\[ 7B5ACh` Pb`a\\Qf \\_
control that are collected or created specifically for the purposes of this Agreement.
11.13 Survival of Obligations
Any term or provision in this Agreement, which, in order to be given its fullest
intended effect, must extend past the expiration or termination of this Agreement
will survive the expiration or termination of this Agreement, including Articles 6, 7
and 10.
11.14 Insurance
Throughout the term of this Agreement, the Owner shall maintain in full force and
effect insurance coverage to the levels of a reasonable owner.
Throughout the term of this Agreement, EPCOR will maintain in full force and effect
the following insurance:
(a) Commercial General Liability insurance in an amount of not less than
$10,000,000.00 per occurrence for bodily injury including death and/or
property damage, which will include the following extensions: contractual
liability, non-owned automobile, products and completed operations,
broad form property damage, sudden and accidental pollution liability,
P_\\`` YVNOVYVaf N\[Q&\\_ `RcR_NOVYVaf \\S V\[aR_R`a# P\\\[aV\[TR\[a RZ\]Y\\fR_h` YVNOVYVaf#
and where applicable no exclusion for excavation, collapse, shoring and
underpinning; and
(b) Commercial Automobile Liability insurance covering all owned, leased or hired
licensed motor vehicles used in connection with the Lands with a combined
limit of not less than $10,000,000.00 per occurrence for bodily injury including
death and/or property damage.
(c) An environmental impairment liability policy with a limit of ten million dollars
($10,000,000) per occurrence to include the following:
! physical damage to property including loss of use and the prevention,
control and clean-up of land, the atmosphere or any watercourse or body
of water;
!! gradual or sudden and accidental pollution for events such as fire,
explosion or a sudden spill, as well as seepage over time; and
!!! first and third-party clean-up expenses, bodily injury and property
damage arising from a pollution event.
All insurance policies required to be held by EPCOR under this Agreement:
(a) must provide the Owner with 30 days written notice of cancellation;
(b) where applicable, must be primary and not contributory with, or in excess
of, any other insurance carried by the Owner;
(c) may use primary and/or umbrella liability insurance to achieve required
limits; and
(d) EPCOR will be responsible for payment of all premiums and deductible
amounts relating to the insurance policies required to be held by EPCOR
under this Agreement.
11.15 Costs of Registration
Any costs related to the registration of document with the appropriate land registry
office shall be the sole responsibility of EPCOR.
11.16 Minor Changes for Reference Plan
The parties agree that the Agreement may be executed without completion of the
Reference Plan in Section 1.1 hereof. Upon completion of the Reference Plan, the
parties agree that this Agreement may be modified to include insertion of the
Reference Plan.
11.17 In this Agreement:
11.17.1 the word "shall" is to be read and interpreted as mandatory;
11.17.2 the word "may" is to be read and interpreted as permissive; and
11.17.3 the word "Owner" shall be read and interpreted as meaning an
individual, a partnership, a corporation, a trust, an unincorporated
organization, a government, or any department or agency thereof, and
the heirs, executors, administrators or other legal representatives of
any individual.
11.18 Counterparts
This Agreement may be executed in any number of counterparts and all of which
taken together will constitute one and the same instrument. All parties agree that
this Agreement may be transmitted by telecopier or electronic transmission via
email and that the reproduction of signatures by way of telecopier or electronic
transmission via email were executed originals will be treated as though such
reproduction were executed originals and each party undertakes to provide the
other with a copy of this Agreement bearing original signatures within a reasonable
time after written request therefore.
THE REMAINDER OF THIS PAGE IS LEFT INTENTIONALLY BLANK
IN WITNESS WHEREOF EPCOR AND THE OWNER HAVE EXECUTED THIS AGREEMENT
ON THE ___ DAY OF _____________________, 2020.
EPCOR: EPCOR NATURAL GAS LIMITED
PARTNERSHIP, by its general partner
EPCOR ONTARIO UTILITIES INC.
Per: _________________________ c/s
Name:
Position:
I have authority to bind the Corporation
OWNER: THE CORPORATION OF THE
MUNICIPALITY OF KINCARDINE
Per: __________________________
Anne Eadie, Mayor
Per: __________________________
Sharon Chambers, CAO
We have authority to bind the Corporation.
