10. GAS FRANCHISE
AGREEMENT
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COMMITTEE
RECOMMENDATIONS
That Council:
1. Approve the draft by-law, in the general form of that
attached as Attachment 1 to this report, to be enacted following Ontario Energy
Board (OEB) approval;
2. Approve the draft franchise agreement, in the general form
of that attached as Attachment 2 to this report (which will become Schedule A
to the draft by-law);
3. Approve the submission of the By-law, including the
Franchise Agreement, by Enbridge to the OEB for approval pursuant to the
provisions of the Municipal Franchises Act;
4. Request the Ontario Energy Board make an order to dispense
with the assent of the municipal electors of the attached draft By-law pursuant
to the provisions of Subsection 9(4) of the Municipal Franchises Act;
5. Accept from Enbridge a payment of $150,502.50 representing
total and final settlement of the disputed 2001 Road Cut permit fees.
RECOMMENDATIONS
DU COMITÉ
Que le Conseil :
1. approuve le règlement provisoire,
dans la forme générale de l’annexe « 1 » ci-jointe, qui doit être
promulgué par suite de l’approbation de la Commission
de l'énergie de l'Ontario;
2. approuve l’entente provisoire de
concession, dans la forme générale de
l’annexe « 2 » ci-jointe (qui deviendra une annexe au
règlement provisoire);
3. approuve la présentation du règlement
et de l’entente de concession faite par Enbridge à la CÉO aux fins
d’approbation, conformément aux dispositions de la Loi sur les concessions
municipales;
4. demande à la Commission de l'énergie de l'Ontario de prendre un arrêté
d’administration, avec l’accord des électeurs municipaux, du règlement
provisoire ci-joint, conformément aux dispositions du paragraphe 9(4) de la Loi
sur les concessions municipales;
5. accepte un paiement d’Enbridge d’un
montant de 150 502,50 $ représentant le règlement total et définitif
des droits contestés de permis de terrassement de 2001.
DOCUMENTATION
1.
Public Works and Services, A/Deputy City
Manager’s report dated 17 May 2006
(ACS2006-PWS-INF-0003).
Corporate Services and Economic Development Committee
Comité des services
organisationnels et du développement économique
17 May 2006 / le 17 mai 2006
Submitted by/Soumis par: R. G.
Hewitt,
Acting Deputy City Manager/Directeur municipal adjoint par intérim,
Public Works and Services/Services et Travaux Publics
Contact
Person/Personne-ressource : W.R. Newell, P.Eng.,
Acting
Director, Infrastructure Services/Directeur par intérim, Services
d'infrastructure,
(613)
580-2424, extension/poste 16002, wayne.newell@ottawa.ca
City Wide |
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Ref N°: ACS2006- PWS-INF-0003 |
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SUBJECT: |
Gas
Franchise Agreement
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OBJET: |
ENTENTE
DE CONCESSION DE GAZ |
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REPORT
RECOMMENDATIONS
That
the Corporate Services and Economic Development Committee recommend Council:
1. Approve the draft by-law, in the general form of that
attached as Attachment 1 to this report, to be enacted following Ontario Energy
Board (OEB) approval;
2. Approve
the draft franchise agreement, in the general form of that attached as
Attachment 2 to this report (which will become Schedule A to the draft by-law);
3. Approve
the submission of the By-law, including the Franchise Agreement, by Enbridge to
the OEB for approval pursuant to the provisions of the Municipal Franchises
Act;
4. Request
the Ontario Energy Board make an order to dispense with the assent of the
municipal electors of the attached draft By-law pursuant to the provisions of
Subsection 9(4) of the Municipal Franchises Act;
5. Accept from Enbridge a payment of $150,502.50 representing
total and final settlement of the disputed 2001 Road Cut permit fees.
