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2013-035 Agreement with Midhurst 4 ULCTHE CORPORATION OF THE TOWNSHIP OF ORO- MEDONTE By -Law No. 2013 -035 Being a By -Law to Authorize the Execution of an Agreement Between The Township of Oro - Medonte and Midhurst 4 ULC WHEREAS the Municipal Act, 2001, S.O. 2001, c.25, Section 224, as amended, states that it is the role of Council to ensure that administrative practices and procedures are in place to implement the decisions of Council; AND WHEREAS Council for The Corporation of the Township of Oro - Medonte declared, by Motion No. C130227 -11, to execute the Road User & Repair Security Agreement; AND WHEREAS Council deems it expedient to enter into an agreement with Midhurst 4 ULC; NOW THEREFORE the Council of the Township of Oro - Medonte hereby enacts as follows: 1. THAT the Mayor and Clerk be authorized to execute the Road User & Repair Security Agreement attached hereto as Schedule "A" and forming part of this By- Law. 2. THAT this by -law shall take effect on the final passing thereof. BY -LAW READ A FIRST, SECOND AND THIRD TIME, AND PASSED THIS 27TH DAY OF MARCH, 2013. THE PORATION OF THE TOWNSHIP OF ORO- MEDONTE k, J. Cptfg'lAs Irwin ROAD USER & REPAIR SECURITY AGREEMENT THIS AGREEMENT (the "Agreement") is made as of the;1day of c 2013 (the "Effective Date") BETWEEN: RE Midhurst 4 ULC, an Unlimited Liability Corporation formed pursuant to the laws of the Province of Nova Scotia (hereinafter called the "Developer") -And- THE TOWNSHIP OF Oro - Medonte (hereinafter called the "Township ") OF THE FIRST PART OF THE SECOND PART WHEREAS the Developer has entered into a Feed -In Tariff Contract _ . 2010 (the "Supply Contract ") with the Ontario Power Authority for the supply of electricity from a proposed commercial solar energy generating facility (the "Project") to be located on lands and premises within the Township, which lands and premises are more particularly described in EXHIBIT A attached hereto (the "Property"); AND WHEREAS the Township desires to recover certain road repair expenses that may be incurred by virtue of the Project and the Developer desires to contribute to such reasonable expenses that are attributable to the Project; NOW THEREFORE in consideration of the mutual covenants and agreements contained herein and other good and valuable consideration, the Township and the Developer (the "Parties ") agree with each other as fol lows: AGREEMENT 1. Township Development Expenses. The Township has informed Developer that, by virtue of the development of the Project by Developer, the Township may incur certain expenses related to road repair, including but not limited to roads and railroad crossings, due to the development of the Project (collectively, the "Township Development Expenses "). 2. Developer Payment Obligations. The Developer agrees to remit to the Township the amount of TEN THOUSAND CAD ($10,000) (the "Road User's Repair Security"), by way of certified cheque, forthwith upon execution of this Agreement, which amount shall be deposited with the Township to reimburse the cost of any and all damage to the Township roads attributed to the Developer, its contractors or agents. Error! Unknown document property name. Errorl Unknown document property name. -2- 3. Together with the Road User's Repair Security, the Developer shall provide the Township with a transportation plan for the Project, which shall include the route that the Developer, its contractors and agents will be taking to access the Property, with all roads clearly identified and marked on such transportation plan. 4. The Developer shall notify the Township no later than fifteen days prior to the date the Developer, its contractors and agents will begin to access the Property and utilize the route identified in section 3, above. 5. Upon receipt of the Road User's Repair Security and transportation plan, the Township shall conduct a Baseline Assessment of the roads identified as part of the Project site access route. The Township shall, at its own discretion, conduct a survey of all °such roads, based on video evidence taken prior to the commencement of Project construction by the Developer, its contractors or agents. The Developer shall pay the Township's costs of conducting video evidence. The Township shall notify the Developer as to the date upon which the video evidence will be collected and the Developer may be in attendance along with Township representatives when the video evidence is collected. f.. The Developer shall notify the Township immediately upon reaching the date on which commercial operation of the Project is attained, within the meaning of the Supply Contract (the "Commercial Operation Date "). Within 90 days of being notified of the Commercial Operation Date, the Township shall complete an inspection of the roads identified as part of the Project site access route and shall note any damages or items which require repair (the "Damages Assessment "). The Township shall notify the Developer as to the date upon which the inspection of the roads described will take place and the Developer may be in attendance along with Township representatives when the inspection of the roads takes place. The Township shall then forthwith notify the Developer of the results of the Damages Assessment. 