Non-Maintenance Easement Agreement
A1632C:3 d/e
LANDS
A1632C:3 dBe B= 0G-LAW 2020 - 143
NON-MAINTENANCE PIPELINE EASEMENT AGREEMENT
PIPELINE EASEMENT
THIS AGREEMENT made the ___ day of _____________________ , 2020.
BETWEEN:
EPCOR NATURAL GAS LIMITED PARTNERSHIP
d3>1=@e
- and -
THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE (the d=_WOZe
WHEREAS:
C. The Owner is the registered owner of an estate in fee simple, subject to such
encumbrances, liens and interests as are at the date hereof set forth in the parcel register,
in the lands situated in the Province of Ontario and legally described as:
PIN \[\]
D. The Owner has agreed to grant to EPCOR a right-of-way and easement across all or a
portion of the Lands (as defined below) in accordance with the terms and conditions
contained in this Agreement.
IN CONSIDERATION OF the mutual covenants and agreements set forth herein and for other
good and valuable consideration, the receipt and sufficiency of which is acknowledged by each
of the parties, and in consideration of the payment of the Fee (as defined below) by EPCOR to
the Owner, EPCOR and the Owner agree as follows:
12. GRANT
12.1 The Owner hereby grants, conveys and transfers unto EPCOR a non-exclusive
right, license, liberty, privilege and easement S\\_ N aR_Z \\S )( fRN_`h YR`` N QNf on,
over, across, along, in, under and through that portion of the Lands (as defined
below) outlined in red and/or shown as cross-hatched on the attached Schedule
i3j N\[Q QR`P_VORQ N` S\\YY\\d` those parts of:
\[\];
being parts on Reference Plan \]!aUR i Lands j"%
to lay down, construct, operate, maintain, inspect, patrol (including aerial patrol),
alter, relocate, remove, replace, reconstruct and repair a line of pipe together with
all facilities or works of EPCOR useful in connection with or incidental to its
undertaking, including, but without limiting the generality of the foregoing, all such
pipes, drips, valves, fittings, connections, meters, cathodic protection equipment
and other equipment and appurtenances, whether or not similar to the foregoing,
as may be useful or convenient in connection therewith or incidental thereto for the
carriage, transmission, conveyance, transportation and handling of oil, natural and
artificial gas and other gaseous or liquid hydrocarbons and any product or by-
product thereof (such line of pipe together with such related facilities or works
ORV\[T _RSR__RQ a\\ P\\YYRPaVcRYf N` aUR i Pipeline j"% Notwithstanding anything else
herein, the Owner shall not grant any of the foregoing rights to any other person
without the prior written consent of EPCOR which shall not be unreasonably
withheld.
13. FEE
2.1 Upon the execution of this Agreement by EPCOR and the Owner, EPCOR shall
pay to the Owner the sum of One Dollar ($1.00) exclusive of Harmonized Sales
ENe !aUR i Fee j"# aUR _RPRV\]a \\S dUVPU V` NPX\[\\dledged by the Owner. The payment
of the Fee by EPCOR is the sole consideration and inducement for the execution
by the Owner of this Agreement and is the total compensation payable by EPCOR
to the Owner for the right to use the Lands as stated in this Agreement.
14. RIGHT OF ACCESS
14.1 EPCOR shall have the right at any time and from time to time to do whatever may
be required for the enjoyment of the rights granted under this Agreement, including
the removal of any boulder or rock or the trimming and removal of all trees, shrubs
and other vegetation on, over, across, along, in, under and through the Lands.
14.2 Upon execution of this Agreement by EPCOR and the Owner, EPCOR may
ingress and egress at any and all times on, over, along, across, along, in, under
and through the Lands with its servants, agents, employees, contractors and
subcontractors (collectively, tUR i Authorized Representatives j"# \\\[ S\\\\a N\[Q&\\_
with vehicles, supplies, machinery and equipment, for all purposes useful or
convenient in connection with or incidental to the exercise and enjoyment of the
rights granted pursuant to this Agreement.