Que le Comité des services
organisationnels et du développement économique recommande ce qui suit au
Conseil :
1. approuver le règlement
provisoire, dans la forme générale de l’annexe « 1 » ci-jointe, qui
doit être promulgué par suite de l’approbation de la Commission de l'énergie de l'Ontario;
2. approuver l’entente provisoire de concession, dans la forme générale de l’annexe
« 2 » ci-jointe (qui deviendra une annexe au règlement
provisoire);
3. approuver la présentation du règlement et de l’entente de
concession faite par Enbridge à la CÉO aux fins d’approbation, conformément aux
dispositions de la Loi sur les concessions municipales;
4. demander à la
Commission de l'énergie de l'Ontario de prendre un arrêté d’administration,
avec l’accord des électeurs municipaux, du règlement provisoire ci-joint,
conformément aux dispositions du paragraphe 9(4) de la Loi sur les
concessions municipales;
5. accepter un paiement d’Enbridge d’un
montant de 150 502,50 $ représentant le règlement total et définitif
des droits contestés de permis de terrassement de 2001.
Enbridge
Gas Ltd. is the local distributor of natural gas services in the City of Ottawa
and surrounding area. Enbridge Gas had
Franchise Agreements with each of the eleven former local municipalities to
construct and operate works for the distribution of gas within the geographic
limits of these municipalities. For the
most part, the term of these agreements were for a twenty (20) year
period. A number of those agreements
have expired over the past few years but have been extended by the Ontario
Energy Board (OEB). The most recent
extension to 30 June 2006 by Interim Order 2006-0032 included agreements with
the former municipalities of Nepean, Goulbourn, Vanier, Cumberland, Osgoode,
Ottawa, Rockcliffe Park and Rideau.
The
Municipal Franchise Act (MFAct) is the enabling legislation for City Council to
enter into a Franchise Agreement with Enbridge Gas. The MFAct provides that a municipal by-law granting, extending or
renewing a right to construct or operate a public utility must set forth the
terms and conditions and the period of duration for which such right is to be
granted, and that the by-law must, unless waived by the OEB, receive the assent
of the municipality. The document
embodying the terms and conditions and period upon which the right is to be
granted is referred to as the Municipal Franchise Agreement (MFA). The MFAct also requires that prior to the
enactment of a by-law, the OEB must first approve the terms and conditions and
the period of duration of the agreement.
Before making an order granting its approval or refusing to do so, the
OEB will hold a formal public hearing in this regard.
In
1987, following a hearing to review the adequacy of existing forms of municipal
franchise agreements for the distribution of gas in Ontario, the OEB approved a
new Model Franchise Agreement (1987 MFA) to serve as the template for
negotiations of initial agreements and for the renewal of existing franchises. The 1987 MFA was amended in January 2001,
and is now referenced as the 2000 Model Franchise Agreement (2000 MFA).
The
2000 MFA is the instrument by which a municipality in Ontario consents to the
provision of a gas service within the municipality and to the use of and access
to its highways for that purpose. In
negotiating a new agreement with the City of Ottawa, Enbridge Gas has insisted
that the 2000 MFA developed by the OEB must form the basis of an agreement with
the City. Otherwise, any changes would
need to be approved by the OEB and this would impact the model agreement being
used by natural gas distributors in their dealings with Ontario municipalities.
In negotiating a new Franchise Agreement with Enbridge Gas, staff has been guided and constrained by generally recognized principles of good public rights-of-way management, by the 2000 Model Franchise Agreement, and by the enabling legislation and regulations of the Municipal Act.
Road
Allowance Management
Good municipal management of public rights-of-way or road allowances is required to provide safe and efficient access for many competing uses. Apart from pedestrian and vehicular use, rights-of-way are used for the placement of permanent facilities and equipment for sewer, water, gas, electricity, traffic signals, street lighting, telecommunications, transit and steam heating.
The Federation of Canadian Municipalities has been working with municipalities to assist in addressing the increasing challenges associated with the management of rights-of-way. One product of that work was the establishment of Right-of-way Management Principles (Attachment 3). These Principles had been endorsed by the former municipal Councils and were endorsed again by Council in March of 2001 (ACS2001-TUP-INF-0006).
