HomeMy WebLinkAboutBy-law 6981/09
THE CORPORATION OF THE CITY OF PICKERING
BY-LAW NO. 6981/09
A by-law to authorize a Franchise Agreement
between The Corporation of the City of Pickering (the "City")
and Enbridge Gas Distribution Inc.
WHEREAS the Council of The Corporation of the City of Pickering deems it expedient
to enter into the attached franchise agreement with Enbridge Gas Distribution Inc.;
AND WHEREAS the Ontario Energy Board by its Order issued pursuant to the
Municipal Franchises Act on the 10th day of July, 2009 has approved the terms and
conditions upon which and the period for which the franchise provided for in the
attached agreement is proposed to be granted, and has declared and directed that the
assent of the municipal electors in respect of this By-law is not necessary;
NOW THEREFORE THE COUNCIL OF THE CORPORATION OF THE CITY OF
PICKERING ENACTS AS FOLLOWS:
1. That the attached franchise agreement between the City and Enbridge Gas
Distribution Inc. is hereby authorized and the franchise provided for therein is
hereby granted.
2. That the Mayor and the City Clerk are hereby authorized and instructed on behalf
of the City to enter into and execute under its corporate seal and deliver the
aforesaid agreement, which agreement is hereby incorporated into and shall form
part of this By-law.
BY-LAW read a first, second and third time and finally passed this 21St day of
September, 2009.
David or
i ,c^
Debi A. Wilcox, City Clerk
Model Franchise Agreement
THIS AGREEMENT effective this day of , 20
BETWEEN: The Corporation of the City of Pickering hereinafter called the
"Corporation"
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Enbridge Gas Distribution Inc. hereinafter called the "Gas Company"
WHEREAS the Gas Company desires to distribute, store and transmit gas in the
Municipality upon the terms and conditions of this Agreement;
AND WHEREAS by by-law passed by the Council of the Corporation (the
"By-law"), the duly authorized officers 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
Part I - Definitions
1. In this Agreement:
a. "decommissioned" and "decommissions" when used in connection with
parts of the gas system, mean any parts of the gas system taken out of
active use and purged in accordance with the applicable CSA
standards and in no way affects the use of the term 'abandoned'
pipeline for the purposes of the Assessment Act;
b. "Engineer/Road Superintendent" means the most senior individual
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
Council of the Corporation;
c. "gas" 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;
d. "gas system" means such mains, plants, pipes, conduits, services,
valves, regulators, curb boxes, stations, drips or such other equipment
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as the Gas Company may require or deem desirable for the
distribution, storage and transmission of gas in or through the
Municipality;
e. "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 forming part of the road allowance now
or at any time during the term hereof under the jurisdiction of the
Corporation;
f. "Model Franchise Agreement" means the form of agreement which the
Ontario Energy Board uses as a standard when considering
applications under the Municipal Franchises Act. The Model Franchise
Agreement may be changed from time to time by the Ontario Energy
Board;
g. "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;
h. "Plan" means the plan described in Paragraph 5 of this Agreement
required to be filed by the Gas Company with the Engineer/Road
Superintendent prior to commencement of work on the gas system;
and
i. whenever the singular, masculine or feminine is used in this
Agreement, it shall be considered as if the plural, feminine or
masculine has been used where the context of the Agreement so
requires.
Part II - Rights Granted
2. To provide gas service:
The consent of the Corporation is hereby given and granted to the Gas
Company to distribute, store and transmit gas in and through the
Municipality to the Corporation and to the inhabitants of the Municipality.
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i
3. To Use Highways.
Subject to the terms and conditions of this Agreement 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 distribution, storage and transmission of gas in
and through the Municipality.
4. Duration of Agreement and Renewal Procedures.
a. If the Corporation has not previously received gas distribution services,
the rights hereby given and granted shall be for a term of 20 years
from the date of final passing of the By-law.
or
b. If the Corporation has previously received gas distribution services, the
rights hereby given and granted shall be for a term of 20 years from
the date of final passing of the By-law provided that, if during the 20-
year term this agreement, the Model Franchise Agreement is changed,
then on the 7th anniversary and on the 14th anniversary of the date of
the passing of the By-law, this Agreement shall be deemed to be
amended to incorporate any changes in the Model Franchise
Agreement in effect on such anniversary dates. Such deemed
amendments shall not apply to alter the 20-year term.
c. At any time within two 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. This shall not preclude either party
from applying to the Ontario Energy Board for a renewal of the
Agreement pursuant to section 10 of the Municipal Franchises Act.