14.3 EPCOR and its Authorized Representatives shall have the right of ingress and
egress from the Lands at any and all times on, over across, along, in, under and
through the Lands for the purposes of exercising the rights granted under this
Agreement. This right of access shall be used only in cases of necessity or
RZR_TR\[Pf# N` QRaR_ZV\[RQ Of 7B5AC V\[ 7B5ACh` `\\YR N\[Q NO`\\YbaR QV`P_RaV\\\[%
EPCOR shall pay reasonable compensation to the Owner of the Lands for any
damage caused by EPCOR and its Authorized Representatives in the exercise of
the right of access as granted to EPCOR under this Clause 3.3.
14.4 The rights, licenses, liberties, privileges and easements specifically described in
Clauses 1 and 3 N_R ORV\[T _RSR__RQ a\\ P\\YYRPaVcRYf N` aUR i Easement Rights j%
15. PIPELINE
15.1 Notwithstanding any rule of law or equity to the contrary, the Pipeline shall at all
times remain a chattel and the personal property of EPCOR or its assigns and shall
not become part of the Lands, notwithstanding that it may be annexed or affixed
to the Lands or abandoned by EPCOR.
15.2 EPCOR shall install, construct, operate and maintain the Pipeline in a responsible
manner so as to minimize damage to the Lands and shall, where practicable, after
any such work restore the Lands to substantially its original level and condition,
save and except for any soil rise above grade to allow for soil settlement (the
i Restoration Work j". EPCOR shall not be responsible for any damages caused
by subsidence after levelling is completed, provided the subsidence does not occur
as a result of negligence on the part of EPCOR. Notwithstanding the foregoing, or
Clause 7.1, EPCOR shall only be obligated to compensate the Owner for damage
to buildings or improvements that may be placed within the Lands, and arising from
the exercise by EPCOR of its rights under this Agreement, if EPCOR has given its
prior written consent pursuant to Clause 5.2 to the placement of such buildings or
improvements within the Lands.
15.3 If EPCOR has not commenced the Restoration Work within a period of ninety (90)
days following completion of the Pipeline, the Owner may after thirty (30) days prior
written notice, complete the Restoration Work, in accordance with all applicable
requirements including TSSA requirements and if such requirements must be
completed by a natural gas utility the Owner shall not complete any portion of the
Restoration Work governed by those requirements, provided there is no
interference with the Easement Rights. EPCOR shall pay to the Owner within
fifteen (15) business days following demand, all reasonable amounts paid by the
Owner in respect of such Restoration Work.
15.4 EPCOR shall have the right to temporarily fence and use such portions of the
Lands as may in its opinion be required. If at any time EPCOR shall require
temporary fencing for maintenance or operational reasons, such fencing shall be
temporary and EPCOR shall obtain the prior written consent of the Owner, acting
reasonably, as to the type, term and location of any fencing and shall locate such
temporary fencing insofar as may be practicable so to do, in such a fashion as to
provide a minimum of inconvenience to the Owner. EPCOR shall furnish to the
Owner a plan of the intended location. EPCOR shall within a period of thirty (30)
days following completion of the Pipeline, compensate the Owner for any
inconvenience caused to the Owner and for all damage occurring as a result of
fencing any such portion of the Lands.
15.5 EPCOR may at any time for whatsoever reason or cause abandon the Pipeline in
accordance with the then-applicable legislation, regulations and governmental
directions. In the event of the abandonment of the Pipeline, EPCOR may, at its
option, either leave the Pipeline in place or remove it provided this option remains
in accordance with the then-applicable legislation. If EPCOR leaves the Pipeline
in place EPCOR shall complete decommissioning procedures and comply with all
applicable legislation. In the event of removal, EPCOR shall conserve, reclaim
and remediate the portion of the Lands affected by the exercise of the rights herein
granted, insofar as it is practicable to do so and in accordance with the then-
applicable legislation, regulations and governmental directions. In the event of
removal or decommissioning, as the case may be, and subject to the then-
applicable legislation, EPCOR agrees to discharge this Agreement and the
Easement Rights in the appropriate Land Registry Office within 180 days from the
effective date of the removal of the Pipeline or the completion of the
decommissioning of the Pipeline.
16. =E<3@cA CA3 =4 LANDS
16.1 The Owner shall not use the Lands in any manner which may conflict with the
rights of EPCOR as granted to EPCOR pursuant to this Agreement.