Model Gas
Franchise Agreement
Beginning in 1998, the Association of Municipalities of Ontario (AMO) with the input of its members, met with the Gas Companies (Union Gas Ltd., Enbridge Consumers Gas and Natural Resources Gas Limited) to make changes to the 1987 MFA. While a number of minor issues were mutually agreed upon, there remained a number of unresolved issues including permit fees, pavement degradation damage costs, compensation, insurance/liability, renewals, legislative changes, default, relocation costs and abandoned pipe. The matters were submitted to the OEB for resolution. The OEB commenced a proceeding (RP-1999-0048) on 01 November 1999. The OEB's decision and the 2000 MFA were released on 11 January 2001 (Attachment 2).
The 2000 MFA incorporated amendments agreed to by the parties leading up to the hearing and during the post hearing discussions. The 2000 MFA did not fully address some issues of principal concern to municipalities based on the Federation of Canadian Municipalities Right-of-way Management Principles endorsed by Council. These concerns included issues around the duration of the agreement, relocation costs, abandoned pipes, alternative easements, construction issues, and fees and compensation.
Over the past few years, there have been many attempts by staff to negotiate terms that would be more advantageous to the City. However, Enbridge has not been amenable to any changes to the 2000 MFA since there would be a requirement to obtain OEB approval of the changes. Based on experience with the OEB, any changes to the Model Franchise Agreement would not be acceptable.
While the 2000 MFA does not address all of the City’s issues, it does provide the benefit of having one agreement for the management of all natural gas installations in the City. At this time, the City continues to work under the agreements of the former municipalities. Many of these have been extended by the OEB for one year terms in anticipation that a new agreement would be endorsed by the City. The OEB has now initiated a process under the MFAct that could see a new agreement imposed on the City. Staff is of the opinion that it would be to the City’s benefit to endorse the new agreement with Enbridge based on the 2000 MFA.
New
Franchise Agreement for the City of Ottawa
A general form of the proposed draft by-law is provided as Attachment 1. The by-law makes reference to the Model Franchise Agreement (Attachment 2) that outlines the terms and conditions of the new agreement. This will be included as Schedule A of the by-law. The by-law also identifies all of the agreements with the former municipalities that are to be repealed.
In terms of background for Recommendation 4, the approved by-law will be submitted to the OEB for approval since the OEB has jurisdiction over the delivery of natural gas. The MFAct requires that consent of the municipal electors be obtained, but also provides that the OEB may dispense with this requirement. Since the provision of natural gas in the City is a well established service in the City, and this is a renewal only, it is reasonable to request that the OEB dispense with this requirement.
The 2000 MFA
developed by the (Ontario Energy Board) OEB forms the basis for this agreement
between the City of Ottawa and Enbridge Gas.
In the late 1990’s through 2000, the OEB undertook an extensive public
consultation including written submissions and oral presentations. The former Region of Ottawa-Carleton made
both written and oral representations along with AMO and various other
municipalities including the City of Toronto.
The City's Legal
Services and Financial Services Branches have been involved in the negotiations
for this agreement and to reach a financial settlement on the outstanding Road
Cut Permit fees.
The OEB report released on 11 January 2001 allowed the charging of fees by municipalities in the 2000 MFA. As such, Enbridge Gas began to pay Road Cut Permit fees on 11 January 2001. However, in passing the new Municipal Act 2001, the Province removed the ability for municipalities to impose fees and charges on gas and hydro distribution companies.
Prior to the changes to the Municipal Act, there were 2 Sections (220.1 and 308) that referenced a municipality’s ability to impose fees and charges. Because both these sections were not changed at the same time, there was a disagreement between the City of Ottawa and Enbridge as to the date that the right to charge fees had been removed.