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I
Part III - Conditions
5. Approval of Construction
a. The Gas Company shall not undertake any excavation, opening or
work which will disturb or interfere with the surface of the travelled
portion of any highway unless a permit therefor has first been obtained
from the Engineer/Road Superintendent and all work done by the Gas
Company shall be to his satisfaction.
b. Prior to the commencement of work on the gas system, or any
extensions or changes to it (except service 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 locations involved, showing
the highways in which it proposes to lay its gas system and the
particular parts thereof it proposes to occupy.
c. The Plan filed by the Gas Company shall include geodetic information
for a particular location:
L where circumstances are complex, in order to facilitate known
projects, including projects which are reasonably anticipated by
the Engineer/Road Superintendent, or
ii. when requested, where the Corporation has geodetic information
for its own services and all others at the same location.
d. The Engineer/Road Superintendent may require sections of the gas
system to be laid at greater depth than required by the latest CSA
standard for gas pipeline systems to facilitate known projects or to
correct known highway deficiencies.
e. Prior to the commencement of work on the gas system, the
Engineer/Road Superintendent must approve the location of the work
as shown on the Plan filed by the Gas Company, the timing of the work
and any terms and conditions relating to the installation of the work.
f. In addition to the requirements of this Agreement, if the Gas Company
proposes to affix any part of the gas system to a bridge, viaduct or
other structure, if the Engineer/Road Superintendent approves this
proposal, he may require the Gas Company to comply with special
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conditions or to enter into a separate agreement as a condition of the
approval of this part of the construction of the gas system.
g. Where the gas system may affect a municipal drain, the Gas Company
shall also file a copy of the Plan with the Corporation's Drainage
Superintendent for purposes of the Drainage Act, or such other person
designated by the Corporation as responsible for the drain.
h. 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.
i. The Engineer/Road Superintendent's approval, where required
throughout this Paragraph, shall not be unreasonably withheld.
j. The approval of the Engineer/Road Superintendent is not a
representation or warranty as to the state of repair of the highway or
the suitability of the highway for the gas system.
6. As Built Drawings
The Gas Company shall, within six months of completing the installation of
any part of the gas system, provide two copies of "as built" drawings to the
Engineer/Road Superintendent. These drawings must be sufficient to
accurately establish the location, depth (measurement between the top of
the gas system and the ground surface at the time of installation) and
distance of the gas system. The "as built" drawings shall be of the same
quality as the Plan and, if the approved pre-construction plan included
elevations that were geodetically referenced, the "as built" drawings shall
similarly include elevations that are geodetically referenced. Upon the
request of the Engineer/Road Superintendent, the Gas Company shall
provide one copy of the drawings in an electronic format and one copy as a
hard copy drawing.
7. Emergencies
In the event of an emergency involving the gas system, the Gas Company
shall proceed with the work required to deal with the emergency, and in any
instance where prior approval of the Engineer/Road Superintendent is
normally required for the work, the Gas Company 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, fire or other emergency services having
jurisdiction. The Gas Company shall provide the Engineer/Road
Superintendent with at least one 24 hour emergency contact for the Gas
Company and shall ensure the contacts are current.
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8. Restoration
The Gas Company shall well and sufficiently restore, to the reasonable
satisfaction of the Engineer/Road Superintendent, all highways, municipal
works or improvements which it may excavate or interfere with in the 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 the Corporation's reasonably incurred costs, as certified by the
Engineer/Road Superintendent.
9. 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 negligence or
wrongful act of the Corporation, its servants, agents or employees.
10. Insurance
a. The Gas Company shall maintain Comprehensive General Liability
Insurance in sufficient amount and description as shall protect the Gas
Company and the Corporation from claims for which the Gas Company
is obliged to indemnify the Corporation under Paragraph 9. The
insurance policy shall identify the Corporation as an additional named
insured, but only with respect to the operation of the named insured
(the Gas Company). The insurance policy shall not lapse or be
cancelled without sixty (60) days' prior written notice to the Corporation
by the Gas Company.
b. The issuance of an insurance policy as provided in this Paragraph
shall not be construed as relieving the Gas Company of liability not
covered by such insurance or in excess of the policy limits of such
insurance.
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c. Upon request by the Corporation, the Gas Company shall confirm that
premiums for such insurance have been paid and that such insurance
is in full force and effect.
11. 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 proposed sale or closing
and, if is feasible, to provide 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 and the Gas Company shall share the cost of relocating or
altering the gas system to facilitate continuity of gas service, as provided for
in Paragraph 12 of this Agreement.