16.2 The Owner shall not, without the prior written consent of EPCOR which consent
shall not be unreasonably withheld, stockpile, excavate, drill, install, erect,
construct or place above, through, on or under the Lands any pavement, building,
fence, pit, well, pipe, foundation, sidewalk, or other structure or improvement, or
do or permit to be done any mining, quarrying, land levelling or other work or
activity of any like or similar nature on, in or under the Lands. The Owner shall not
permit any of these activities to occur by others.
16.3 The Owner shall not alter the surface grade level of the Lands in any manner which
would affect the rights granted to EPCOR pursuant to this Agreement.
16.4 The Owner shall not plant any trees within the Lands. Existing trees on the Lands
shall not be removed without the prior written consent of the Owner.
16.5 The Owner shall not store or otherwise place toxic, hazardous, dangerous,
flammable, potentially explosive, noxious or waste substances or contaminants
!aUR i Hazardous Materials j" dVaUV\[ aUR Lands, nor shall the Owner permit the
storage or placement by a third party of such substances within the Lands.
16.6 The Owner shall not be responsible for the maintenance of the Lands which will
allow EPCOR to utilize the rights granted in this Agreement and EPCOR is
authorized to maintain that portion of the Lands which it requires for its enjoyment
of the rights granted hereunder.
16.7 Subject to the foregoing and to the provisions of applicable legislation, regulations
and governmental directions, and provided that there is no interference with the
Easement Rights, the Owner shall have the right to use and enjoy the Lands. In
addition, EPCOR hereby grants permission to the Owner to cross the buried
Pipeline with ordinary farming vehicles as necessary in connection with ordinary
cultivation, as such vehicles are defined by EPCOR from time to time and
communicated in writing to the Owner at the address set out in Clause 9.
17. ENVIRONMENTAL OBLIGATIONS
17.1 EPCOR and the Owner shall comply with all applicable legislation, regulations and
governmental direction dealing with environmental issues, including the
:NgN_Q\\b` ?NaR_VNY` !aUR i Environmental Laws j"# _RYNaRQ a\\ aUR Lands.
17.2 The Owner represents and warrants that the Lands have not been used for the
storage of the Hazardous Materials. If EPCOR encounters any Hazardous
Materials in undertaking any work within the Lands, it shall give notice to the
Owner. 3a aUR Re\]R\[`R \\S aUR Ad\[R_# 7B5AC !\\_# Na 7B5ACh` \\\]aV\\\[# aUR Ad\[R_"
shall effect the removal of such Hazardous Materials in accordance with the
Environmental Laws.
17.3 The responsibility of EPCOR and the Owner with respect to environmental
obligations, as required by this Agreement, shall continue to be enforceable during
and after the termination of this Agreement.
18. INDEMNITY AND COMPENSATION
7.1 EPCOR acknowledges and agrees that, in exercising any of its rights under this
Easement Agreement, it shall do so at its own risk and expense. Unless the loss
or damage is directly attributable to the gross negligence or willful misconduct of
the Owner, its elected officials, officers, employees and agents and those persons
for whom the Owner is responsible in law, EPCOR shall not have a claim against
the Owner for any loss or damage by dU\\Z`\\RcR_ PNb`RQ a\\ 7B5ACh` \]_\\\]R_af%
Except for the gross negligence or willful misconduct of the Owner,its employees,
agents, contractors, subcontractors and those persons for whom the Owner is
responsible in law, EPCOR shall:
(c) be liable to the Owner for; and
(d) indemnify and save harmless the Owner, its employees, agents,
contractors, subcontractors and those persons for whom the Owner is
responsible in law from and against
any and all claims, suits, actions, demands, expenses, damages and costs which
may be brought or made against the Owner or which the Owner may pay or incur
by reason of any breach, violation or non-performance by EPCOR of any covenant,
term or provision of this Agreement or by reason of the gross negligence or willful
misconduct of EPCOR, its agents, employees, contractors, subcontractors and
those persons for whom EPCOR is responsible in law, in the exercise of the rights
as granted to EPCOR under this Agreement. This indemnity shall be in addition to
and not in lieu of any insurance to be provided by EPCOR in accordance with this
Easement Agreement and shall survive this Easement Agreement.
