89-32
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COUNTY OF ELGIN
By-Law No. 89-32
"BEING A BY-LAW TO AUTHORIZE THE WARDEN AND THE CLERK TO SIGN A
FRANCHISE AGREEMENT WITH NATURAL RESOURCE GAS LIMITED."
WHEREAS Natural Resource Gas Limited desires to distri-
bute and sell gas within the County of Elgin; and
WHEREAS the Gas Company has requested the Corporation
of the County of Elgin, to grant to it a franchise or right to
use road allowances, now or at any time during the term hereof
under the jurisdiction of the County for the purpose of laying,
constructing, maintaining, replacing, removing, operating and
repairing a gas system for the supply, distribution and transmis-
sion of gas in and through the County; and
WHEREAS the terms and conditions as stipulated in a
franchise agreement are acceptable to the County.
NOW THEREFORE the Municipal Council of the Corporation
of the County of Elgin enacts as follows:
1. That the Warden and the Clerk are hereby authorized to
execute a franchise agreement between the Corporation of the
County of Elgin and Natural Resource Gas Limited for the purpose
of laying, çonstructing, maintaining, replacing, removing, oper-
ating and repairing a gas system for the supply, distribution and
transmission of gas in and through the County.
READ a first time this 21st day of June, 1989.
READ a second time this 21st day of June, 1989.
READ a third time and finally passed this 21st day of June 1989
d~ ;C,
A. K. Ford
Warden
duplicate this day of A.D
BETWEEN :
THE CORPORATION OF, THE COUNTY OF ELGIN
hereinafter called "the Corporation"
OF THE FIRST PART
- and -
NATURAL RESOURCE GAS LIMITED
hereinafter called the "Gas Company"
OF THE SECOND PART
WHEREAS the Gas Company desires to distribute and sell gas in the
Municipality upon the terms and conditions of this Agreement; and
WHEREAS by by-law passed by the Municipal Council of the Corporation (the
IIBy-Law" ) , the Warden and the Clerk have been authorized and directed to
execute this Agreement on behalf of the Corporation;
THEREFORE the Corporation and the Gas Company agree as follows:
I DEFINITIONS
1 In this Agreement:
(a) "gas 11 means natural gas, manufactured gas, synthetic natural
gas, liquefied petroleum gas or propane-air gas, or a mixture
of any of them, but does not include a liquefied petroleum gas
that is distributed by means other than a pipeline;
(b) IIgas system" means such mains, plants, pipes, conduits,
services, valves, regulators, curb boxes, stations, drips or
such other equipment as the Gas Company may require or deem
desirable for the supply, transmission and distribution of gas
in or through the Municipality;
:c "highway" means all common and public highways and shall
include any bridge, viaduct or structure forming part of a
highway, and any public square, road allowance or walkway and
shall include not only the travelled portion of such highway,
but also ditches, driveways, sidewalks, and sodded areas
formin<?¡ part of the road allowance now or at any time during
the term hereof under the jurisdiction of the Corporation;
d "Municipality" means the territorial limits of the Corporation
on the date when this Agreement takes effect, and any territory
which may thereafter be brought within the jurisdiction of the
Corporation
c.m~~f
meäilsthe mÒst seniÖr indivídual
employed by the Corporation with responsibilities for highways
within the Municipality or the person designated by such senior
employee or such other person as may from time to time be
designated by the Municipal Council of the Corporation.
II RIGHTS GRANTED
1. To use road allowances
The consent of the Corporation is hereby given and granted to the
Gas Company to enter upon all highways now or at any time hereafter
under the jurisdiction of the Corporation and to lay, construct,
maintain, replace, remove, operate and repair a gas system for the
supply, distribution and transmission of gas in and through the
Municipality.
2. Duration of Agreement and Renewal Procedures
The rights hereby given and granted shall be for a term of twenty
(20 ) years from the date of final passing of the By-Law. At any
time within two (2 ) years prior to the expiration of this Agreement,
either Party may give notice to the other that it desires to enter
into negotiations for a renewed franchise upon such terms and
conditions as may be agreed upon. Until such renewal has been
settled, the terms and conditions of this Agreement shall continue,
notwithstanding the expiration of this Agreement. Nothing herein
stated shall preclude either party from applying to the Ontario
Energy Board for a renewal of the Agreement pursuant to Section ro
of the Municipal Franchises Act.