12. Pipeline Relocation
a. 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.
b. Where any part of the gas system relocated in accordance with this
Paragraph is located on a bridge, viaduct or structure, the Gas
Company shall alter or relocate that part of the gas system at its sole
expense.
c. Where any part of the gas system relocated in accordance with this
Paragraph is located other than on a bridge, viaduct or structure, the
costs 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:
L 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,
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ii. 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,
iii. the amount paid by the Gas Company to contractors for work
related to the project,
iv. the cost to the Gas Company for materials used in connection
with the project, and
v. a reasonable amount for project engineering and project
administrative costs which shall be 22.5% of the aggregate of the
amounts determined in items (i), (ii), (iii) and (iv) above.
d. The total relocation costs as calculated above shall be paid 35% by the
Corporation and 65% by the Gas Company, except where the part of
the gas system required to be moved is located in an unassumed road
or in an unopened road allowance and the Corporation has not
approved its location, in which case the Gas Company shall pay 100%
of the relocation costs.
Part IV - Procedural And Other Matters
13. Municipal By-laws of General Application
The Agreement is subject to the provisions of all regulating statutes and all
municipal by-laws of general application, except by-laws which have the
effect of amending this Agreement.
14. Giving Notice
Notices may be delivered to, sent by facsimile or mailed by prepaid
registered post to the Gas Company at its head office or to the authorized
officers of the Corporation at its municipal offices, as the case may be.
15. Disposition of Gas System
a. If the Gas Company decommissions part of its gas system affixed to a
bridge, viaduct or structure, the Gas Company shall, at its sole
expense, remove the part of its gas system affixed to the bridge, viaduct
or structure.
b. If the Gas Company decommissions any other part of its gas system, it
shall have the right, but is not required, to remove that part of its gas
system. It may exercise its right to remove the decommissioned parts of
its gas system by giving notice of its intention to do so by filing a Plan
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as required by Paragraph 5 of this Agreement for approval by the
Engineer/Road Superintendent. If the Gas Company does not remove
the part of the gas system it has decommissioned and the Corporation
requires the removal of all or any part of the decommissioned 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
decommissioned 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. If the Gas
Company has not removed the part of the gas system it has
decommissioned and the Corporation requires the removal of all or any
part of the decommissioned gas system for the purpose of altering or
improving a highway or in order to facilitate the construction of utility or
other works in a highway, the Gas Company may elect to relocate the
decommissioned gas system and in that event Paragraph 12 applies to
the cost of relocation.
16. Use of Decommissioned Gas System
a. The Gas Company shall provide promptly to the Corporation, to the
extent such information is known:
L the names and addresses of all third parties who use
decommissioned parts of the gas system for purposes other than
the transmission or distribution of gas; and
ii. the location of all proposed and existing decommissioned parts of
the gas system used for purposes other than the transmission or
distribution of gas.
b. The Gas Company may allow a third party to use a decommissioned
part of the gas system for purposes other than the transmission or
distribution of gas and may charge a fee for that third party use,
provided
i. the third party has entered into a municipal access agreement
with the Corporation; and
ii. the Gas Company does not charge a fee for the third party's right
of access to the highways.
c. Decommissioned parts of the gas system used for purposes other than
the transmission or distribution of gas are not subject to the provisions
of this Agreement. For decommissioned parts of the gas system used
for purposes other than the transmission and distribution of gas, issues
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such as relocation costs will be governed by the relevant municipal
access agreement.
17. Franchise Handbook
The Parties acknowledge that operating decisions sometimes require a
greater level of detail than that which is appropriately included in this
Agreement. The Parties agree to look for guidance on such matters to the
Franchise Handbook prepared by the Association of Municipalities of
Ontario and the gas utility companies, as may be amended from time to
time.
18. Agreement Binding Parties
This Agreement shall extend to, benefit and bind the parties thereto, their
successors and assigns, respectively.
IN WITNESS WHEREOF the parties have executed this Agreement effective
from the date written above.
THE CORPORATION OF THE CITY OF ICKERING
By:
C
By: 1
C-1~E121L,
Duly Authorized Officer C-1 7-Y
ENBRIDGE GAS DISTRIBUTION INC.
By: )4-0 APPROVED tm ra
AS TO FORM Vic resident, nergy Supply,
Drags Development & Regulatory
LEGAL
B\/: 1
J Mark R. Boyce
Vice President, Gas Distribution Law
& Deputy General Counsel
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