19. QUIET ENJOYMENT
8.1 EPCOR by performing and observing the terms and conditions of this Agreement
shall and may peaceably hold and enjoy all the rights granted under this
Agreement, without hindrance, molestation or interruption on the part of the Owner
or any person claiming by, through, under, from or in trust for, the Owner.
20. ADDRESS FOR CONSENT OR NOTICE
20.1 Any written consent required to be obtained from, and any notices to be given to,
EPCOR or the Owner, as the case may be, pursuant to this Agreement shall be in
writing and obtained or effected by delivering the request or notice to EPCOR or
the Owner in person or by email, registered mail, postage prepaid, addressed as
follows:
To EPCOR:
EPCOR Natural Gas Limited Partnership
Attention: General Manager
39 Beech Street East
Alymer ON N5H 3J6
Email:________________________________
To the Owner:
The Corporation of the Municipality of Kincardine
1475 Concession 5
Kincardine, ON
N2Z 2X6
Attention: Clerk
Email: _________________________________
A notice will be effective on: (i) the other pN_afh` _RPRV\]a \\S Va2 \\_ !VV" VS `R\[a Of
registered mail, on the earlier of the other pN_afh` _RPRV\]a \\S Va N\[Q aUR seventh day
after mailing it.
21. DISPUTE RESOLUTION
21.1 In the event of a determination by either party in regard to a matter in dispute
between EPCOR and the Owner as to the interpretation or effect of any of the
terms or conditions of this Agreement, and where notice of such determination has
been delivered to EPCOR or the Owner, as the case may be, the determination
shall be conclusively deemed to have been accepted by the parties, unless, within
ten (10) days of the receipt of notice of the determination the party receiving the
\[\\aVPR TVcR` d_VaaR\[ \[\\aVPR a\\ aUR \\aUR_ \]N_af !aUR i Arbitration Notice j" \\S aURV_
desire to have the matter in dispute resolved by arbitration.
21.2 Within seven (7) days of receipt of the Arbitration Notice, the parties shall mutually
N\]\]\\V\[a N\[ N_OVa_Na\\_ !aUR i Arbitrator j"% In the event that the parties shall fail to
agree on the appointment of the Arbitrator, then either party may, on written notice
to the other, apply to the Ontario Superior Court of Justice for the appointment of
the Arbitrator, pursuant to the Arbitration Act, 1991, S.O. 1991, c. 17, as amended
!aUR i Arbitration Act j"%
21.3 The seat of arbitration shall be Kincardine, Ontario.
21.4 The Arbitrator shall be directed to make its determination on the basis of a
presumption that this Agreement does not require amendments. Any
determination of the Arbitrator shall include a determination as to payment of the
costs of the arbitration. The determination of the Arbitrator shall be final and
binding on the parties and there shall be no right to appeal of such decision to the
courts.
21.5 Except as modified by this Agreement, the provisions of the Arbitration Act and its
regulations or any successive legislation shall apply.
22. GENERAL
22.1 Entire Agreement
There are no conditions, either subsequent or precedent, except as stated in this
Agreement and in the letter of understanding between the Parties dated October
MMMM# )')' !aUR i LOU j". This Agreement and the LOU represent the entire
agreement between EPCOR and the Owner and no representations or warranties
have been made by EPCOR, except as stated in this Agreement and the LOU.
22.2 Governing Law
This Agreement shall be governed by and construed in accordance with the laws
in force in the Province of Ontario and the laws of Canada applicable therein.
22.3 Easement in Gross
The rights granted under this Agreement, including the Easement Rights, are
declared to be an easement in gross.
22.4 Further Assurances
The parties hereto will execute such further assurances of the Lands and the rights
granted under this Agreement as may be required.
22.5 Assignment
EPCOR shall, without the consent of the Owner, but upon seven (7) days prior
written notice, have the right to assign, in whole or in part, to any person,
partnership, trust, government, agency or corporation, the rights granted,
transferred and conveyed under this Agreement, including the Easement Rights,
provided that the assignee shall execute and deliver an assignment agreement in
a form to be provided by EPCOR, whereby the assignee agrees to assume and be
bound by the terms and conditions of this Agreement. Such notice shall include
the notice particulars as required by Clause 9.1.