Regulation 61/01 prohibited municipalities from imposing fess and charges on gas distributors, and came in to effect on 12 March 2001 but referred only to section 220.1 of the Municipal Act. Prior to 2002, the City relied on Section 308, (as well as Section 220.1 of the Municipal Act) to regulate the entry onto, the cutting and reinstatement of City road rights-of-way and the collection of permit fees. Section 308 provided the authority for Council to establish such a By-law:
" For
placing or permitting any person under such conditions as may be agreed upon to
place, construct, install, maintain and use objects in, on, under or over
sidewalks and highways under its jurisdiction, to permit any person to make,
maintain and use areas under and openings in the highways and sidewalks, for
prescribing the terms and conditions upon which the same are to be placed,
constructed, installed, maintained or used and for making such annual or other
charge for the privilege conferred by the by-law as it considers reasonable."
Section 308 of the Municipal Act was repealed on 12 December 2001.
With the filing of Regulation 61/01 in March 2001, which prohibited municipalities from imposing fees and charges on gas and electrical distributors, the OEB on 11 April 2001 amended the 2000 MFA by deleting any reference to permit fees and instead elected to stay silent on fees, leaving it up to provincial regulations to govern on this matter.
In reaction to the Province's actions, Council, at its meeting of 28 March 2001 (ACS2001-TUP-INF-0006) approved a resolution requesting the Province, among other things, to consult with municipalities on the interpretation and financial implications of Regulation 61/01, urging the Province to withdraw Regulation 61/01 and proposing that municipalities be expressly permitted to charge utility companies a permit fee for the use of their rights-of-way, sufficient to cover all administrative and road related costs. Staff followed up on Council's direction by writing and making presentations to the Ministry of Municipal Affairs and Housing (MMAH) on the City's concerns with respect to Regulation 61/01 and by writing to other major Ontario municipalities.
Because the City had always relied on Section 308 of the Municipal Act for charging permit fees, it continued to do so until it was repealed on 12 December 2001. However, Enbridge maintained that the City’s ability to charge fees and permits was removed 12 March 2001 (when the Province filed Regulation 61/01).
In accordance with the City's Road Cut By-law, permit fees in the amount of $313,701.95 had been charged to Enbridge Gas between 12 March 2001 and 12 December 2001 (the date the new Municipal Act received royal assent). This amount has been in dispute between the City and Enbridge in the finalization of the new Franchise Agreement. Due to the ambiguity surrounding the 2 dates and in the interest of finding a resolution to this ongoing dispute, Enbridge has agreed to pay outstanding charges in the amount of $150,502.50. The City will waive all interest charges associated with the disputed fees.
ATTACHMENTS
Attachment 1 –
Draft By-law
Attachment 2 –
Model Franchise Agreement
Attachment 3 –
Federation of Canadian Municipalities Right-of-way Management Principles
DISPOSITION
Legal Services
will finalize the By-law for signature and submit the document to Enbridge for
their submission to the Ontario Energy Board.
Public Works and Services
will administer the Gas Franchise Agreement.
Financial Services will
administer the financial resolution.
ATTACHMENT
1 – DRAFT BY-LAW
BY-LAW NO. 2006 -
A by-law of the City of
Ottawa to authorize a franchise agreement between the City of Ottawa and
Enbridge Gas Company Ltd.
WHEREAS City Council wishes to enter
into the attached franchise agreement with Enbridge Gas Company Ltd.;
AND WHEREAS the Ontario
Energy Board by its Order issued pursuant to the Municipal Franchise Act
on this ________ day of _______________
, 2006 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;
THEREFORE the Council of
the City of Ottawa enacts as follows:
1. The franchise agreement
between the City and Enbridge Gas Company Ltd. attached as Schedule “A” to this
by-law is hereby authorized and the franchise provided for therein is hereby
granted.
2. The Clerk and the Mayor are
hereby authorized 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.