III. CONDITIONS
1 Approval of Construction
Before beginning construction of or any extension or change to the
gas system (except serviée laterals which do not interfere with
municipal works in the highway), the Gas Company shall file with the
Engineer/Road Superintendent a plan, satisfactory to the Engineer/
Road Superintendent, drawn to scale and of sufficient detail
considering the complexity of the specific location, showing the
highways in which it proposes to lay its gas system and the particu-
lar parts thereof it proposes to occupy. Geodetic information will
not be required except in complex urban intersections in order to
3
facilitate known projects being projects which are reasonably
anticipated by the Engineer/Road Superintendent. The Engineer/Road
Superintendent may require sections of the gas system to be laid at
a greater depth than required by CAN/CSA-Z184-M86 to facilitate
known projects. The 10cation of the work as shown on the said plan
must be approved by the Engineèr/Road Superintendent before the
commencement of the work and the timing, terms and conditions relat-
ing to the installation of such works shall be to his satisfaction.
Notwithstanding the provisions of the above-noted paragraph, in thè
event it is proposed to affix a part of the gas system to a bridge,
viaduct or structure, the Engineer/Road Superintendent may, if the
Engineer/Road Superintendent approves of such location, require
special conditions or a separate agréement.
No excavation, opening or work which shall disturb or interfere with
the surface of the travelled portion of any highway shall be made or
done unless a permit therefore has first been obtained from the
Engineer/Road Superintendent and all works shall be done to his
satisfaction.
The Engineer/Road Superintendent's approval, where required through-
out this section, shall not be withheld unreasonably.
2. As Built Drawings
The Gas Company shall not deviate from the approved location for any
part of the gas system unless the prior approval of the Engineer/
Road Superintendent to do so is received. After completion of the
construction, where plans were initially filed, an lias built" plan
of equal quality to the pre-construction plan or certification that
the pre-construction plan is "as built" will be filed with the
Engineer/Road Superintendent.
3. Emergencies
In the event of any emergency involving the gas system, the Gas
Company will proceed with the work and in any instance where prior
approval of the Engineer/Road Superintendent is normally required,
shall use its best efforts to immediately notify the Engineer/Road
Superintendent of the location and nature of the emergency and the
work being done and, if it deems appropriate notify the police
force having jurisdiction
4 Restoration
The Gas Company shall well and sufficiently restore to the reason-
able satisfaction of the Engineer/Road Superintendent, all high'J'lays,
municipal works or improvements which it may excavate or interfere
with in t,he course of laying, constructing, repairing or removing
its gas system, and shall make good any settling or subsidence
thereafter caused by such excavation or interference. If the Gas
Company fails at any time to do any work required by this Paragraph
within a reasonable period of time, the Corporation may do or cause
such work to be done and the Gas Company shall, on demand, pay any
reasonable account therefore as certified by the Engineer/Road
Superintendent.
5. Indemnification
The Gas Company shall, at all times, indemnify and save harmless the
Corporation from and against all claims, including costs related
thereto, for all damages or injuries including death to any person
or persons and for damage to any property, arising out of the Gas
Company operating, constructing, and maintaining its gas system in
the Municipality, or utilizing its gas system for the carriage of
gas owned by others. Provided that the Gas Company shall not be
required to indemnify or save harmless the Corporation from and
against claims, including costs related thereto, which it may incur
by reason of damages or injuries including death to any person or
persons and for damage to any property, resulting from the negli-
gence or wrongful act of the Corporation, its servants, agents or
employees.
6 Alternative Easement
The Corporation agrees, in the event of the proposed sale or closing
of any highway or any part of a highway where there is a gas line in
existence, to give the Gas Company reasonable notice of such pro-
posed sale or closing and to provide, if it is feasible, the Gas
Company with easements over that part of the highway proposed to be
sold or closed sufficient to allow the Gas Company to preserve any
part of the gas system in its then existing location. In the event
that such easements cannot be provided, the Corporation will share,
as provided in Clause III-7 of this Agreement, in the cost of
relocating or altering the gas system to facilitate continuity of
gas service
5 ffiiit,,,, . .p "-~o_'''11
7 . Pipeline Relocation
If in the course of constructing reconstructing changing, altering
or improving any highway or any municipal works, the Corporation
deems that it is necessary to take up, remove or change the location
of any part of the gas system, the Gas Company shall, upon notice to
do so, remove and/or relocate within a reasonable period of time
such part of the gas system to a location approved by the Engineer/
Road Superintendent.