22.6 3>1=@c\[ \]\[O XP :KWN\[
EPCOR shall, without the consent of the Owner, have the right to grant the right to
use the Lands, in whole or in part, in accordance with the terms and conditions
contained in this Agreement to any person, partnership, trust, government, agency
or corporation.
22.7 Enurement
This Agreement, including all covenants contained herein and all rights granted
hereunder, is and shall be of the same force and effect for all intents and purposes
as a covenant running with the Lands and shall extend to, be binding upon and
enure for the benefit of the heirs, executors, administrators, successors-in-title and
assigns of the parties respectively.
22.8 Severability
If any term or condition of this Agreement is invalid or unenforceable under any
applicable statute or is declared invalid or unenforceable by a court of competent
jurisdiction, then such term or condition shall be deemed to be severed from this
Agreement, provided however, that the remainder of this Agreement shall not be
affected, shall continue in full force and effect and each remaining term and
condition shall be valid and be enforced to the fullest extent permitted by law.
22.9 Additional Taxes
EPCOR agrees that no taxes, rates, assessments, charges, levies or impositions
of any kind or nature of any governmental authority. Including without limitation
property taxes on the pipeline, shall be payable by or placed upon the Owner in
relation to any use of the Lands by EPCOR pursuant to this Agreement, and if any
such taxes, rates, assessments, charges, levies or impositions shall be levied,
imposed, or placed, EPCOR shall make payment thereof. All taxes or
assessments in the nature of sales taxes, good and services taxes or value added
taxes which may be charged, levied or assessed as a result of this Agreement,
whether or not such taxes are charged, levied or assessed as against the Owner,
shall be the responsibility of EPCOR, and EPCOR shall on written demand by the
Owner, pay to the Owner any and all such taxes.
22.10 Outstanding Charges, Taxes, Liens, etc.
Notwithstanding any other provision in this Agreement, if EPCOR determines that:
(c) aUR_R N_R \\ba`aN\[QV\[T PUN_TR`# aNeR`# ObVYQR_`h YVR\[`# d_Va` \\S execution,
judgments or other encumbrances which are registered against the Lands;
or
(d) there are any overdue amounts outstanding under any agreement for sale,
mortgage or other financial encumbrance that is registered against the
Lands;
EPCOR may, but is not obligated to, pay all or a portion of the compensation or
other amounts payable under this Agreement to the holder of such charge, lien,
writ of execution, judgment, mortgage or other financial encumbrance, or to such
vendor or mortgagee to satisfy and discharge such encumbrance or to obtain a
postponement from the encumbrance holder. The payment of any amount to such
third party shall be deemed to be payment of such amount to the Owner. For
greater certainty, EPCOR shall not be required to \\OaNV\[ aUR Ad\[R_h` P\\\[`R\[a \]_V\\_
to making such payment. EPCOR shall provide to the Owner written confirmation
of any such payments within thirty (30) days of making such payments.
22.11 Sole Remedy
It is understood and agreed that notwithstanding any other provision in this
Agreement and notwithstanding any rights that any person having an interest may
have in law or in equity, should EPCOR fail to pay any payments payable
hereunder, the sole remedy of any such person having an interest shall be to
recover from EPCOR such amount and any interest payable thereon, and in no
event shall such person having an interest for whatever reason, interfere with,
hinder, molest or interrupt EPCOR in its enjoyment of any of the rights granted,
transferred and conveyed under this Agreement, including the Easement Rights.
22.12 Personal Information
The Owner consents to the collection and use of its personal information within
this Agreement. EPCOR collects this type of personal information for the purposes
of general land rights acquisition and regulatory disclosure. The Owner consents
to the collection, use and disclosure of its personal information for these legitimate
business purposes in relation to land matters of EPCOR. The Owner is a municipal
corporation incorporated pursuant to the Municipal Act, 2001, S.O. 2001, c. 25, as
amended and is subject to the Municipal Freedom of Information and Protection
of Privacy Act, R.S.O. 1990, c. M.56, as amended !i?;88B3j"% EPCOR agrees
that M;88B3 N\]\]YVR` a\\ NYY V\[S\\_ZNaV\\\[ \\_ _RP\\_Q` dVaUV\[ 7B5ACh` Pb`a\\Qf \\_
control that are collected or created specifically for the purposes of this Agreement.