3. The following by-laws of
the old municipalities are hereby repealed:
(a) By-Law No. 1641, passed
by the Council of the Corporation of the County of Carleton on November 22,
1960;
(b) By-Law No. 76-06,
passed by the Council of the Corporation of the Township of Goulbourn on
February 6, 1978;
(c) By-Law No. 97-78,
passed by the Council of the Corporation of the Township of Nepean on September
26, 1978;
(d) By-Law No. 2308, passed
by the Council of the Corporation of the Township of Cumberland on February 12,
1979;
(e) By-Law No. 52-1980,
passed by the Council of the Corporation of the Township of Osgoode on August
5, 1980;
(f) By-Law No. 61/85,
passed by the Council of the Corporation of the Township of Rideau on June 3,
1985;
(g) By-Law No. 89-42,
passed by the Council of the Corporation of the Village of Rockcliffe Park on December
13, 1989;
(h) By-Law No. 8-98, passed
by the Council of the Corporation of the City of Kanata on January 27, 1998;
(i) By-Law No. 42 of 1988,
passed by the Council of the Corporation of the Township of West Carleton on
July 7, 1998; and
(j) By-Law No. 31, passed
by the Council of the Corporation of the City of Gloucester on September 14,
1999.
4. This by-law includes
Schedule “A” annexed hereto and Schedule “A” is hereby declared to form part of
this by-law.
ENACTED AND PASSED this
day of , 2006.
-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-
Enacted
by City Council at its meeting of
2006
-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-o-
LEGAL SERVICES
AMP -
COUNCIL AUTHORITY:
City Council
ATTACHMENT 2 – MODEL
FRANCHISE AGREEMENT
Model Franchise Agreement
THIS AGREEMENT
effective this day of , 20
.
BETWEEN:
the City of Ottawa hereinafter called the
"City"
- and -
The
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 2006- passed by the
Council of the City (the "By-law"), the duly authorized officers have
been authorized and directed to execute this Agreement on behalf of the City;
THEREFORE
the City and the Gas Company agree as follows:
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 City 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 City;
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 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 City;
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 City on the date when this Agreement takes effect,
and any territory which may thereafter be brought within the jurisdiction of
the City;
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.
2. To provide gas service:
The
consent of the City is hereby given and granted to the Gas Company to
distribute, store and transmit gas in and through the Municipality to the City
and to the inhabitants of the Municipality.
3. To Use Highways.
Subject to
the terms and conditions of this Agreement the consent of the City 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 City 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 City 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 City 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.
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:
i. 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 City 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
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 City's
Drainage Superintendent for purposes of the Drainage Act, or such other person
designated by the City 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.
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 City
may do or cause such work to be done and the Gas Company shall, on demand, pay
the City'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 City 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 City 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 City, 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 City from claims for which the Gas Company is
obliged to indemnify the City under Paragraph 9. The insurance policy shall
identify the City 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
City 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.
c. Upon request by the City, 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 City
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 City 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 City 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 City 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:
i. 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,
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 City 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 City 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 City 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 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 City 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 City may remove and dispose of so much of the
decommissioned gas system as the City 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 City 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
City, to the extent such information is known:
i. 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 City; 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 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 CITY OF OTTAWA
By:
___________________________________________
Duly
Authorized Officer
THE
CONSUMERS’ GAS COMPANY LTD.
By:
___________________________________________
DATED
this day of , 2006 .
The City
of Ottawa
-
and -
Enbridge
Gas Distribution Inc.
FRANCHISE
AGREEMENT
THE Enbridge Gas Distribution Inc.
500 Consumers Road
North York, Ontario
M2J 1P8
Attention: Regulatory Affairs Department
ATTACHMENT 3 – FEDERATION OF
CANADIAN MUNICIPALITIES RIGHT-OF-WAY MANAGEMENT PRINCIPLES
The following Right-of-Way
Management Principles were developed through the Federation of Canadian
Municipalities. These principles were
adopted by Council in 2001.