7. If no damages to the roads set out on the route identified in section 3, above, are attributable to the Developer, its contractors or agents, the Road User's Security shall be refunded to the Developer, without interest. 8. If the Township determines that any damages are attributable to the Developer, its contractors or agents, the Township may draw upon the Road User's Security to satisfy the cost of repair of such damages. If the cost to repair such damages, the Township shall carry out, or cause to carry out, the work required to repair such damages. If the cost to repair any damages, attributable to the Developer, its contractors or agents is less than $10,000, the Township will process a refund to the Developer no later than thirty (30) days following the calculation by the Township of the total and final cost of the repairs for damages attributable to the Developer, its contractors or agents. If the cost to repair any damages, attributable to the Developer, its contractor or agents is more than $10,000, the Township will send an invoice to the Developer for those costs more than $10,000, which invoice the Developer shall pay within thirty (30) days of receipt of such invoice. 9. Dispute Resolution. If the Parties cannot agree as to the any aspect of damage the Township determines is attributable to the roads identified on route set out in section 3, above, either party may commence a mediation proceeding by giving notice in writing to the other parry. Once a notice of mediation has been served by either party, the Parties shall work together to choose a mediator with experience in road construction, repair and /or road engineering matters, who shall commence a Error! Unknown document properly name. Error! Unknown document property name. -3- mediation within thirty (30) days of being appointed by the Parties. if the dispute cannot be settled by mediation, the provisions of the Arbitration Act, 1991,5.0. 2001, c. 17. 10. Expiration Date. If the Commercial Operation Date does not occur within five (5) years of the Effective Date, this Agreement shall terminate and be deemed to be null and void and of no further force or effect and the Township shall return the Road User's Security to the Developer, without Interest. 11. Notice. All invoices, notices and communications to the Developer in connection with this Agreement shall be addressed to: RE Midhurst 4 ULC Attention: Mr. Bob Leah 300 California Street, 7th Floor San Francisco, CA 94104 Telephone: 312- 268 -6851 Facsimile: 416- 971 -5672 Email: bob.leah @recurrentenergy.com with a copy to: RE Midhurst 4 ULC Office of the General Counsel 300 California Street, 7th Floor San Francisco, CA 94104 All invoices, notices, and communications to the Township in connection with this Agreement shall be addressed to: The Township of Oro - Medonte Attention: Chief Building Official 148 Line 7 S Box 100 Oro, Ontario, LOL 2X0 Telephone: 705 -487 -2171 Facsimile: 705-487-0133 With a copy to the attention of the Township Clerk, at the same address and facsimile number Notices sent by facsimile shall be deemed delivered on the day that they are sent by facsimile, with proof of successful facsimile transmission. 12. Amendments. No amendment to this Agreement shall be permitted, except by the written mutual consent of both Parties, and any amendment shall be in writing. 13. Entire agreement. This Agreement constitutes the entire agreement or understanding between the Parties with respect to the subject matter hereof and supersedes all prior negotiations and Error! Unknown document property name. Errorl Unknown document property name. -4- documents in relation thereto, and each Party acknowledges that there are no collateral representations or warranties made by either in respect of the subject matter of this Agreement. 14. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, and all of which together shall constitute a single instrument. IN WITNESS WHEREOF this Agreement has been executed by the Parties under seal by their authorized signing officers to be effective as of the date first set out above. THE TOWNSHIP Of Oro- Medonte _ RE Midhurst 4 ULC !Name: Harry°Hughes, May r Name: Sheldon or Title: Title: Vice President Per: - Witness Name: J. D u as I eygYJ ` c)s< Title: Cier I have authority to bind the Corporation. Errorl Unknown document property name. Errorl Unknown document property name. -s- EXHIBIT A LEGAL DESCRIPTION OF THE PROPERTY Site Name Company Legal Description RE Midhurst 4 RE Midhurst 4 ULC Part of Lot 20, Concession 6 ORO, designated as Part 1 on Plan 51R- 16497, Oro - Medonte, being PIN 58546- 0024 (LT) Error! Unknown document properly name. Error! Unknown document properly name.