Where any part of the gas system relocated in accordance with this
Section is located on a bridge, viaduct or structure, the Gas
Company shall alter or relocate, at its sole expense, such part of
the gas system.
Where any part of the gas system relocated in accordance with this
Section is located other than on a bridge, viaduct or structure, the
cost of relocation shall be shared between the Corporation and the
Gas Company on the basis of the total relocation costs, excluding
the value of any upgrading of the gas system, and deducting any
contribution paid to the Gas Company by others in respect to such
relocation; and for these purposes, the total relocation costs shall
be the aggregate of the following:
( a) the amount paid to Gas Company employees up to and including
field supervisors for the hours worked on the project plus the
current cost of fringe benefits for these employees,
(b) the amount paid for rental equipment while in use on the
project and an amount, charged at the unit rate, for Gas
Company equipment while in use on the project,
(c) the amount paid by the Gas Company to contractors for work
related to the project,
(d) the cost to the Gas Company for materials used in connection
with the project, ando
(e) a reasonable amount for project engineering and project
administrative costs which shall be 22.5% of the aggregate of
the amounts determined in items (a) , (b) , (c) and (d) above.
The total relocation costs as calculated above shall be paid 35% by
the Corporation and 65% by the Gas Company
1 ·tI,~~
" ·d-'
6
8 Notice to Drainage Superintendent
In a case where the gas system may affect a munic~pal drain the Gas
çompany shall file with the Drainage Superintendent, for the purpose
of the Drainage Act, or other person responsible for the drain, a
copy of the plan required to be filed with the Engineer/Road
Superintendent.
9 Other Conditions
Notwithstanding the cost sharing arrangements described in Paragraph
111-7, if any part of the gas system altered or relocated in accord-
ance with Paragraph 111-7 was constructed or installed prior to
January 1st, 1981, the Gas Company shall alter or relocate, at its
sole expense, such part of the gas system at the point specified, to
a location satisfactory to the Engineer/Road Superintendent.
Municipal cost sharing for relocations requested by the Corporation
involving any part of the gaS system installed on or after January
1st, 1981 shall be phased-in as follows for projects completed:
( i) Between May 21st, 1989 and May 20th, 1990, the Corporation
shall bear 20% of the total relocation costs.
( ii) Between May 21st, 1990 and May 20th, 1991, the Corporation
shall bear 25% of the total relocation costs.
( iii) Between May 21st, 1991 and May 20th, 1992 , the Corporation
shall bear 30% of the total relocation costs.
(iv) On and after May 21st, 1992, Paragraph 111-7 herein applies.
IV. PROÇEDURAL AND OTHER MATTERS
1 Municipal By-Laws of General Application
This agreement and the respective rights and obligations hereunto of
the parties hereto are hereby declared to be subject to the
provisions of all regulating statutes and all municipal by-laws of
general application and to all orders and regulations made
thereunder from time to time remaining in effect save and except by-
laws which impose permit fees and by-laws which have the effect of
amending this Agreement.
2 Giving Notice
Notices may be given by delivery or by mail, and if mailed, by
prepaid registered post, to the Gas Company at its head office or to
the Clerk of the Corporation at its municipal offices as the case
may be
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7
3 Disposition of Gas System
During the term of this Agreement, if the Gas Company abandons a
part of its gas s~stemáffixed to a bridge, viaduct or structure,
the Gas Company shall, at its sole expense, remove that part of its
gas system affixed to the bridge, viaduct or structure.
If at any time the Gas Company abandons any other part of its gas
system, it shall deactivate that part of its gas system in the
Municipality. Thereafter, the Gas Company shall have the right, but
nothing herein contained shall require it, to remove its gas system.
If the Gas Company fails to remove its gas system and the
Corporation requires the removal of all or any of the gas system for
the purpose of altering or improving a highway or in order to
facilitate the construction of utility or other works in any
highway, the Corporation may remove and dispose of so much of the
deactivated gas system as the Corporation may require for such
purposes and neither party shall have recourse against the other for
any loss, cost, expense or damage occasioned thereby.
4 Agreement Binding Parties
This Agreement shall extend to, benefit and bind the Parties
thereto, their successors and assigns, respectively.
IN WITNESS WHEREOF the Parties hereto have duly executed these presents
with effect from the date first above written.
THE CORPORATION OF THE COUNTY OF ELGIN
Warden
Clerk
NATURAL RESOURCE GAS LIMITED
President