22.13 Survival of Obligations
Any term or provision in this Agreement, which, in order to be given its fullest
intended effect, must extend past the expiration or termination of this Agreement
will survive the expiration or termination of this Agreement, including Articles 6, 7
and 10.
22.14 Insurance
Throughout the term of this Agreement, the Owner shall maintain in full force and
effect insurance coverage to the levels of a reasonable owner.
Throughout the term of this Agreement, EPCOR will maintain in full force and effect
the following insurance:
(d) Commercial General Liability insurance in an amount of not less than
$10,000,000.00 per occurrence for bodily injury including death and/or
property damage, which will include the following extensions: contractual
liability, non-owned automobile, products and completed operations,
broad form property damage, sudden and accidental pollution liability,
cross liability and/or severability of interest, contingent employerh` YVNOVYVaf#
and where applicable no exclusion for excavation, collapse, shoring and
underpinning; and
(e) Commercial Automobile Liability insurance covering all owned, leased or hired
licensed motor vehicles used in connection with the Lands with a combined
limit of not less than $10,000,000.00 per occurrence for bodily injury including
death and/or property damage.
(f)An environmental impairment liability policy with a limit of ten million dollars
($10,000,000) per occurrence to include the following:
!" physical damage to property including loss of use and the prevention,
control and clean-up of land, the atmosphere or any watercourse or body
of water;
" gradual or sudden and accidental pollution for events such as fire,
explosion or a sudden spill, as well as seepage over time; and
"! first and third-party clean-up expenses, bodily injury and property
damage arising from a pollution event.
All insurance policies required to be held by EPCOR under this Agreement:
(a) must provide the Owner with 30 days written notice of cancellation;
(b) where applicable, must be primary and not contributory with, or in excess
of, any other insurance carried by the Owner;
(c) may use primary and/or umbrella liability insurance to achieve required
limits; and
(d) EPCOR will be responsible for payment of all premiums and deductible
amounts relating to the insurance policies required to be held by EPCOR
under this Agreement.
22.15 Costs of Registration
Any costs related to the registration of document with the appropriate land registry
office shall be the sole responsibility of EPCOR.
22.16 Minor Changes for Reference Plan
The parties agree that the Agreement may be executed without completion of the
Reference Plan in Section 1.1 hereof. Upon completion of the Reference Plan, the
parties agree that this Agreement may be modified to include insertion of the
Reference Plan.
22.17 In this Agreement:
22.17.1 the word "shall" is to be read and interpreted as mandatory;
22.17.2 the word "may" is to be read and interpreted as permissive; and
22.17.3 the word "Owner" shall be read and interpreted as meaning an
individual, a partnership, a corporation, a trust, an unincorporated
organization, a government, or any department or agency thereof, and
the heirs, executors, administrators or other legal representatives of
any individual.
22.18 Counterparts
This Agreement may be executed in any number of counterparts and all of which
taken together will constitute one and the same instrument. All parties agree that
this Agreement may be transmitted by telecopier or electronic transmission via
email and that the reproduction of signatures by way of telecopier or electronic
transmission via email were executed originals will be treated as though such
reproduction were executed originals and each party undertakes to provide the
other with a copy of this Agreement bearing original signatures within a reasonable
time after written request therefore.
THE REMAINDER OF THIS PAGE IS LEFT INTENTIONALLY BLANK
IN WITNESS WHEREOF EPCOR AND THE OWNER HAVE EXECUTED THIS AGREEMENT
ON THE ___ DAY OF _____________________, 2020.
EPCOR: EPCOR NATURAL GAS LIMITED
PARTNERSHIP, by its general partner
EPCOR ONTARIO UTILITIES INC.
Per: _________________________ c/s
Name:
Position:
I have authority to bind the Corporation
OWNER: THE CORPORATION OF THE
MUNICIPALITY OF KINCARDINE
Per: __________________________
Anne Eadie, Mayor
Per: __________________________
Sharon Chambers, CAO
We have authority to bind the Corporation.
A1632C:3 d/e
LANDS